FEDERAL COURT OF AUSTRALIA SZINA v Minister for Immigration and Citizenship [2007] FCA 715 SZINA v MINISTER FOR IMMIGRATION AND CITIZENSHIP & REFUGEE REVIEW TRIBUNAL NSD 348 OF 2007 MIDDLETON J 11 MAY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 348 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZINA Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: MIDDLETON J DATE OF ORDER: 11 MAY 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Refugee Review Tribunal be joined as the second respondent to the proceedings. 2. The appeal be dismissed. 3. The appellant pay the first respondent's costs of the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 348 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZINA Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: MIDDLETON J DATE: 11 MAY 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a federal magistrate of 20 February 2007dismissing an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 16 February 2006. 2 The appellant is a citizen of the People's Republic of China who arrived in Australia on 22 September 2005. The appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs and a delegate of the first respondent refused the application on 3 November 2005. On 6 December 2005 the appellant applied to the Tribunal for a review of that decision. THE TRIBUNAL'S DECISION 3 In her application, the appellant claimed to have a well-founded fear of persecution for her religious beliefs as a member of an underground church. The appellant claimed to have helped print leaflets and attract new members. At the end of 2004, the appellant's relative, who had introduced her to Christianity, disclosed the appellant's activities to the authorities under torture. The appellant claimed her home was searched, that she was taken in by police for questioning, and was beaten and threatened with imprisonment. The appellant claimed that her husband knew an official in the government and with that person's help the appellant was released from detention. 4 On 21 December 2005 the Tribunal sent to the mailing address in the application for review a letter inviting the appellant to attend a hearing scheduled for 30 January 2006. A response to the hearing invitation was received by the Tribunal on 29 January 2006, which indicated the appellant wished to attend the hearing. However, the appellant did not appear at the hearing on the scheduled date and, in the circumstances, the Tribunal proceeded to make a decision under s 426A of the Migration Act 1958 (Cth) ('the Act'). No attempt was made to explain her failure to attend the scheduled hearing. 5 The Tribunal stated that, on the insufficient details provided, it was not satisfied the appellant invoked obligations on Australia. Her application raised issues of which it required further details. Based on the evidence currently before it, the Tribunal was not satisfied the appellant was a sincere and genuine Christian or that she was a practitioner. Neither was the Tribunal satisfied the appellant could be imputed with such practise in the past or had a real chance of being imputed as a Christian should she return to China. The Federal Magistrate's Decision 6 On 17 March 2006 the appellant sought judicial review in the Federal Magistrates Court. Before the federal magistrate the appellant relied upon an amended application filed on 20 June 2006 which raised one ground being that the Tribunal failed to carry out its statutory duty under s 424A of the Act. 7 At hearing the appellant indicated she had received written submissions from the respondent but had not had these translated. The federal magistrate adjourned for a brief period to allow the court interpreter to read the submissions to the appellant. 8 His Honour considered the relevant legislation and found that the material in the court book and the Tribunal's decision indicated all the provisions of the Act had been complied with and the Tribunal was entitled to proceed under s 426A of the Act. The appellant indicated that she wished to participate in the court-sponsored legal advice scheme but the allocated panel adviser was unable to contact her. As written advice was forwarded, the federal magistrate was satisfied that the appellant had been provided with an opportunity to seek help with her application. No explanation was given to the federal magistrate of the appellant's failure to attend the scheduled Tribunal hearing although the opportunity to do so was provided by the federal magistrate. The federal magistrate made the following observations at [19] to [24]: As the applicant did not attend the scheduled Tribunal hearing, application was decided on the papers before the Tribunal. Based upon the material before it, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal member was unable to be satisfied from the evidence before him that the applicant faces a real chance of persecution should she return to [China] now or in the foreseeable future. Ms Pownall submits in her written submission that it is clear from the Tribunal reasons that it was unable to reach the state of satisfaction required under the Act because of the inadequacy of detail in the applicant's evidence. It was the lack of information provided that formed the Tribunal's decision to affirm the decision of the delegate. The lack of information does not amount to "information" for the purposes of s 424A(1): see SZBCS v Minister for Immigration [2005] FCA 1457 per Bennett J at [33] and VAF v Minister for Immigration 206 ALR 471. The circumstances of non attendance at the Tribunal hearing and the member not being satisfied by sufficient details of the applicant's claim is also considered in SZEZI v Minister for Immigration [2005] FCA 1195 ("SZEZI"). In that case, Allsop J found that the applicant did not attend the Tribunal hearing and His Honour records the relevant reasons from the Tribunal decision at [29]: On one view, it might be said that since the only information that was before the Tribunal about the appellant's circumstances was information not withdrawn from the operation of s 424A(1) by s 424A(3)(b), it must be that that information was the reason or part of the reason for the decision. That is too simplistic an analysis. In SZECF I discussed the purpose of s 424A. Its operation is to be understood conformably with that purpose. Whilst in some cases an "unbundling" is necessary in order, sensibly, to apply s 424A to the expressed reasons of the Tribunal, here, the reason for the decision is plain. The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason. In SZCIA v Minister for Immigration [2006] FCA 238 which is another matter where the applicant did not attend the Tribunal hearing, the Federal Court emphasised the need to make an evaluation of the Tribunal's reasons. Justice Allsop stated at [9], [11] and [12] of that decision: 9. The Tribunal after dealing with the legislation and applicable law referred to the departmental file, which was before the Tribunal. It is clear from the cases dealt with up to and including SZEEU v Minister for Immigration and Multicultural and IndigenousAffairs [2006] FCAFC 2 that the departmental file may well contain information the subject of s 424A and within the meaning of that section. However, as I sought to make clear in SZEEU at [208] – [216], and in [216], whether information is the reason or a part of the reason depends upon a judgmental analysis of the reasons of the Tribunal for why the Tribunal came to the view it did. 10. … 11. The Tribunal's obligation in relation to the grant or refusal of visas is contained within ss 36 and 65 in particular of the Migration Act. If the Tribunal is not satisfied that Australia has protection obligations in relation to the applicant the Tribunal must refuse the visa. Thus, it is necessary to understand why it was that the Tribunal reached the view that it did in relation to this applicant's claims, and in particular whether any information was the reason or a part of the reason for the decision. 12. In my view the reason for the decision was, and was only, that the Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state. The reason for the decision was simply, and no more than, the absence of material which it required to reach a state of satisfaction, no findings of fact remain… As in SZEZI, this was not the reason or part of the reason for the Tribunal's decision. It was referred to by the Tribunal merely as another piece of information which it considered crucial and intended to discuss with the applicant, had she chosen to attend the hearing. The reasoning of Allsop J in SZEZI and SZCIA v Minister for Immigration applies to the present case. The Tribunal did not make positive findings of fact about the position of the applicant, but rather rejected her claims because of its inability to be satisfied on the lack of information before it, that Australia owed protection obligations to her under the Refugees Convention. This proposition is clear from the Tribunal's conclusion at CB 68. 9 His Honour found no jurisdictional error and dismissed the appeal. GROUNDS OF APPEAL 10 In the notice of appeal filed on 8 March 2007 in this Court, the appellant raised four grounds of appeal: that the Tribunal's reasoning was not rational or logical; that the Tribunal failed to carry out its statutory duty by failing to consider s 424A of the Act; that the appellant was not given an opportunity to explain her case; and that the federal magistrate failed to consider her application. 11 On 23 March 2007 a deputy registrar of this Court directed the appellant file and serve written submissions no later than five clear working days before the hearing unless otherwise directed. I merely observe that no such written submissions have been served or filed. CONSIDERATION 12 The first ground of appeal was not argued before the Federal Magistrates Court. Leave is required to argue on appeal an issue not raised below. The Court must be satisfied it is expedient and in the interests of justice for the issue to be raised for the first time on appeal: see SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129. Leave to rely on this ground is refused because it has no real prospect of success and there would be no utility in granting leave. A fair reading of the Tribunal's reasons shows them to be logical and rational given that the Tribunal based its decision on the absence of material, it being required to meet a certain state of satisfaction. 13 I should indicate also that in the Tribunal's decision and the reasons for decision there is not a scintilla of evidence to suggest the Tribunal was prejudiced or biased against the appellant as was suggested by the appellant before me this day. 14 As to the second ground of appeal regarding the appellant's complaint in the proceedings below, namely, the allegation of a breach of s 424A of the Act by the Tribunal, no attempt has been made to explain how the federal magistrate erred in his treatment of this allegation. In my view, the findings of the federal magistrate in relation to this complaint are correct for the reasons given by his Honour. 15 The third ground has no merit. The appellant was invited to appear before the Tribunal but did not do so. No explanation was offered for her non-appearance despite the appellant being given the opportunity by the federal magistrate to provide an explanation. The appellant tells me that she was working on that day and therefore did not attend. This in my view is not a satisfactory explanation and in any event, is one which has now only just been provided. The appellant also says that she was not given an opportunity to explain her case before the federal magistrate; I cannot accept this, as the appellant in my view was given full opportunity make all submissions before the federal magistrate that she wished to make in the circumstances. 16 The fourth ground does not identify any error in the way in which the federal magistrate dealt with the appellant's application. The reasons reveal the Federal Magistrates Court dealt with the ground sought to be agitated by the appellant. His Honour did not find any error in the Tribunal's decision nor, in my view, was any error apparent. 17 In my view, the approach of the federal magistrate and his Honour's conclusion were correct and accordingly the appeal should be dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate: Dated: 18 May 2007 Counsel for the Appellant: The Appellant appeared in person. Counsel for the Respondent: A Markus Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 11 May 2007 Date of Judgment: 11 May 2007