SZLCI v Minister for Immigration and Citizenship [2008] FCA 135

FEDERAL COURT OF AUSTRALIA

SZLCI v Minister for Immigration and Citizenship [2008] FCA 135

SZLCI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1954 OF 2007

EMMETT J

12 February 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1954 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLCI

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J DATE OF ORDER: 12 February 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. 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 1954 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLCI

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE: 12 February 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of Bangladesh. He arrived in Australia on 4 January 2007, and on 10 January 2007 applied for a protection (class XA) visa under the Migration Act 1958 (Cth) (the Act). On 24 February 2007, a delegate of the first respondent, the Minister for Immigration & Citizenship (the Minister), decided to refuse to grant a protection visa. The appellant then applied to the second respondent, the Refugee Review Tribunal (the Tribunal) on 29 March 2007 for review of the delegate's decision. On 14 June 2007, the Tribunal affirmed the decision not to grant a protection visa. The appellant was notified of that decision on 26 June 2007 and on 24 July 2007 he commenced a proceeding in the Federal Magistrates Court seeking Constitutional writ relief in respect of the Tribunal's decision. 2 An amended application was filed on 3 September 2007 and, on 11 September 2007, after a hearing on that day, the Federal Magistrates Court dismissed the application and ordered the appellant to pay the Minister's costs. By notice of appeal of 28 September 2007, the appellant appeals to this Court from the orders of the Federal Magistrates Court. Before dealing with the grounds of appeal, it is desirable to say something about the procedure before the Tribunal and the Tribunal's reasons for its decision. 3 In his application to the Tribunal for review, the appellant informed the Tribunal that a migration agent had been he had an adviser authorised to act for him in relation to the application. The application specified the name, address, telephone number and facsimile number for his agent. On 12 April 2007, the Tribunal wrote to the agent in connection with the application. The letter stated that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. The letter constituted an invitation to the appellant to appear before the Tribunal to give oral evidence and present arguments at a hearing on 12 June 2007. The Tribunal received no response to that invitation, although the letter stated that, if the appellant did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without any further notice to the appellant. 4 An officer of the Tribunal made several attempts to communicate with the appellant's migration agent by telephone prior to the date fixed for the hearing. However, the migration agent's message bank was full on each occasion. There was no appearance on behalf of the appellant before the Tribunal on the day and time fixed. On the afternoon of that day, an officer of the Tribunal spoke to the appellant's migration agent, who said that he, the migration agent, had a psychological condition and he had just awoken, and that is why he did not attend the hearing. He told the Tribunal's officer that he had not been able to contact the appellant and did not know whether the appellant had attended the hearing. He said that he would inform the Tribunal by 9 am the following day whether the appellant sought a postponement of the hearing. 5 At about 10.40 am on 13 June 2007, the Tribunal sent a facsimile communication to the appellant's migration agent, in which the Tribunal indicated that it had not received a response to the invitation to attend a hearing and that the appellant had not appeared at the hearing at the time appointed. The communication of 13 June 2007 went on to say that, if the agent did not wish the Tribunal to proceed to make a decision immediately, detailed reasons for the appellant's failure to attend the scheduled hearing should be given. The migration agent was also requested to indicate whether he sought to have the hearing rescheduled. The communication also indicated that, in the absence of any response, the Tribunal may make a decision without further notice. There was no response to the communication. 6 In its reasons, the Tribunal recorded that it was satisfied that the appellant had been properly notified of the hearing. The Tribunal said that, while it would not wish an applicant to be disadvantaged by the ill health of an adviser, in the present case the appellant had been given two months' notice of the hearing date. Given the nature of the health issues claimed by the migration agent, of which no evidence had been provided, the Tribunal was satisfied that ample time had been provided for alternative arrangements to be made. The Tribunal noted further that the application by the appellant did not appear to disclose claims that fell within the Refugees Convention. In those circumstances, the Tribunal proceeded to make its decision on the review application without taking any further action to enable the appellant to appear before it. 7 The Tribunal found that the appellant is a single male who had attended school for 10 years and holds a trade qualification, which he acquired in Singapore in 2000. The appellant claimed to have resided in Bangladesh from his birth until October 2001, and thereafter to have resided in Singapore. He claimed that he had worked in Singapore for one employer between January 1997 and October 2001, and another employer between October 2001 and January 2007. He was employed in the construction industry. The appellant asserted that he had left Bangladesh because of poverty and that he had no civil, political or financial rights in Bangladesh. He said that, due to his family's poverty, he was denied access to education and was forced into child labour. 8 The Appellant claimed that in Singapore he became a victim of forced labour and earned very little. He said that there was discrimination against foreign workers in Singapore, insofar as Chinese workers earned more than Bangladeshis. He said that the rights of migrant workers in Singapore were not protected. He said that he believed that if he returned to Bangladesh he would suffer even more harshly because of the employment situation. The appellant provided no particulars of any family members anywhere. 9 The Tribunal found that the appellant is a national of Bangladesh and considered his claims to refugee status on that basis. While the appellant appeared to have made some claims of discrimination in relation to Singapore, the Tribunal considered that there was no evidence to suggest that he is a national of Singapore. Rather, the Tribunal considered that the available evidence indicated that the appellant was only a temporary resident of Singapore. In those circumstances, the Tribunal concluded that Bangladesh, as the appellant's country of nationality, is the only country against which his claims to refugee status should be assessed. 10 On the basis of the written information that had been provided by the appellant to the Minister and the Tribunal, the Tribunal was not satisfied that any discrimination or harm that the appellant might face in Bangladesh would be directed at him for any Convention reason. The Tribunal considered that any discrimination or hardship complained of by the appellant appeared to be the result of generalised economic conditions. The Tribunal considered that there was nothing to indicate that the appellant was or would be affected to a greater degree than the population generally. 11 The Tribunal also considered whether the appellant could be considered as a member of a particular social group comprised of child labourers or something similar. However, on the basis of the information provided by the appellant, the Tribunal was not satisfied that there is such a particular social group in Bangladesh. Further, the Tribunal considered that the appellant had not provided sufficient information to it for the Tribunal to be satisfied that the appellant was, in fact, forced to labour as a child in circumstances that might be said to constitute persecution. 12 The grounds of appeal in the notice of appeal of 28 September 2007 are identical to the grounds stated in the amended application to the Federal Magistrates Court of 3 September 2007. There is no suggestion of any error on the part of the Federal Magistrates Court in the notice of appeal. However, in the circumstances, since the appellant appears in person, I propose to construe the notice of appeal as asserting error on the part of the Federal Magistrates Court in not upholding the grounds that are stated in the amended application. 13 The grounds are as follows: · the Tribunal failed to exercise its jurisdiction under the Act, insofar as it did not consider the situation that the appellant could be disadvantaged by the ill health of his migration agent; · the Tribunal failed to consider the appellant's persecution on the basis of discrimination in Singapore; · the Tribunal failed to consider persecution of the appellant as a member of a particular social group consisting of child labourers. 14 There is no substance whatsoever in the second and third grounds. The appellant did not ever claim that Singapore was his country of nationality or that having no nationality it was his country of former residence. He always claimed that he was a national of Bangladesh. Once the Tribunal accepted that the appellant was a Bangladeshi national, it was entitled, indeed, obliged, to determine whether he was outside Bangladesh because of a well-founded fear of being persecuted for a Convention reason. There was no obligation or entitlement to consider whether that was the case in respect of Singapore. Further, it is quite clear that the Tribunal did consider whether the appellant had a well-founded fear of persecution for reason of his membership of a particular social group, namely, child labourers. The Tribunal expressly turned its mind to that question, although it was not invited to do so, and concluded that there was no evidence before it to suggest that there was such a separate group. 15 The first ground may have slightly more disconcerting aspects to it. It is wrong to say that the Tribunal did not consider the possible disadvantage to the appellant by reason of the fact of his migration agent's ill health. The only possible question is whether the way in which the Tribunal dealt with the matter could be said to have constituted a denial of procedural fairness to the appellant. As I have said, the appellant nominated a migration agent for the purposes of acting on his behalf in relation to the application. The migration agent was notified of a hearing date, by letter dated 12 April 2007, some two months in advance of the proposed hearing date. 16 There is no suggestion that the migration agent had suffered from any illness as early as 12 April 2007. Indeed, there was no evidence from the appellant to the Federal Magistrates Court that he did not receive notification of the proposed hearing of 12 June 2007. While he filed an affidavit at the same time as he filed his original application to the Federal Magistrates Court, the affidavit simply asserted that the Tribunal did not give him natural justice and breached procedural fairness in deciding his matter. He does not appear to have given evidence before the Federal Magistrates Court to the effect that he was unaware of the hearing. 17 The migration agent was contacted by telephone by the Tribunal on 12 June 2007 and was unable to inform the Tribunal of whether or why the appellant had not attended the hearing that day. The migration agent was further informed by letter dated 13 June 2007 that it was necessary for some explanation to be given for the non-attendance of the appellant before the hearing on 12 June. There is no evidence that the migration agent was unable to pass that communication on to the appellant. Indeed, there is no evidence that he failed to pass that communication on to the appellant. There are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected to the detriment of that person by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made (see SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [53]). 18 There has been no suggestion of fraud on the part of the appellant's migration agent. While one might feel a sense of disquiet if it be the fact that an applicant was deprived of a hearing by reason of some indisposition on the part of his agent, that of itself is not a basis for interfering with the decision of the Tribunal. There may possibly be – and I express no view about it – circumstances where the Tribunal was aware of indisposition on the part of an agent that resulted in the agent's incapacity to inform his principal. That is not this case and there is no evidence, as I have said, that that is this case. 19 In the circumstances, I am not persuaded that there was any jurisdictional error on the part of the Tribunal. That is the conclusion that was reached by the Federal Magistrates Court. There was no error on the part of the Federal Magistrates Court in dealing with any of the grounds before it. It follows that the appeal must be dismissed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.