FEDERAL COURT OF AUSTRALIA WZAOB v Minister for Immigration and Citizenship [2011] FCA 162 Citation: WZAOB v Minister for Immigration and Citizenship [2011] FCA 162 Appeal from: WZAOB v Minister for Immigration & Anor [2010] FMCA 868 Parties: WZAOB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: WAD 369 of 2010 Judge: NORTH J Date of judgment: 21 February 2011 Date of hearing: 21 February 2011 Place: Perth Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 17 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondents: Mr D Estrin Solicitor for the Respondents: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 369 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: WZAOB Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: NORTH J DATE OF ORDER: 21 FEBRUARY 2011 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the first respondent's costs of the appeal, THE COURT DIRECTS THAT: 3. Any reference in the transcript of proceedings to the name of the appellant be replaced by the words "the appellant." Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 369 of 2010 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: WZAOB Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: NORTH J DATE: 21 FEBRUARY 2011 PLACE: PERTH REASONS FOR JUDGMENT 1 Before the Court is an appeal from a judgment of the Federal Magistrates Court delivered by Lucev FM on 10 November 2010. The federal magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 28 May 2010, which affirmed the decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant. THE CLAIMS 2 The appellant is a citizen of China who claimed to be a practitioner of Falun Gong. She said she joined Falun Gong in January 2001. She said she was warned by the Chinese local police in March 2003 against practising Falun Gong. She said she practised underground with a small group of fellow believers. She said that her group had to stop Falun Gong activities, but nevertheless she continued to practise at home and spoke with other followers of Falun Gong. She said that in August 2009 she was detained for three months and sacked by her employer. She said that if she returned to China, she would not be able to practise Falun Gong and she would be bullied and persecuted by the Chinese government. 3 The appellant was invited to an interview with the delegate of the first respondent. She did not attend. THE DECISION OF THE TRIBUNAL 4 On 8 April 2010, the appellant applied to the Tribunal for a review the delegate's decision. On 22 April 2010, the Tribunal wrote to her seeking further information about her claims. The letter indicated that the information was relevant because it may cause the Tribunal to find that the appellant's claim was not genuine. She did not respond to the letter which was sent pursuant to s 424A of the Migration Act 1958 (Cth) (the Act). The Tribunal also invited the appellant to a hearing before the Tribunal, to be held on 27 May 2010. The letter was sent to the appellant's last address provided to the Tribunal. The Tribunal received no response to this letter and the appellant did not appear at the hearing. Pursuant to s 426A of the Act, the Tribunal proceeded in her absence to make a decision. 5 The Tribunal observed that the appellant's claims were vague and lacking in detail. The statement given by the appellant was sparse and vague. It observed that the appellant's failure to attend the hearing meant that the Tribunal could not test her claims. The Tribunal referred to a number of inconsistencies between the protection visa application form and the appellant's written statement attached to the application. The Tribunal also observed that departmental records showed that she had travelled to Australia twice in 2008 and not sought protection during those visits. Then, since her arrival in September 2009, she did not seek protection until December 2009. The Tribunal considered that the appellant would, if her fears were genuine, have sought protection at the first available opportunity. Thus, the Tribunal rejected each of the elements of her claim. THE JUDGMENT OF THE FEDERAL MAGISTRATES COURT 6 The appellant then applied to the Federal Magistrates Court for a review of the decision of the Tribunal. The grounds of the application were as follows: (a) the Tribunal decision involved an important exercise of the power conferred by the Migration Act and the Migration Regulations 1994 (Cth); (b) there was no evidence or other material to justify the making of the tribunal decision; and (c) that she was a real Falun Gong practitioner "tortured by my original government." 7 The federal magistrate said that ground 1 did not raise any legal ground of review. The federal magistrate rejected the second ground. He said that the Tribunal determined the matter on the evidence before it. He said the Tribunal was not satisfied on the basis of the evidence before it that the appellant's claims had been made out. He said that finding was open to the Tribunal and the Tribunal had committed no jurisdictional error. The federal magistrate further held at [24]: The applicant's application was rejected because, amongst other reasons, she failed to appear before the Tribunal and address any concerns it may have had about her claims. Where, as here, an applicant fails to attend a Tribunal hearing, upon an invitation to attend, rejection of the application is an "inevitable consequence" of the non-attendance. 8 Finally, the federal magistrate said that the third ground was an impermissible attempt to obtain merits review. He said that the grounds of appeal did not demonstrate any jurisdictional error. 9 The federal magistrate then went on to consider whether the Tribunal had complied with the requirements of procedural fairness even though the appellant had not raised this as a ground. The federal magistrate discussed the operation of ss 424A, 425, 441A(4)(c)(i), 441C(4), and 426A(1) of the Act and determined that the Tribunal had complied with the statutory requirements. In particular, the federal magistrate dealt with a submission made by the appellant that she did not receive the s 425 invitation because an overseas student who was collecting her mail did not pass on the Tribunal's letter to her. The federal magistrate concluded at [36]: Even assuming that the facts are as asserted by the applicant in relation to her alleged non-receipt of the invitation to the Tribunal hearing, no denial of procedural fairness occurred. THE NOTICE OF APPEAL 10 On 29 November 2010, the appellant filed a notice of appeal in this Court. The grounds of appeal were as follows: 1. The decision involved an important exercise of the power conferred by the Migration Act and Regulations. 2. FEDERAL MAGISTRATE LUCEV failed to consider there was no evidence or the other materials to justify the decision made by the Refugee Review Tribunal. 3. FEDERAL MAGISTRATE LUCEV failed to consider I am a real Falun Gong practitioner, and I was tortured by the government of my original country. CONSIDERATION 11 The first ground of appeal was identical to the first ground of appeal relied upon before the federal magistrate. The federal magistrate was correct to determine that this ground does not raise any legal ground of review. 12 The second and third grounds of appeal alleged that the federal magistrate failed to consider, first, whether there was evidence to justify the decision made by the Tribunal, and second, whether the appellant was a real Falun Gong practitioner. 13 The second ground of appeal is unsustainable because as a matter of fact the federal magistrate gave consideration to whether there was evidence to justify the decision of the Tribunal. This was the very subject of the federal magistrate's discussion in [23] and [24]. 14 The third ground of appeal was similar to the third ground of appeal before the federal magistrate and appears to assume that the federal magistrate was required to consider the merits of the claim of the appellant to be a Falun Gong practitioner. The function of the federal magistrate was to conduct judicial review of the Tribunal's decision, not to assess the merits of the claims. 15 The appellant appeared at the hearing of the appeal. She was not legally represented but had the assistance of an interpreter in Mandarin. When asked to elaborate on the grounds of appeal, the appellant replied that she was a real Falun Gong practitioner. Again, this appeared to be an invitation to this Court to consider the merits of her claim. That is not a function which this Court may perform. The fact finding function is a function for the Tribunal alone. The appellant did not raise any oral arguments which demonstrated jurisdictional error committed by the Tribunal. 16 Finally the appellant, when asked why she did not attend the hearing before the delegate or the Tribunal, replied that she had not received the letters. She did not rely on failure of an overseas student to collect her mail. Rather, she said that she had moved house. She was not able to tell the Court the addresses at which she resided or the dates of her several shifts. She did not advise the Department of Immigration and Citizenship of these changes of address. 17 As explained by the federal magistrate, the statutory provisions deem the appellant to have received the invitation to the hearing following despatch by the Tribunal to the last notified address. Quite apart from the operation of the statutory provisions, I would not be satisfied from the evidence given by the appellant that she did not receive the invitation to the hearing. It follows that the appeal will 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 North. Associate: Dated: 1 March 2011