SZFHK v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 156 (7 February 2006)

Last Updated: 8 March 2006

FEDERAL COURT OF AUSTRALIA

SZFHK v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 156

SZFHK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

NSD 2287 of 2005

GRAHAM J

7 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2287 OF 2005

BETWEEN:	SZFHK APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	GRAHAM J
DATE OF ORDER:	7 FEBRUARY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The Appellant pay the First Respondent's costs.













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 2287 OF 2005

BETWEEN:	SZFHK APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	GRAHAM J
DATE:	7 FEBRUARY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 What is presently before the Court is an appeal from a decision of a Federal Magistrate in which the Magistrate dismissed a claim for constitutional writ relief in respect of a decision of the Refugee Review Tribunal which was handed down on 23 November 2004. That decision had affirmed a decision reached by the Minister's delegate not to grant a Protection Visa to the Appellant.

2 The matter is unusual because of the fact that the Tribunal was re-constituted between the lodgement of the Appellant's application for review with the Tribunal on 15 March 2004 and the handing down of the Tribunal's decision on 23 November 2004.

3 It is convenient to shortly summarise the history of the matter. The Appellant, who is identified for the purposes of these proceedings as SZFHK was born in China on 15 June 1956. On 8 April 2003 she was issued with a passport by the People's Republic of China and on 24 December 2003 secured an Australian Visitor's Visa. The case was that she was able to secure the passport and the visa because of contacts which her brother had with the appropriate authorities.

4 On 2 January 2004 the Appellant arrived in Australia. On 9 January 2004 she applied for a Protection (Class XA) Visa. On 6 February 2004 the Minister's delegate refused that visa application. As mentioned earlier, the Appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the Minister's delegate's decision on 15 March 2004. On 17 March 2004 the Tribunal acknowledged receipt of the Appellant's application for review and on 14 May 2004 gave notice of an intended hearing by the Tribunal to take place on 7 June 2004.

5 The notice of intended hearing indicated that the Tribunal had considered the material before it in relation to the Appellant's application for a Protection Visa but was unable to make a decision in her favour on that information alone. She was then invited to attend the hearing before the Tribunal to give oral evidence and present arguments in support of her claim. By letter dated 7 June 2004 the Appellant was advised that due to an inability to complete the hearing on 7 June 2004 the relevant hearing would continue on 8 June 2004.

6 The hearing would appear to have occupied a little over two hours on 7 June 2004 and a little less time on the following day. The hearing was presided over by Rosalind Smidt, a member of the Tribunal who retired before a decision was reached on the application for review.

7 On or about 2 July 2004 the Tribunal was re-constituted as a result of Ms Smidt's retirement and her place was taken by Mr P. Gacs. On 22 July 2004 a letter was sent by the Tribunal to the Appellant which has been central to the Appellant's argument upon the current appeal. The letter provided as follows:

‘With regard to your application for review of a decision by the Minister's delegate on your application for a Protection Visa the Tribunal wishes to advise that the Member previously deciding your case is no longer available. Your case has been constituted to another member, namely Mr Peter Gacs. He will now review the files and listen to the tapes of your hearings. The Member has asked me to advise you that since your hearings were held on 7 and 8 June 2004, if you wish to provide any update on the evidence already provided to the Tribunal, you may do so on or before Friday, 6 August 2004." (emphasis added)

8 Without any further hearing before the Tribunal, the Tribunal was reconstituted and decided to affirm the decision of the Minister's delegate not to grant the Appellant a Protection Visa. As indicated earlier, that decision was handed down on 23 November 2004.

9 On 21 December 2004 the Appellant applied to the Federal Magistrates Court of Australia for constitutional writ relief in respect of the decision of the Tribunal. An amended application was filed in the Federal Magistrates Court on 20 April 2005. That matter was heard on 2 November 2005 whereupon Federal Magistrate Scarlett decided the matter adversely to the Appellant dismissing the application and ordering the Appellant, who was the Applicant before him, to pay the First Respondent's costs fixed in the sum of $6000.

10 From that decision the Appellant appealed to this Court by notice of appeal filed 23 November 2005. Following a directions hearing before me on 15 December 2005 the Appellant filed an amended notice of appeal on 23 December 2005. Notwithstanding directions that were given in respect of written submissions no written submissions, have been filed on behalf of the Appellant. However, the Appellant, who appears in person with the assistance of an interpreter, has carefully expressed her arguments. Needless to say it is not open to this Court to conduct a merits review of her case. She concluded her submissions in reply by saying words to the effect, ‘I would like your Honour to give me another chance’. Alas, it is not open to the Court to afford the Appellant another chance unless she is able to establish error sufficient to warrant the grant of constitutional writ relief in relation to the decision of the Tribunal. In his reasons for decision the Tribunal member who decided the matter said ‘I have considerable problems with the applicant's credibility’.

11 The Appellant's case before the Tribunal had been to the effect that she had become unemployed in China and due to an inability to raise funds sufficient to provide medical treatment for her father, he was deprived of care and as a the result passed away on 18 February 2001, whereupon the Appellant set about planning protests against the Chinese Government, the thrust of which was to ensure greater benefits for unemployed people.

12 Her case before the Tribunal was that she came to Australia because of a well-founded fear of being persecuted in China for reasons of political opinion and that she was unwilling to avail herself of the protection of China because of such fear.

13 Under s 65 of the Migration Act 1958 (Cth) (‘the Act’) the Minister was bound to refuse the Appellant's visa application unless it was ‘satisfied’ that the appellant had a well-founded fear of persecution in China for a Convention reason. The Tribunal member concluded that the appellant did not have a well-founded fear of persecution in China for reason of her political views and activities. Without repeating all of the matters to which he referred in his reasons I will quote the following:

‘.. I am unable to accept that the applicant was detained for three months after protest number eight, or for three days after protest number four, or overnight after the third protest. I am prepared to accept that she was questioned and warned several times, but find that this is not sufficiently serious to amount to persecution in the Convention sense.
...
I do not accept that the authorities took any action against her and her group ... I find that the reason the authorities did not act against her was that they considered the content of the documents [which the appellant claimed she was responsible for the publication of] were within the bounds of acceptability and hence did not warrant any repercussions.
...
I do not accept that her and her group's activities were ever of adverse interest to the authorities.’

14 As McHugh J said in Re Minister for Immigration and Multicultural Affairs Ex parte Durairajasingham [2000] HCA 1; [2000] 168 ALR 407 at 423 [67], findings on credibility are ‘par excellence’ the function of the primary decision-maker.

15 The main problem with which the Appellant is confronted in this case is that her evidence was not accepted by the Tribunal and she cannot now seek another merits review of her case. In the circumstances the Appellant has focused her attack upon the unusual feature of the case, namely the change in the composition in the Tribunal between the lodgement of her application for review and the decision of the Tribunal.

16 The Refugee Review Tribunal was established under s 457 of the Act. By virtue of s 458(1) of the Act the Tribunal consists of:

‘(a) a Principal Member; and

(b) a Deputy Principal Member; and

(c) such number of Senior Members and other members as are appointed in accordance with this Act.’

17 In respect of particular reviews such as that sought by the Appellant, the Tribunal was to be constituted in accordance with s 421(1) of the Act by a single member. Section 421(2) provided for the Principal Member to give a written direction about who was to constitute the Tribunal for the purpose of a particular review.

18 The Act contemplates a circumstance such as that which arose in the present case, namely the retirement of a member who had been the subject of a written direction constituting the Tribunal for the purpose of a particular review. Section 422(1) empowered the Principal Member to direct another member to constitute the Tribunal for the purpose of ‘finishing the review’.

19 In exercising the power to direct another member to constitute the Tribunal the Principal Member was constrained to have regard to the objective, contained in s 420(1) of the Act, of providing a mechanism of review that is fair, just, economical, informal and quick.

20 Of importance for present purposes s 422 of the Act provides:

‘(1) If the member who constitutes the Tribunal for the purposes of a particular review:

(a) stops being a member; or
(b) for any reason, is not available for the purpose of the review at the place where the review is being conducted;

the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.

(2) If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.

...’

21 That is just what Member Gacs proceeded to do. The Appellant has submitted that Member Gacs should have conducted another hearing. That is plainly a matter which he was not obliged to do. The Appellant further submits that she was misled by the terms of the Tribunal's letter of 22 July 2004 into thinking that her evidence given on 7 and 8 June 2004 to the Tribunal as originally constituted had been accepted by the Tribunal. With great respect, it is not open to so construe the Tribunal's letter to the Appellant of 22 July 2004.

22 In addressing the court about the unwillingness of the Tribunal to accept evidence given by the Appellant in relation to the proposed treatment of her late father's bone cancer the Appellant submitted that the Tribunal's decision showed a ‘lot of bias’. In my opinion there is nothing in the decision of the Tribunal to suggest bias on the part of the decision-maker.

23 The Appellant submitted that her inability to read English and to understand letters sent to her in English and the failure by her migration agent to explain matters to her in Chinese on a line by line basis, led to her failure to present a stronger case. This of course does not, even if true, found a basis for a case of jurisdictional error on the part of the Tribunal.

24 The Appellant has also submitted that the Tribunal failed to comply with s 424A(1) of the Act by failing to give the Appellant particulars of the matters given in evidence on 7 and 8 June 2004 before the Tribunal which may provide a reason or part of a reason for the Tribunal affirming the decision of the Minister's delegate which was under review.

25 In my opinion s 424A(1) has no function to perform in respect of evidence given before the Tribunal itself. The submission put by the Appellant seems to fly in the face of s 422(2) of the Act which empowers the Tribunal as reconstituted to have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.

26 The Appellant has submitted that the Tribunal failed to comply with its obligation to invite the Appellant to appear before it to give evidence and present arguments on the issues arising in relation to the decision under review as required by s 425(1) of the Act. In my opinion the Tribunal did not breach section 425 in the manner alleged. The Appellant was invited to appear before the Tribunal to give evidence and present arguments and she availed herself of this opportunity on 7 and 8 June 2004. The Tribunal as reconstituted was not obliged to give the Appellant any further opportunity to give evidence and present arguments but, as can be seen from the terms of the letter of 22 July 2004, afforded the Appellant an opportunity to ‘provide any update on the evidence already provided to the Tribunal’ should she wish to do so. In point of fact the Appellant failed to avail herself of that additional opportunity.

27 I can discern no error on the part of the Federal Magistrate and no relevant error on the part of the Tribunal. In the circumstances the appeal should be dismissed with costs.

I certify that the preceding  twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham .

Associate:

Dated: 7 March 2006

Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the Respondent:	S Burnett of Clayton Utz
Date of Hearing:	7 February 2006
Date of Judgment:	7 February 2006