SZIXB V Minister for Immigration and Citizenship and Another [2007] FCA 119 (15 February 2007)

Last Updated: 16 February 2007

FEDERAL COURT OF AUSTRALIA

SZIXB V Minister for Immigration and Citizenship and Another [2007] FCA 119

SZIXB v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
1732 OF 2006

COWDROY J
15 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1732 OF 2006

BETWEEN:	SZIXB Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	15 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed pursuant to Order 35A Rule 3(1)(a) of the Federal Court Rules.
2. The applicant pay the costs of the First Respondent in the sum of $1000 pursuant to Order 62 Rule 4(2)(c) of the Federal Court Rules.
3. The name of the First Respondent be amended to ‘Minister for Immigration and Citizenship’.

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	1732 OF 2006

BETWEEN:	SZIXB Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COWDROY J
DATE:	15 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for leave to appeal from a decision of Federal Magistrate Driver delivered on 21 August 2006. The application before Driver FM sought judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 12 April 2006 handed down on 9 May 2006 refusing to grant a Protection visa to the applicant.

2 The applicant did not appear at the hearing. The Minister has made application for dismissal of the proceedings pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). This subsection is applicable to dismissal of an appeal. Since the proceedings presently before the Court comprise an application for leave, it is appropriate that the proceedings be dismissed pursuant to Order 35A Rule 3(1)(a) of the Federal Court Rules. Before doing so however the Court will consider the applicant’s claims.

3 The applicant is a citizen of the People’s Republic of China (‘the PRC’) who claimed fear of persecution by reason of her adherence to Falun Gong. The applicant claimed she had been a Falun Gong practitioner since 2002, after being introduced to it by her cousin who was subsequently arrested and sentenced. The applicant claimed she distributed literature and set up a study group. The applicant claimed that whilst she was practising the police searched and arrested her along with other practitioners. The applicant claims after her arrest she was detained for two weeks and brutalised by the Public Security Bureau (‘PSB’) and upon her release was warned to cease her practice of Falun Gong. The applicant claims she subsequently moved to Australia and continued to practise Falun Gong.

4 The Minister refused the applicant’s application for a protection visa on 23 January 2006. On 27 February 2006 the applicant applied to the Tribunal for a review of that decision. On 8 March 2006 the Tribunal sent the applicant a hearing invitation. No reply was received to the hearing invitation and the applicant failed to attend the hearing.

THE DECISION OF THE TRIBUNAL

5 The Tribunal subsequently made a decision on the evidence available to it in accordance with s 426A of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal found the claims of the applicant to be vague and generally lacking in details. No details were provided about her activity as a study group leader in charge of organising Falun Gong practice. Without further detail, clarifications, corroborative evidence and without having had the opportunity to explore the claims with the applicant at the hearing, the Tribunal did not accept that the applicant was a Falun Gong practitioner. The Tribunal further did not accept the appellant’s claims of arrest and brutalisation or that since her arrival in Australia she had become a member of local Falun Gong organisations.

GROUNDS BEFORE THE FEDERAL MAGISTRATE

6 In an amended application filed on 14 August 2006 the applicant asserted a breach of s 425(1) of the Act and procedural unfairness.

THE DECISION OF THE FEDERAL MAGISTRATE

7 Driver FM found that although the applicant did not receive the hearing invitation sent by the Tribunal to the address nominated by the applicant, the Tribunal met its obligation under s 425 of the Act. The application was dismissed pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules.

APPLICATION FOR LEAVE TO APPEAL

8 In the draft notice of appeal annexed to the application for leave to appeal, the applicant claims that the Tribunal failed to comply with s 425 of the Act. In an accompanying affidavit sworn on 8 September 2006 the applicant claims that the judgment of Driver FM was made in breach of s 13 of the Federal Magistrates Act 1999 (Cth) because his Honour conducted the application without an oral hearing.

FINDINGS

9 Section 24(1)(d) of the Federal Court Act 1976 (Cth) empowers this Court to hear appeals from judgments of the Federal Magistrates Court. Section 24(1A) thereof provides, inter alia, that an appeal shall not be brought from a judgment of the Federal Magistrates Court which is interlocutory, unless this Court or a Judge gives leave to appeal.

10 The decision of Driver FM was made pursuant to Rule 44.12 of the Federal Magistrates Court Rules, and as such is an interlocutory decision. Accordingly a grant of leave is essential. In considering whether a grant of leave should be made the Court must determine whether, in all the circumstances, the decision is attended by sufficient doubt to warrant its being reconsidered and whether substantial injustice would result if leave were refused (see Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 at 398-399).

11 With regard to the claim in the draft Notice of Appeal that the Tribunal failed to comply with s 425A of the Act, Driver FM found:

‘[6] The applicant denies receipt of the hearing invitation which appears on pages 47 and 48 of the court book. That letter was sent to the applicant at the address she had nominated. The applicant may not have received it, but the RRT met its obligation under s 425 of the Migration Act to invite the applicant to a hearing. The RRT could possibly have done more. The applicant had provided a mobile telephone number in her review application (court book p 43). There is no indication in the court book that there was an attempt to contact the applicant on that telephone number. However, while the RRT could possibly have done more it seems clear that it met its statutory obligation, Minister for Immigration v SZFHC [2006] FCAFC 73.’

His Honour accordingly dismissed the allegation of a breach of s 424A of the Act.

12 Pursuant to s 424 of the Act the Tribunal is required to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in the review. Section 425A of the Act requires notice to be given of the hearing in any of the methods prescribed in s 441A of the Act. Section 441A(4)(b) and s 441A(4)(c)(i) provide that notification may be given by dispatching the document by prepaid post to the last known address for service provided to the Tribunal by the applicant. Pursuant to s 441C(3) a person is deemed to have received the document sent by the Tribunal seven working days after the date of the document.

13 If the statutory procedure for notification is carried out then pursuant to s 422B of the Act the Tribunal has no further obligations to the applicant in respect of the invitation. The Tribunal in these circumstances is authorised to proceed to a hearing pursuant to s 426A of the Act: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [26] – [32].

14 The Court finds no error in the decision of Driver FM in respect of the ground raised in the draft notice of appeal.

15 As to the alleged breach of s 13 of the Federal Magistrates Act 1999 (Cth), the record shows that the applicant appeared before Driver FM in person. Accordingly the claim made in the applicant’s affidavit accompanying her application for leave to appeal that judgment was given ‘without an [sic] formal oral hearing’ has no merit.

16 Since the decision of Driver FM is plainly correct and not attended by any doubt, the Court is satisfied that the applicant’s application for leave to appeal would have been dismissed had she appeared before the Court today.

17 The Minister has sought an order that the applicant pay the costs of the Minister in the sum of $1000. Since this is within a reasonable range of costs the Court will make the order sought pursuant to Order 62 Rule 4(2)(c) of the Federal Court Rules.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 15 February 2007

Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	15 February 2007
Date of Judgment:	15 February 2007