SZLQW v Minister for Immigration and Citizenship [2008] FCA 1279 (19 August 2008)

Last Updated: 25 August 2008

FEDERAL COURT OF AUSTRALIA

SZLQW v Minister for Immigration and Citizenship [2008] FCA 1279

MIGRATION – failure of appellant to attend – appeal determined in absence of appellant – dispensing with requirement to state grounds of appeal – merits review


Federal Court of Australia Act 1976 (Cth), ss 24, 25
Migration Act 1958 (Cth), ss 425A, 426A

Federal Court Rules 1979 (Cth), O 52


Abebe v Commonwealth [1999] HCA 14, 197 CLR 510 considered
Grey v Mango Pre Paid Calling Cards Pty Ltd [2004] FCA 1664, 141 FCR 370 considered
Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 considered
Lazar v Taito (Aust) Pty Ltd [1985] FCA 35; (1985) 5 FCR 395 considered
Nadezhkin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 128 considered
Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA followed
SAAK v Minister for Immigration and Multicultural Affairs [2002] FCA 367, 121 FCR 185 considered
SZASL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1697 considered
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, 228 CLR 152 followed
SZCQR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 724 followed
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, 237 ALR 64 followed
SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1, 100 ALD 1 followed
SZIFB v Minister for Immigration & Citizenship [2007] FCA 1727 followed
SZITO v Minister for Immigration & Citizenship [2008] FCA 758 considered
SZLQW v Minister for Immigration [2008] FMCA 782 cited
SZLZM v Minister for Immigration & Citizenship [2008] FCA 1263 considered
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123, 206 ALR 471 considered
Zegarac v Dellios [2007] FCAFC 58 followed


SZLQW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR
NSD 951 OF 2008

FLICK J
19 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY	NSD 951 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLQW Appellant

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

JUDGE:	FLICK J
DATE OF ORDER:	19 AUGUST 2008
WHERE MADE:	SYDNEY

THE ORDERS OF THE COURT ARE:

1. The appeal be dismissed.

2. The Appellant to pay the costs of the First Respondent.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY	NSD 951 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLQW Appellant

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

JUDGE:	FLICK J
DATE:	19 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The Appellant was born in Jakarta, Indonesia, in August 1973. He arrived in Australia on 1 May 2007 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) Visa on 23 May 2007. He claimed to have a well founded fear of persecution due to official corruption. A delegate refused to grant that visa on 20 June 2007 and an application was made to the Refugee Review Tribunal on 17 July 2007 for review. The Tribunal by way of a decision signed on 5 October 2007 affirmed the decision not to grant the protection visa.

2 An application was thereafter made to the Federal Magistrates Court on 20 November 2007 for review by that Court of the Tribunal’s decision. The Federal Magistrates Court dismissed the application: SZLQW v Minister for Immigration [2008] FMCA 782. The Appellant now appeals to this Court.

3 Today, when the matter was called on for hearing, there was no attendance by the Appellant. The Appellant, however, had been advised of the date and time of the hearing of this appeal by way of a letter from the National Appeals Registrar of this Court dated 22 July 2008. On behalf of the First Respondent, an application was then made for the appeal to be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). Rather than dismissing the appeal, it was considered that the more prudent course was to proceed to hear the appeal in the absence of the Appellant. Such a course is permitted by O 52 r 38A(1)(d) of the Federal Court Rules. Rule 38A provides as follows:

Absence of party (1) If a party is absent when an appeal is called on for hearing, the Court may: (a) order that the hearing not proceed unless the appeal is again set down for hearing or such other steps are taken as the Court directs; or (b) adjourn the hearing; or (d) proceed with the hearing, either generally or in relation to any claim for relief in the appeal. (2) If the Court proceeds with the hearing under paragraph (1) (d), the Court may: (a) set aside or vary any order made after so proceeding; and (b) give directions for the further conduct of the appeal.

4 A course of proceeding to hear an appeal in the absence of an appellant is a course which at least ensures that the substance of the appeal has been addressed, albeit without the assistance of the appellant. It is a course which has previously been invoked in the hearing of migration appeals, eg Nadezhkin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 128; SZASL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1697; VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [2], [2004] FCAFC 123; 206 ALR 471 at 472 per Finn and Stone JJ.

5 The Grounds of Appeal as formulated in the Notice of Appeal are as follows:

1. The Tribunal failed to carry out its statutory duty as the Tribunal Member failed to fully consider the current situation of Indonesia is unstable and it is dangerous for me to go back to Indonesia. 2. The Tribunal failed to exercise its jurisdiction by not observing procedures which it was required by the Act to observe.

6 Both Grounds, it should be observed at the outset, fail to expressly identify any error committed by the Federal Magistrate. By failing to identify any such error, the Appellant has not stated "the grounds relied upon in support of the appeal" as required by O 52 r 13(2)(b) of the Federal Court Rules. A failure to comply with that requirement, however, does not render an appeal incompetent: Zegarac v Dellios [2007] FCAFC 58 at [7] per North J (Weinberg and Jessup JJ agreeing).

7 No jurisdiction is conferred upon this Court to conduct a review of the Tribunal’s decision upon the basis invited by the Notice of Appeal. The relevant jurisdiction of this Court is its appellate jurisdiction to entertain an appeal from a decision of the Federal Magistrates Court: Federal Court of Australia Act, s 24(1)(d). See also: SZLZM v Minister for Immigration & Citizenship [2008] FCA 1263; SZITO v Minister for Immigration & Citizenship [2008] FCA 758 at [4]–[5], [32] per Greenwood J.

8 Notwithstanding the form of a notice of appeal, it may be that in some circumstances this Court should construe grounds of appeal as but an inelegant attempt to advance a contention that a Federal Magistrate has committed error by not concluding that a Tribunal has committed jurisdictional error. Especially may this be the case where an appellant is unrepresented. But this Court, it is considered, should be astute in ensuring that it is not drawn into exercising an original jurisdiction which it does not possess and an original jurisdiction vested solely in the Federal Magistrates Court: see, ss 476 and 476A of the Migration Act 1958 (Cth). The constraints imposed by the Commonwealth legislature upon the jurisdiction of this Court must be observed.

9 In all cases a notice of appeal should be construed with a view to determining whether it does as a matter of substance set forth grounds which can be properly pursued on appeal. If it does, it may thereafter simply be a question as to whether an order should be made dispensing with compliance with any requirement of the Federal Court Rules pursuant to O 1 r 8. Although compliance with those Rules should not be lightly put aside, compliance should not become an "instrument of oppression". Equally, however, the fact that a party may be unrepresented and may not comply with Rules of Court cannot be the occasion for this Court exercising a jurisdiction it simply does not possess. Order 1 r 8 confers a "very wide discretion on the Court": cf Lazar v Taito (Aust) Pty Ltd [1985] FCA 35; (1985) 5 FCR 395 at 414 per Neaves J; Grey v Mango Pre Paid Calling Cards Pty Ltd [2004] FCA 1664 at [53], [2004] FCA 1664; 141 FCR 370 at 382–3. And the power conferred by O 1 r 8 "may be exercised ... where there is no apparent injustice and the alleged error can only be one of procedure": [1985] FCA 35; (1985) 5 FCR 395 at 403–4 per McGregor J. It has also been said that "[t]here is no general test to be applied in exercising the discretion given under O 1 r 8, save that the Court ought to do what justice appears to require": Rishmawi v Minister for Immigration & Multicultural Affairs [1999] FCA 611 at [7]. Kiefel J there concluded that a letter written by the applicant in intended commencement of an application for judicial review should be taken as her application under the Rules. See also: SAAK v Minister for Immigration and Multicultural Affairs [2002] FCA 367 at [43]–[55], [2002] FCA 367; 121 FCR 185 at 193–5 per North, Goldberg and Hely JJ.

10 In the present proceeding, the Respondent Minister contended that the Notice of Appeal should be construed as implicitly meaning that the Federal Magistrates Court erred in not concluding that the Tribunal itself erred in either of the two ways set forth in the Notice of Appeal. To the extent that the Notice of Appeal does not comply with the requirements imposed by the Federal Court Rules, compliance -- it was said -- should be dispensed with.

A FAILURE TO CARRY OUT ITS STATUTORY DUTY?

11 Upon the approach advanced on behalf of the Respondent Minister, the first Ground of Appeal may thus be construed as a contention that the Federal Magistrates Court erred by failing to conclude that the Tribunal had not carried out "its statutory duty".

12 So construed, there remain at least two fundamental difficulties confronting the Appellant, namely: the fact that there was little material before the Tribunal upon which it could form any conclusion as to whether or not it was "dangerous" for the Appellant to return to Indonesia, and the fact that this Ground (in any event) impermissibly seeks merit review.

13 Although it is correct to observe, as did the Tribunal, that there may be no onus upon a claimant, it is equally clear that a decision-maker need not make out a claimant’s case for him. "[I]t is for the applicant for a protection visa to establish the claims that are made": SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40], [2006] HCA 63; 228 CLR 152 at 164 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; SZIFB v Minister for Immigration & Citizenship [2007] FCA 1727 at [10] per Jacobson J.

14 In the present case, the now Appellant provided only scant information to the Department or the Tribunal. The entirety of that information is substantially that set forth as follows in his application made to the Department:

I was a business man. I owned a grocery business. I supply grocery to the government, recently the President tried to strengthen anti-corruption so my business always by the law. One day a government official asked me to join him and other people to do illegal things. They wanted to corrupt the government and steal money. I knew this was not right so I refused. They became very angry and caused me a lot of trouble as revenge. They make me go out of business. I reported to police but they did not do anything. The government official continue to cause trouble, they burn my business. I ran away but they chased me. I was in hiding for a few days while arranging travel documents. Then I flee to Australia seeking protection.

15 It was thus not surprising that the Tribunal was not satisfied that the now Appellant was a person to whom Australia owed protection obligations under the Refugee Convention. The Tribunal relevantly concluded:

The Tribunal finds that the applicant’s claims are very brief, and that they lack crucial details. He has provided no details of the nature of his business’s involvement in supplying groceries to the government. He stated that a government official suggested he become involved in corrupt activities, but he did not provide details of those activities. He gave no details of how the government official caused him to go out of business, or the circumstances in which his business burned down. He provided no details of the circumstances in which he reported his problem to the police, or the circumstances of their claimed failure to take action. The Tribunal invited the applicant to appear before the Tribunal to give oral evidence and present arguments relating to his claims, and to explore further and test the veracity of his claims, but he did not attend the hearing. The applicant provided no further material or information to the Tribunal with his review application. Given the scant details provided by the applicant regarding his claims, the Tribunal is not satisfied on the evidence before it that there is a real chance that the applicant would be persecuted for a Convention reason if he were to return to Indonesia. The Tribunal is therefore not satisfied that the applicant has a well founded fear of persecution within the meaning of the Convention.

16 The conclusions reached by the Tribunal were all based upon findings of fact open to be made by the Tribunal. The Ground is but an invitation for this Court to conclude that the Tribunal would have reached a different factual conclusion had it "fully" considered the material before it. But the task of making findings of fact is a task entrusted by the legislature to the Tribunal. The "weight" to be given to such evidence as is before the Tribunal is a matter entrusted to the Tribunal alone: cf Abebe v Commonwealth [1999] HCA 14 at [197], [2004] HCA 32; 197 CLR 510 at 580 per Kirby J; Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 552, 559. The Tribunal (in any event) did "fully" consider the claim. The learned Federal Magistrate concluded that the Tribunal had not committed any jurisdictional error in reaching the conclusion that it did. And no error is exposed in that decision of the Federal Magistrate.

17 The first Ground of Appeal is dismissed.

A FAILURE TO OBSERVE PROCEDURES?

18 The second Ground of Appeal, upon the approach advanced by the Respondent Minister, should also be dismissed.

19 It is not at all clear what the "procedures" were that the Appellant had in mind when drafting this Ground. Potentially they may have been either ss 425 or 426A of the 1958 Act.

20 If it be s 425, this was not a matter expressly raised by the form of application as made to the Federal Magistrates Court or expressly resolved by that Court. The grounds of the application as advanced before the Federal Magistrate were as follows (without alteration):

1. The Tribunal did not adequately consider that I had previously discriminated in Indonesia. 2. The Tribunal did not adequately consider that my business was burned down the Government official. 3. The Tribunal did not adequately consider that the current situation of Indonesia is unstable and it is dangerous for me to go back to Indonesia.

21 The learned Federal Magistrate, however, did conclude that the Tribunal was entitled to proceed pursuant to s 426A of the 1958 Act and, to that extent, implicitly concluded that there had also been compliance with s 425. That conclusion was correct.

22 An invitation was given to the now Appellant to appear before the Tribunal as required by s 425(1). That invitation was communicated by way of a letter dated 3 August 2007 which invited the now Appellant to appear before the Tribunal on 11 September 2007. He responded to the invitation on 21 August 2007 indicating that he needed an interpreter. But he did not appear on the September date.

23 There has been no non-compliance with s 425.

24 If the second Ground of Appeal is intended to refer to s 426A, the form of the application as filed with the Federal Magistrates Court would again tend to indicate that it was not a matter raised for resolution in that Court.

25 Moreover, it is a Ground without substance. Section 426A(1) provides as follows:

(1) If the applicant: (a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear; the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

The authority of the Tribunal, to proceed to make a decision, conferred by s 426A(1) is dependent upon those two jurisdictional facts being satisfied: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [35], [2007] HCA 35; 237 ALR 64 at 73–4 per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. Section 425A(4) provides that where a person is invited to appear before the Tribunal a notice "must contain a statement of the effect of section 426A". Of this provision, in SZCQR v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 724 Moore J observed:

[27] ... Plainly, the requirement in s 425A(4) is to ensure that the notice alerts an applicant to the consequences of not appearing in the face of an invitation to appear, the material consequence being that the Tribunal can make a decision without taking any further action which would result in the applicant appearing before the Tribunal. In my opinion the notice conveys this.

See also: SZICU v Minister for Immigration and Citizenship [2008] FCAFC 1 at [13]–[17], 100 ALD 1 at 4–5 per Tamberlin, Finn and Besanko JJ.

26 In the present appeal, the 3 August 2007 letter stated in relevant part:

... Please note that the Tribunal may make a decision without further notice, if an applicant invited to appear before the Tribunal fails to attend the scheduled hearing.

That is sufficient compliance with s 425A(4).

27 Both of the requirements were satisfied in the present case and the Tribunal was thus permitted to proceed in circumstances where the now Appellant failed to appear.

28 The second Ground of Appeal should also thus be dismissed.

29 The Appeal should be dismissed with costs.

ORDERS

30 The orders of the Court are:

1. The appeal be dismissed.

2. The Appellant to pay the costs of the First Respondent.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated: 19 August 2008

The Appellant:	The Appellant did not appear
Counsel for the First Respondent:	M Allars
Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	19 August 2008
Date of Judgment:	19 August 2008