SZLBR v Minister for Immigration & Citizenship [2008] FCAFC 85 (27 May 2008)

Last Updated: 27 May 2008

FEDERAL COURT OF AUSTRALIA

SZLBR v Minister for Immigration & Citizenship [2008] FCAFC 85

SZLBR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 311 OF 2008

STONE, JACOBSON AND EDMONDS JJ
27 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 311 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLBR Appellant

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

JUDGES:	STONE, JACOBSON AND EDMONDS JJ
DATE OF ORDER:	27 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant bear 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 311 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLBR Appellant

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

JUDGES:	STONE, JACOBSON AND EDMONDS JJ
DATE:	27 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant is a citizen of the People’s Republic of China. He arrived in Australia on 28 December 2006 and lodged an application for a protection visa on 8 January 2007. A delegate of the Minister refused to grant the visa and the appellant sought review of that decision. The Refugee Review Tribunal affirmed the delegate’s decision. The appellant then sought judicial review of the Tribunal’s decision in the Federal Magistrates Court where his application was dismissed; [2008] FMCA 154.

2 The appellant now appeals from her Honour’s decision. His grounds of appeal are that the Tribunal failed to consider the current conditions in China and that it made a jurisdictional error in that it had not complied with "its obligation to put adverse information relied upon as part of the reason for the decision to the [appellant] for comment". This latter ground is clearly a reference to the obligations imposed by s 424A of the Migration Act 1958 (Cth).

3 At the hearing of the appeal the appellant appeared for himself with the assistance of an interpreter. His only submission was to ask the Court to help him. He did not make any submission either orally or in writing in support of the claims made in his notice of appeal. Counsel for the respondent, Mr Lloyd, had provided comprehensive written submissions and, in the circumstances, it was not necessary to ask him to make further, oral, submissions.

4 No particulars were given to support the appellant’s claim that the Tribunal failed to consider conditions in China. In the absence of any particulars and any submissions from the appellant, we see no reason to disagree with the views expressed by the learned Federal Magistrate in dismissing this claim; see in particular [21]-[28] of her Honour’s reasons.

5 As Mr Lloyd observed in his written submissions, the only real issue in this appeal arises from the use of an incorrect postcode on an invitation to a hearing issued pursuant to s 425 of the Migration Act. The issue is the significance of this error for the validity of the Tribunal’s decision and/or the availability of any relief.

6 The Tribunal’s invitation to the appellant to attend the hearing was contained in a letter dated 16 April 2007 sent to the correct number and street address in Surry Hills but stating the postcode as 2000 whereas the correct postcode is 2010. Notwithstanding this error the letter was received by the appellant who responded that he would attend the hearing. The hearing was held on 15 May 2007 and was attended by the appellant.

7 It appears that in addition to the invitation to the hearing, on 17 April 2007 the Tribunal sent two letters to the appellant. One letter, sent pursuant to s 424 of the Migration Act, requested the appellant to provide additional information by 11 May 2007. The other letter, which was apparently sent pursuant to s 424A of the Migration Act and invited the appellant to comment on the information set out in it, is discussed further below. Both these letters used the same erroneous postcode as the letter of 16 April referred to in [6] above. Both had notations indicating that they had been sent by registered post on 17 April 2007.

8 The appeal book contains copies of two printed forms each of which is headed "No Reply - Check List". One relates to the s 424 letter and one to the s 424A letter. A notation on the printed forms states that the check list should be completed by the case officer only after the response deadline has passed with no response. Handwritten notations on the forms indicate that they were completed on 14 May 2007 and that no response had been received in either case. A further handwritten notation on each form stated that an incorrect postcode had been used but that Australia Post had confirmed that they had been delivered to the Darlinghurst "Post Shop" on 18 April and had been collected from there on 1 May 2007. The appeal book contained a typed case note dated 14 May 2007 confirming this.

9 The s 424A letter stated that the Tribunal had information that, subject to any comments the appellant might make, would be the reason or part of the reason, for deciding that he was not entitled to a protection visa. The information set out in the letter referred to the fact that the appellant had said that he left China legally and did not have any difficulty in obtaining a travel document. This suggested, the Tribunal said, that he was not of adverse interest to the Chinese authorities as they did not attempt to prevent him leaving the country. The letter also referred, inter alia, to the fact that the appellant had not claimed to have suffered from adverse attention in China between 2002 and 2006 which suggested that he was no longer of interest to the Chinese authorities.

10 In addition to the above, the letter also referred to independent country information that suggested that if Falun Gong practitioners sought asylum they would obtain proof (presumably of their commitment to Falun Gong) from local Falun Gong centres and societies. The Tribunal also noted that without such proof "it is difficult to accept that you are a Falun Gong practitioner and your credibility is in issue".

11 Curiously, neither the Tribunal nor the Federal Magistrate mentioned the s 424 letter or the s 424A letter in their reasons for decision. However, while not referring to the letter, the Federal Magistrate, in rejecting the claim based on s 424A, stated at [29]-[30]:

The Applicant was unable to identify any information that he alleged enlivened the obligations of s.424A of the Act. None is apparent on the face of the Tribunal record. As stated above in these reasons, the Tribunal’s adverse findings were based solely on the Applicant’s evidence, being information given by the Applicant to the Tribunal for the purposes of his review. In the circumstances, s.424A(3)(b) excludes such information from the obligations of s 424A(1) of the Act.

12 We agree with her Honour. In its findings and reasons the Tribunal did not refer to the issues raised in the s 424A letter but based its conclusion that the appellant was not a Falun Gong practitioner on his demonstrable ignorance of the practices and tenets of Falun Gong and his inability to answer basic questions about it.

13 In relation to the significance of the Tribunal using the wrong postcode we refer to our reasons in SZKGF v Minister for Immigration and Citizenship [2007] FCAFC 84 which we heard on the same day as this appeal. In its letters to the appellant in SZKGF the Tribunal also used an incorrect postcode.

14 An important element of our decision to dismiss the appeal in SZKGF was the fact that, notwithstanding the postcode error, the appellant there had in fact received the Tribunal’s letters and had responded to them. There was no practical injustice. We are satisfied that this is also the case here. The appellant’s attendance at the hearing indicates that he received the invitation sent on 16 April 2007. The evidence referred to in [8] above indicates that the appellant also received the two letters sent on 17 April 2007. The appellant has not sought to contend otherwise.

15 Even if the conclusion expressed in [14] is not correct, we rely on the views we expressed in SZKGF where we said at [11]-[12]:

In any event there are cogent reasons for concluding that the postcode is not part of the address and therefore the use of the incorrect postcode did not result in non-compliance with s 424A(2)(a). On this point see the views expressed by Emmett FM in SZLBR v Minister for Immigration and Citizenship [2008] FMCA 154 at [39]- [40]. Even if the postcode is properly to be regarded as part of the address, the question would arise as to whether the use of the incorrect postcode constituted a jurisdictional error. In Tasker v Fullwood [1978] 1 NSW LR 20 at 24, the NSW Court of Appeal said that in such circumstances it is relevant to consider the extent of the failure to observe the statutory requirement. Moreover in Victoria v Commonwealth [1975] HCA 39; (1975) 134 CLR 81 at 179Stephen J pointed to the need to examine the extent of non-compliance in the particular case "to determine whether what has in fact occurred nevertheless gives effect to the general object of the statute". Relying on these authorities, Mr Lloyd advanced persuasive arguments that use of the incorrect postcode would not result in jurisdictional error however it is not necessary to decide that issue and, in the absence of a contradictor, we do not do so.

16 In SZKGF we also stated that, even if the use of the incorrect postcode did amount to jurisdictional error, in the absence of any practical injustice we would, in exercise of our discretion, decline to grant relief. The views we expressed in SZKGF at [14]-[15] concerning the circumstances that may attract an exercise of discretion adverse to an applicant are equally applicable here.

17 For the above reasons the appeal must be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Stone, Jacobson and Edmonds.

Associate:

Dated: 27 May 2008

The Appellant appeared in person.
Counsel for the Respondents:	Mr S Lloyd
Solicitor for the Respondents:	DLA Phillips Fox

Date of Hearing:	26 May 2008
Date of Judgment:	27 May 2008