SZJFV v Minister for Immigration and Citizenship [2008] FCA 163 (27 February 2008)

Last Updated: 1 April 2008

FEDERAL COURT OF AUSTRALIA

SZJFV v Minister for Immigration and Citizenship [2008] FCA 163

SZJFV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2137 OF 2007

KENNY J
27 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2137 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	KENNY J
DATE OF ORDER:	27 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal fixed in the sum of $2,000.00.

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 2137 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	KENNY J
DATE:	27 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal against a judgment of the Federal Magistrates Court of 9 October 2007, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).

2 The appellant is a citizen of Indonesia, who arrived in Australia on 16 January 2006. On 10 February 2006 she lodged an application for a protection visa. A delegate of the first respondent refused her application for a protection visa on 13 March 2006. On 12 April 2006 the appellant applied to the Tribunal for a review of that decision.

THE TRIBUNAL’S DECISION

3 In her application for a protection visa, the appellant claimed to have a well-founded fear of persecution in Indonesia based on her Chinese ethnicity. The appellant made general claims of human rights violations, discrimination, and sexual harassment. More specifically, the appellant claimed that her business was burnt and looted by local Indonesians many times. She referred to riots in May 1998 and in 2004. She said that she feared she would be killed if she returned to Indonesia.

4 On 1 May 2006 the Tribunal wrote to the appellant at her postal address inviting her to attend a hearing on 27 June 2006. The letter was directed to the postal address specified in her review application. The appellant did not reply to the hearing invitation. On 21 June 2006 the Tribunal posted another copy of the invitation to the appellant’s residential address, as specified on her review application. There was no response and the appellant failed to appear at the scheduled hearing.

5 As the appellant failed to appear, the Tribunal decided to make a decision without any further action under s 426A of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal found that it lacked sufficient detail to be able to be satisfied as to the veracity of the appellant’s claims. The Tribunal sent a letter to her notifying her of its decision on 18 July 2006.

THE FEDERAL MAGISTRATE’S DECISION

6 On 18 August 2006 the appellant sought judicial review in the Federal Magistrates Court. Before the Federal Magistrate the appellant initially claimed that the Tribunal failed to observe prescribed procedures and failed to consider that she faced a risk of danger if she returned to Indonesia. In her amended application the appellant restated her claims of persecution.

7 On 9 October 2007 a Federal Magistrate dismissed the application for review. His Honour took the appellant’s application to allege that there had been non-compliance with the Act but considered that the Tribunal properly invoked s 426A of the Act, and complied with ss 425, 425A, and 441A of the Act in relation to the invitation to attend the hearing. His Honour noted that there was no s 424A obligation enlivened in this matter. His Honour found that the second ground sought an impermissible merits review.

8 The Federal Magistrate found no jurisdictional error and dismissed the appeal.

GROUNDS OF APPEAL

9 In the notice of appeal filed on 29 October 2007 in this Court, the appellant restates that certain unspecified procedures prescribed by the Act and the Migration Regulations 1984 (Cth) (‘the Regulations’) were not followed. The notice also asserts that there was no evidence to support the Tribunal’s decision. The third ground re-asserts the merits of the appellant’s claims.

10 The appellant did not appear at the hearing today. It would appear that a letter advising her of the hearing was sent by the Court to her residential address on 4 December 2007. The first respondent has also filed an affidavit today from which it appears that notice of the hearing, together with the first respondent’s submissions, were served upon the appellant both at her address for service and her residential address on 19 February 2008. (I interpolate that it is unclear from the appellant’s notice of appeal whether or not she intended to provide an address for service in addition to a residential address.) In the circumstances, it appears that the appellant would have received adequate notice of the hearing today. She has not sought any postponement of the hearing and nor has she advised the Court that she would have any difficulty in attending the hearing today. Accordingly, pursuant to O 52 r 38A(1)(d) of the Federal Court Rules, I proceeded with the hearing in the appellant’s absence.

11 The first respondent filed written submissions prior to the hearing today and, relying on those submissions, pressed for an order dismissing the appeal.

CONSIDERATION

12 In relation to the first ground, there is no basis for the proposition that the Tribunal failed to abide by the procedures proscribed by the Act.

13 The Federal Magistrate specifically considered ss 424A, 425 and 425A, and there would appear to be no other provisions requiring particular attention in the circumstances of the case. Section 424A requires the Tribunal to raise with the appellant in writing any information that would provide the reason or part of the reason for affirming the decision under review. The Tribunal was of the opinion, however, that the appellant had not provided sufficient detail to substantiate her claims. This lack of evidence is not ‘information’ for the purposes of s 424A of the Act. Accordingly, the Federal Magistrate did not err in applying SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18].

14 Section 425 of the Act requires the Tribunal to invite the appellant to a hearing to give evidence and present arguments. The Tribunal duly did so by letter dated 1 May 2006, addressed to the address for correspondence specified in the appellant’s application for Tribunal review. After no reply was received by the Tribunal in response to the original invitation, the invitation letter was re-sent on 21 June 2006 to the appellant’s residential address. The Tribunal’s letters advised the appellant that if she did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on her case without further notice.

15 Section 425A of the Act proscribes requirements for an invitation to a hearing sent by the Tribunal. The Tribunal’s invitation complied with these requirements. In accordance with subs 425A(1), the hearing invitation clearly specified the date, time and place of the scheduled hearing. A boxed note explained that the Tribunal could proceed to make a decision ‘without further notice’, as required by subs 425A(4). The invitation was addressed to the appellant, in compliance with subs 425A(2) and para 441A(4)(c)(i) and (ii). The relevant required period of notice for the hearing was 14 days after the day on which the notice was received: see subs 425A(3) and r 4.35D(b). The period specified in the letter was almost two months, giving the appellant more than the requisite notice of the hearing and sufficient time to prepare for it.

16 Accordingly, there was no breach of ss 425 or 425A of the Act; and the first ground of appeal fails.

17 I also reject the second ground advanced in the notice of appeal. The Tribunal arrived at its decision on the basis that the appellant gave little detail in support of her claims. She did not clarify or augment her claims at the hearing, because she did not attend. The lack of informative detail had the result that the Tribunal could not be satisfied that the appellant has a well-founded fear of persecution.

18 The third ground would invite the Court to review the merits of the Tribunal’s decision. Neither this Court on appeal nor the Federal Magistrates Court as the first instance judicial review court can engage in re-examination of the merits of the Tribunal’s decision. For this reason, this ground too must fail.

19 For the reasons stated, I would dismiss the appeal, with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:

Dated: 27 February 2008

The appellant did not appear
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	27 February 2008
Date of Judgment:	27 February 2008