Case: SZHSQ v Minister for Immigration [2006] FMCA 538
Outcome: referred to
is an appeal from a decision of the Federal Magistrates Court, SZHSQ v Minister for Immigration [2006] FMCA 538. In essence, three principal bases of error were argued before me. I am of opinion that although the reasons of the Tribunal could have been better expressed, the Chief Federal Magistrate made no error in his conclusion that the Tribunal had made no finding that the appellant was a practitioner of Falun Gong or that she had practised that faith in a particular way. He said that there was no finding that upon her return to China she would practice in a particular way and that it was apparent that the Tribunal was unable to make those findings because of her non attendance before the it and the lack of information in support of her claim (see [2006] FMCA 538 at [16] ). From time to time decisions of the Tribunal refer to questions which it might have been able to ask of persons had they attended hearings. The courts have held that that speculation does not amount to a jurisdictional error or a failure to comply with s 424A(1). I am mindful that in this case the requirements of the Act for according natural justice are not exhaustive because what came later to be enacted in s 422B was not in force at the time the Tribunal made its decision. Thus the common law requirements of procedural fairness to the extent that they are consistent with the Act had to be observed by the Tribunal in addition to those mandated in the statute. I am of opinion that the Tribunal did take into account the fact that the appellant had not given evidence in support of her claims, and the fact that she did not attend the hearing, as information to why it would find against her. The Chief Federal Magistrate thought this ground in totality was misconceived (see [2006] FMCA 538 at [19] ). In one sense in every case where an applicant for review does not attend a hearing part of the material before the Tribunal is the failure to attend and to give evidence in support of the claim. But here the Tribunal gave as a reason that the appellant had, in effect, not only given little support to her claims, she had not given evidence to support them. At no time did the Tribunal give notice to the appellant that her failure to give evidence in support of her claims would be a reason for rejecting them. Rather it had sent a notice saying that it was not satisfied on the material before it that it could make a decision in her favour and invited her to a hearing, as it was required under the Act to do before it could proceed along that course. To employ the appellant's failure to give evidence in support of her claims as a part of the reason why her claim should not be accepted seems to me to be using that information against her in a way that she was not advised of beforehand. Albeit she was on notice that the Tribunal was not going to make a decision in her favour, it was not because she had not given evidence. It was because the Tribunal was not satisfied on the material that she had presented to it. The distinction is fine and difficult and I am not entirely sure that it is satisfactory given that the Act envisages that the very purpose of inviting someone to a hearing is to enable them to persuade by what they can say and provide at the hearing, the Tribunal against upholding the decision to refuse a visa.