Case: SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195
Outcome: followed
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 Allsop J referred to the reasons a Tribunal had given in that case that the appellant had not provided the level of detail necessary satisfactorily to establish the relevant facts in his case. The Tribunal there noted that questions remained unanswered as to how and when the homosexuality which he there alleged had come about, and become known and the like. At the end the Tribunal concluded it was not satisfied that the appellant's claims were true. His Honour said ([2005] FCA 1195 at [29]): 'The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than that) the evaluative conclusion founded on the perceived inadequacy of the information in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.' Accordingly, his Honour found that in that case there was no failure to comply with s 424A. Although my mind has wavered on the point, I am of opinion that the better view is that the Tribunal's use of the failure of the appellant to give evidence is to be viewed in a similar fashion. At the end of the day the Tribunal concluded that on the very limited information available it was not satisfied that the appellant would be at risk of persecution were she to return to China or that there was any real chance that she would be persecuted if she did. Notwithstanding my doubts, I find that the Tribunal was not obliged to give a notice under s 424A(1) and that I should dismiss this ground of appeal. Last, it is said that the Tribunal failed to exercise a discretion under s 426A(1) in accordance with the Act and thereby committed a jurisdictional error. The appellant argues that the Tribunal ought to have had regard to the fact that she had indicated she wished to attend a hearing but, because she did not arrive, it ought to have taken the simple step of telephoning her on the telephone number which the Tribunal had to ascertain whether or not there was some reason for her non-attendance. I am asked to infer from material in the appellant's affidavit which was unchallenged before his Honour that had she been telephoned on the day of the hearing she would have attended the hearing and/or made arrangements to seek an adjournment with the Tribunal. The appellant did not state that explicitly in her affidavit of 16 March 2006. I infer that she had considerable concerns about her immigration status and continued to liaise and speak with people at the Shine Business Consultant Centre at all relevant times. While I might be prepared to infer in her favour that she would in fact have communicated to the Tribunal that she wanted a hearing and sought to arrange a convenient time either on the day fixed for the hearing or at some other time, the first question is what was the scope of the discretionary power in s 426A? The Minister submits that considerations which the Tribunal was bound to take into account are those specified in s 426A(1)(a) and (b), namely, that a proper invitation had been given to the appellant to appear at a hearing before the Tribunal under s 425 and the appellant had not appeared before the Tribunal on the day on which, or at the time and place at which, she was scheduled to appear. The Minister argues that s 426A(2) is, in effect, facultative in allowing the Tribunal to re-schedule the time of an appellant's appearance to enable him or her to appear at a later or an alternate time but that subs (2) does not, in effect, create some consideration which the Tribunal is bound to take into account in exercising its discretion.