AFR15 v Minister for Immigration

[2015] FCCA 1016

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFR15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1016

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – procedural fairness – whether the applicant had notice of the Tribunal hearing – no jurisdictional error.

Legislation: 

Migration Act 1958 ss.36(2)(a), 36(2)(aa), 425A, 426A, 476

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287

Applicant: AFR15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent REFUGEE REVIEW TRIBUNAL

File Number: SYG 746 of 2015

Judgment of: Judge Street

Hearing date: 21 April 2015

Date of Last Submission: 21 April 2015

Delivered at: Sydney

Delivered on: 21 April 2015

REPRESENTATION

The Applicant appeared in Person

Solicitors for the Respondent: Ms S. Lloyd
Minter Ellison

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 746 of 2015

AFR15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 26 February 2015 affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The application identifies the following ground:

   I did not receive any letter from the tribunal so I did not know that I have an interview with the tribunal. The tribunal should contact me more time. The tribunal would not accept that I am true refugee in the first place and ignore the weight of the evidence.

3. The matter came before the Court on 16 April 2015 and at that time the applicant identified that he had an alleged migration agent who he asserted he had informed of a changed address and that he had not received the notification of hearing.  The Court stood the matter over for final hearing today.  It is clear from the Court book, that was marked exhibit A, that the applicant in the application for review, specified an approved address for the receipt of correspondence, being his own address of [address X].

4. In the same application the applicant identified his email and his telephone number.  There is no suggestion by the applicant that his telephone number changed.  The applicant gave oral evidence in which he identified that his current address was [address Y].  The applicant did not give any cogent  evidence that explained when that change of address occurred.

5. The applicant sought to hand up a document in in Mandarin dated 20 April 2015 that purported to be a note taken from the applicant’s mobile phone and it identified an address of [address Z].  The applicant asserted that the Tribunal was informed that that was his changed address in November 2014 and that he caused someone to send that address to the Tribunal.

6. There is no evidence to support when the applicant moved from [address X].  The Court drew attention to the applicant’s unsatisfactory nature explanation of his change of address whilst in the witness box so as to permit the applicant an opportunity to provide clarification or further explanation.  The applicant did not give any satisfactory explanation in relation to the changed address or when it occurred.  On the material before the Court I am not satisfied that the applicant, in fact, changed his address prior to the date of the sending of the letter to the applicant on 22 January 2015.

7. I do not accept the applicant’s evidence that he did not receive that letter.  It is clear the applicant received the mobile notification sent by the Tribunal to the applicant’s mobile number on 18 February 2015 and on 24 February 2015.  The applicant suggested that he thought these were messages from the telephone company.  I do not accept the applicant’s evidence in that regard.  I am satisfied the applicant was notified of the hearing before the Tribunal and deliberately chose not to attend.

8. In making these finding I take into account the applicant’s evidence in which he initially asserted that the signature on the form 866B for his protection visa was not his signature and he initially asserted that the signature on the form 866C was not his signature.  The applicant then recanted from that evidence in relation to form 866B.  The applicant was a wholly unsatisfactory witness and was evasive in responding to questions from the bench and from Ms Lloyd for the first respondent.

9. This is not a case where the applicant had a migration agent and, contrary to what was advanced on the first return date, there was, in fact, no issue of a representative acting in a manner that might constitute a fraud. The Court was misled by the applicant in relation to the assertion of the existence of a migration agent. 

10. I find that the Tribunal sent the applicant the letter dated 22 January 2015 in accordance with the statutory regime to the correct notified address identified on the application for review.  I am satisfied from the evidence tendered that that letter was posted in accordance with the information disclosed on the postal dispatch register annexed to the affidavit of Ms Lloyd.  I am satisfied that the applicant also received the mobile notifications of the hearing date and decided not to attend.

11. I am also satisfied that the applicant took no steps to notify the Tribunal of any change of address.  I do not accept the applicant’s assertion of the sending of a mobile text message through an unidentified person as asserted in exhibit C.  There is no substance in the alleged jurisdictional error in the application as it is clear the Tribunal sent the notification of the hearing to the correct address.

12. I accept the first respondent’s submissions that the letter complied with the procedural requirements of s.425A of the Act and I accept the respondent’s submissions that the Tribunal was entitled to proceed to make a decision in accordance with s.426A. I accept that the Tribunal is not required to accept the applicant’s claims at face value and the weight to be given to the applicant’s claims is a matter for the Tribunal to assess as part of the fact-finding function; see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [281]-[282].

13. I also accept the respondent’s submissions that the inevitable consequence of the applicant’s failure to appear at the hearing before the Tribunal was that the Tribunal could not reach the requisite state of satisfaction; see NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5].

14. I do not accept the assertion in that document as to the applicant’s allegation of a failure by others to correct the address or that the address was, in fact, one that was wrong at the time of the sending of the invitation to hearing letter.  I have also taken into account the document provided by the applicant that was marked exhibit D.

15. The Tribunal was entitled to decide to proceed with the review in the circumstances in which the applicant had failed to respond to the invitation to appear and had failed to respond to the SMS messages.  Relevantly, the Tribunal said:

    11. On 22 January 2015 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 25 February 2015. The applicant was advised that if he did not attend the hearing and a postponement was not granted the Tribunal may make a decision on his case without further notice. No response was received. The applicant was sent SMS Hearing Reminders to the mobile phone number he had provided to the Department on 18 and 24 February 2015. The applicant did not appear before the Tribunal on the day and at the time and place he was scheduled to appear. In these circumstances and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

16. I am satisfied that it was open to the Tribunal to decide to continue to proceed with the review and not to adjourn the application in the circumstances of the failure of the applicant to attend.  The applicant arrived in Australia on 10 October 2013 on a visitor visa and applied for protection on 6 January 2014 that was refused on 3 June 2014.  The Tribunal properly identified the applicant’s claims and evidence.  It is not a case where there is any other alleged error by the Tribunal and it was open to the Tribunal to come to the findings that the applicant did not have a well-founded fear of persecution if he returns to China now or in the reasonably foreseeable future for any convention-based reason.

17. Further, it was open to the Tribunal not to be satisfied that the applicant’s claims were credible, given the visa application that he obtained arriving in Australia and the matters identified by the Tribunal.  It was open to the Tribunal to come to the finding that it was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China there is a real risk that he will suffer significant harm.

18. The finding for the applicant was not a person that Australia owed protection obligations to and was not a person who satisfied the criteria under s.36(2)(a) or 36(2)(aa) was clearly open on the material before the Tribunal. The application discloses no jurisdictional error. The application is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  22 April 2015