AID15 v Minister for Immigration

[2015] FCCA 1473

FEDERAL CIRCUIT COURT OF AUSTRALIA

AID15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1473

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – procedural fairness – no jurisdictional error.

Legislation: 

Migration Act 1958, ss.36(2)(a), 36(2)(aa), 412, 476, 477, 494C
Migration Regulation 1994 reg.4.31

Applicant: AID15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 870 of 2015

Judgment of: Judge Street

Hearing date: 29 May 2015

Date of Last Submission: 29 May 2015

Delivered at: Sydney

Delivered on: 29 May 2015

REPRESENTATION

There was no appearance by the Applicant

Solicitors for the Respondent: Ms S. Given
Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5800.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 870 of 2015

AID15

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 11 March 2015, finding that the Tribunal did not have jurisdiction in the matter. 

2. The applicant applied for a Protection (class XA) visa which was refused by the delegate on 18 August 2014.  Relevantly, the delegate found (CB 63-68):

   Finding on credibility

   Given the limited information before me, in conjunction with the above credibility concerns, I find that the applicant’s claims are not credible. Consequently, I dismiss in their entirety the credibility of the applicant’s claims in relation to facing persecution in the PRC.

   I therefore make the following findings of fact in relation to the applicant’s claims for protection:

   - I do not accept that the applicant is Catholic;

   - I do not accept that the applicant has faced arrest, torture, harassment or any other form of harm because she practices the Catholic faith in an underground or house Church in the PRC;

   - I do not accept that the applicant is of interest to the PRC authorities for any of the reasons claimed; and

   - I am not satisfied there is any ground, either expressed or squarely raised on the evidence, that has satisfied me there is any basis for finding the applicant fears harm for any reason in the PRC.

   …

   2. IS THE HARM FEARED FOR A CONVENTION REASON?

   ….

   Finding

   I am not satisfied that any Refugees Convention ground is the essential and significant reason for the harm feared as required by subsection 91R(1)(a) of the Migration Act.

   4. IS THE FEAR WELL-FOUNDED

   ….

   Finding on well-foundedness

   I am not satisfied the applicant has a real chance of being persecuted for a Refugees Convention reason. I am therefore not satisfied the applicant’s fear is well founded.

   5. FINDING UNDER THE REFUGEES CONVENTION

   I am not satisfied that Australia has protection obligations to the applicant, Ms [AID15], under the 1951 Refugees Convention as amended by the 1967 Refugees Protocol. As a result, the applicant does not meet the criteria for the grant of a Protection visa under subsection 36(2)(a) of the Migration Act and subclause 866.221(2) of Schedule 2 to the Migration Regulations.

   …

   4. FINDING UNDER THE COMPLEMENTARY PROTECTION PROVISIONS IN THE MIGRATION ACT

   I am not satisfied that Australia has protection obligations to the applicant, Ms [AID15], under subsection 36(2)(aa) of the Migration Act. As a result, the applicant does not meet the criteria for the grant of a Protection visa under subsection 36(2)(aa) of the Migration Act and subclause 866.221(4) of Schedule 2 to the Migration Regulations.

   …

3. The application for review was lodged online on 2 February 2015. Pursuant to s.412(1)(b) of the Act and reg.4.31 of the Migration Regulation 1994, an application for review of the delegate’s decision had to be made within 28 days after the day after the applicant was notified of the decision in accordance with the statutory requirements.  The Tribunal noted that the applicant was notified of the decision by a letter dated 18 August 2014, dispatched by post to a registered migration agent in accordance with the address nominated for correspondence. 

4. In response to the application for review, the Tribunal wrote to the applicant on 18 February 2015 inviting comments in respect of the issue of validity of the application for review. The Tribunal found that the applicant was notified of the decision in accordance with the statutory requirements. I’m satisfied that finding was open and correct. The Tribunal found that the applicant was taken to have been notified of the decision in accordance with s.494C, and therefore the prescribed period within which the review application could be made ended on 24 September 2014. Those findings were correct.

5. On 23 January 2015, the applicant wrote to the Tribunal, making assertions in relation to an alleged attempt to provide information attaching a copy of her biodata page, which the Tribunal correctly found did not contain any evidence that the application for review had been submitted to the Tribunal.  The Tribunal wrote to the applicant on 27 January 2015 requesting the applicant provide further information in respect of the likely dispositive issue. The Tribunal wrote to the applicant on 18 February 2015 concerning the validity of the application and identified the potential adverse dispositive issue in respect of a want of jurisdiction on the basis that the application for review was out of time.  The applicant was invited to provide a response by 4 March 2015.  No response was received by the Tribunal within that timeframe. 

6. A response was received on 6 March 2015 repeating, in substance, the early assertions about providing information online which the Tribunal found did not amount to any lodgement of the application for review.  It was in those circumstances the Tribunal concluded as follows:

   11. The Tribunal has no evidence before it that the applicant lodged an application for review, either online, or by any other method, by the last date for lodgement, namely 24 September 2014.The Tribunal has no discretion in this matter. As the application for review was not received by the Tribunal until 2 February 2015, it follows that the application for review was not made in accordance with the relevant legislation, and the Tribunal has no jurisdiction in this matter.

7. The matter was listed for hearing today at 2:15pm.  It is now past a 3:45pm and the applicant has failed to attend.  When the matter was fixed for hearing, a timetable was fixed.  The applicant was informed that the matter would proceed in the applicant’s absence if the applicant failed to attend.  I have also had tendered correspondence from the first respondent enclosing their submissions and reminding the applicant of the hearing date and that the matter would be dealt with in the absence of the applicant.  The matter has been called outside the Court and the applicant has failed to appear.  I am satisfied the applicant was well aware of the hearing date and that it is appropriate to determine the matter on its merits in the absence of the applicant. 

8. The application identified the following grounds:

   I. RRT HAVE DESCRIMINATIO ON ME, FAILED TO GIVE ME CHANCE FOR A HEARING.

   2. RRT IS UNFAIR TO ME, THEY BREACHED F AINESS PROCEDURE AND REFUSED BASED ON THEIR OWN JUDGEMENT.

9. There is no substance in relation to the grounds identified.  It is clear from the decision of the Tribunal in the Court book that the applicant was notified of the issue likely to be dispositive in respect of a want of jurisdiction.  In those circumstances, there is no duty on the Tribunal to conduct a hearing.  There is no substance in relation to ground 1.  In relation to ground 2, it is clear that the Tribunal provided the applicant with the opportunity to address the dispositive issue, and that the applicant was accorded procedural fairness by the Tribunal.  There is no substance in relation to ground 2.  The application is dismissed. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  3 June 2015