BZABL v Minister for Immigration &Anor
[2011] FMCA 897
•17 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BZABL v MINISTER FOR IMMIGRATION &ANOR | [2011] FMCA 897 |
| MIGRATION – Review of Refugee Review Tribunal – no jurisdictional error established. |
| Migration Act 1958 (Cth), ss.425A(1), 425A(3), 425A(4), 425(1), 426, 426A, 426A(1), 441A, 441A(4), 441A(4)(a), 441C(4), 452A(3) Migration Regulations 1994, reg.4.35D, 4.35D(b) |
| Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592 SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110 VNAA v Minister for Immigration and Multicultural Affairs (2004) 136 FCR 407 |
| Applicant: | BZABL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 739 of 2011 |
| Judgment of: | Jarrett FM |
| Hearing date: | 17 November 2011 |
| Date of Last Submission: | 17 November 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 17 November 2011 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitor for the Respondents: | Ms Slack |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $2,817.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 739 of 2011
| BZABL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an application filed on 19 August, 2011 the applicant seeks judicial review of a decision of a Refugee Review Tribunal made on 15 July, 2011. His application was not filed within 35 days of the date of the tribunal’s decision and so he seeks an extension of time within which to bring this application. It was one day late. The first respondent’s submissions focus upon the merits of the review application rather than the extension of time application.
The tribunal’s decision challenged in these proceedings affirmed a decision of a delegate of the first respondent dated 12 April, 2011 to refuse to grant a Protection visa to the applicant.
The applicant is a citizen of the People’s Republic of China.
He arrived in Australia on 2 August, 2007 on a subclass 571 (Schools Sector) visa which was valid until 15 March, 2011. On 24 February, 2011 he lodged an application for a Protection visa with the Department of Immigration and Citizenship.
In his visa application the applicant claimed to fear persecution in China on the basis of his religion (Christianity). He claimed that all of his family were Christian and that he had attended Christian meetings since he was very young. He claimed that his parents had been assaulted and arrested by the police and that the police also threatened to put him in gaol when he turned eighteen. To avoid the risk of gaol the applicant left China and came to Australia.
In support of his application, the applicant provided copies of pages from his passport, a number of pages printed from “Google Maps” and English translations of his “Household Register” and his family’s registration cards.
Although the applicant was invited to attend an interview before a delegate of the first respondent to discuss his application and claims for protection, he failed to attend this interview. At the hearing before me, he told me that he did not get the invitation to meet with the delegate because it was sent to his friend who either never received it, or did not pass it on to him.
In a decision dated 12 April, 2011 the delegate refused the application. The delegate found that the applicant’s claims were “vague and unsubstantiated” and was not satisfied on the limited information before him that there was a real chance that the applicant would face persecution if he returned to China. In addition, the delegate found that the applicant’s claims to fear harm were undermined by his delay of over three years in lodging his application after arriving in Australia and his ability to depart China using a passport in his own name.
On 11 May, 2011 the applicant lodged an application for review by a refugee review tribunal. On 31 May, 2011 the tribunal wrote to the applicant inviting him to attend a hearing scheduled on 15 July, 2011.
The invitation sent on 31 May, 2011 complied with the applicable legislative requirements and was addressed correctly to the address nominated by the applicant in his application for review as the address to which he elected correspondence to be sent. The hearing invitation:
a)invited the applicant to appear before it to give evidence as required by s.425(1) of the Act;
b)provided notice of the specified day, time and place of the hearing as required by s.425A(1) of the Act;
c)was given to the applicant by one of the means specified in s.441A of the Act namely, by registered post (s.441A(4));
d)provided a period of time to the applicant exceeding the prescribed period of 14 days notice as required by reg. 4.35D of the Migration Regulations 1994. “Notification” is taken to have been received seven working days after the date of the document, as required by s.441C(4) of the Act. Accordingly, the applicant is taken to have received notification on 9 June, 2011;
e)was dispatched within three working days of the date of the letter in accordance with s.441A(4)(a); and
f)contained a statement about the effect of s.426A of the Act (namely, the options available to the Tribunal if the applicant failed to appear before it) as required by s.425A(4) of the Act.
The applicant was clearly put on notice by the terms of the hearing invitation that the tribunal was unable to make a favourable decision on the basis of the information before it and that if he did not attend the hearing the tribunal might make a decision without further notice to him.
No response to the hearing invitation was received by the tribunal and the applicant failed to appear at the scheduled hearing on 15 July, 2011. The applicant also failed to contact the tribunal to explain his failure to attend the hearing. In those circumstances, the tribunal was specifically empowered by s.426A(1) to proceed to determine the review without taking any further action to enable the applicant to appear before it.
In its reasons for decision dated 15 July, 2011 the tribunal affirmed the delegate’s decision to refuse the applicant’s application for a Protection visa. The tribunal accepted the applicant’s biographic and educational details listed in his Protection visa application. However, the tribunal found that the applicant’s written claims for protection were “very broad” and did not “clearly identify when and how certain critical events relating to his claims took place”.
The tribunal also found that it was unable to “test his claims” concerning he harm that he and his family allegedly faced in China because of their religion. The tribunal observed that it would have liked to have discussed with the applicant the reason for his three and a half year delay in applying for protection after arriving in Australia.
Having considered the applicant’s claims singularly and cumulatively the tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under the Convention.
I accept the first respondent’s submissions that no jurisdictional error is apparent in the tribunal’s approach or findings because the facts advanced by the applicant did not cause it to be satisfied as to the applicable visa criteria. The tribunal was not required to accept the applicant’s claims at face value and the weight to be given to his claims and evidence was a matter for the tribunal to assess as part of its fact-finding function: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 281-282. It will be difficult to achieve the requisite degree of satisfaction if an applicant does not provide sufficient information, such as by not attending a hearing: NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5]. In the absence of a positive finding of satisfaction, a visa application must be rejected: NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208; NAVX v Minister for Immigration & Multicultural & Indigenous Affairs (above) and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.
The applicant filed an application for judicial review in this Court on 19 August, 2011. Despite orders and directions made on 22 September, 2011 permitting the applicant to file and serve an amended application or any affidavit evidence by 20 October, 2011 nothing has been filed and served, although the applicant appeared at the hearing before me today.
The application for judicial review contains three purported grounds of review in the following terms:
1. The Second Respondent’s decision is affected by a jurisdictional error.
2. The Second Respondent breached its obligation pursuant to Migration Act 1958.
3. The Second Respondent failed to give the prescribed period of notice to the applicant.
Grounds one and two broadly allege that there was a “jurisdictional error” and that the tribunal breached its obligations under the Act.
In the absence of particulars to make these grounds meaningful I accept the first respondent’s submission that, they are without merit and cannot succeed. The applicant was unable to articulate any particular complaint about the tribunal’s reasons or process that would lead to a conclusion that it had fallen into a jurisdictional error. I can detect none in the reasoning of the tribunal.
I further accept the first respondent’s submissions that to the extent that these grounds are intended to be a complaint about the tribunal making a decision after he failed to attend the scheduled hearing, it cannot succeed. The tribunal’s power to proceed under s.426A(1) is available, even if circumstances were shown which demonstrate a failure of procedural fairness: VNAA v Minister for Immigration and Multicultural Affairs (2004) 136 FCR 407 at [14]-[15]; SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110 at [17], Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39].
Although the power conferred by s.426A must be exercised reasonably and cannot be exercised capriciously, the election to make a decision on the review is not, by itself, the expression of an unreasonable exercise of the power: NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592 at [20]-[21]. Nor is there any obligation on the tribunal to make any inquiry as to the failure on the part of an applicant to appear or “to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant”: Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73.
Ground three pleads that the tribunal failed to give the “prescribed period of notice” to the applicant. This ground appears to allege that the tribunal failed to comply with its obligations under the Act when inviting the applicant to attend the hearing before it scheduled on
15 July 2011. I accept the first respondent’s submissions that this claim is without merit and cannot succeed. The period of notice to be given to an applicant when he or she is invited to attend a hearing before the tribunal must be at least the prescribed period or, if no period is prescribed, a reasonable period: s.425A(3) of the Act. Relevantly, reg. 4.35D provides that:
For subsection 425A (3) of the Act, the prescribed period:
(a) if the applicant is a detainee --starts when the applicant receives notice of the invitation to appear before the tribunal and ends at the end of 7 days after the day on which the notice is received; or
(b) in any other case --starts when the applicant receives notice of the invitation to appear before the tribunal and ends at the end of 14 days after the day on which the notice is received.
As the applicant was not in immigration detention at the time that the hearing invitation was sent the prescribed period of notice for the purposes of s.452A(3) was 14 days: reg. 4.35D(b). “Notification” is taken to have been received seven working days after the date of the document: s.441C(4) of the Act. Accordingly, the applicant is taken to have received notification on 9 June, 2011. As the hearing was scheduled on 15 July, 2011, 36 days after 9 June 2011, the tribunal complied with its obligations under s.425A(3) by giving the applicant at least 14 days notice of the hearing. Accordingly, ground three is not made out.
In my view the application for judicial review does not establish any jurisdictional error in the decision of the tribunal. Accordingly, the application for an extension of time is dismissed. To the extent that no extension is necessary, the application for review is dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 17 November 2011
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