CJW15 v Minister for Immigration
[2017] FCCA 950
•26 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJW15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 950 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.425, 426A, 430A, 441A, 441C, |
| Cases cited: AZAFB v Minister for Immigration and Border Protection (2015) 244 FCR 144; [2015] FCA 1383 |
| Applicant: | CJW15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3093 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 26 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 26 April 2017 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3093 of 2015
| CJW15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 12 October 2015. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, who claimed to be a citizen of China, arrived in Australia in July 2014 and applied for a protection visa. In a written statement accompanying her protection visa application she claimed to fear harm on the basis of her family’s and her own involvement in Christianity.
Relevantly, in her application the Applicant gave a residential address and postal address which is sufficiently described for present purposes as a unit in Pitt Street, Haymarket. She did not appoint an authorised recipient.
However on 2 December 2014 the Department received a notice of change of address form for the Applicant in which she provided an address in Burwood as both her residential address and her address for correspondence. The unit and street number in this address were described in two ways, but both amount to the same thing (unit 102, street number 7). What appears to be the envelope in which the notice of change of address was sent to the Department bears this address as the address for the sender.
By letter dated 20 February 2015 (addressed to the Applicant at this Burwood address) the Applicant was invited to attend an interview with the Department on 13 March 2015. The letter informed her of the importance of attending an interview and of the fact that if she did not attend, the application would be decided on the information already provided. The Applicant did not attend the scheduled interview.
On 14 March this letter was returned to the Department unclaimed.
In the meantime, on 13 March 2015 the delegate had refused to grant the Applicant a protection visa. A result of the Applicant’s failure to attend the interview the delegate was not able to test her protection claims and was not satisfied on the information before her that the Applicant met any of the criteria for a protection visa.
The departmental decision notification was sent to the Applicant by letter dated 13 March 2015 addressed to the Burwood address she had provided. It contained enclosures in relation to her review rights. The copy of the letter in the Courtbook bears a registered post sticker which ends in the number 16. A letter bearing the same registered post number was returned to the Department, marked unclaimed, on 9 April 2015.
Despite this, it is clear that the Applicant became aware of the delegate’s decision because on 31 March 2015, within the time provided for in s.477(1) of the Migration Act 1958 (Cth) (the Act), she lodged an application for review with the then Refugee Review Tribunal.
In Part C of the review application form the Applicant requested that correspondence be sent to her. She provided a postal address which matched the earlier Burwood address provided to the Department in all respects except one. The unit number was described as 102A rather than 102. In the contact details part of the form the Applicant again provided the unit 102A address and also a mobile telephone number. She did not, in any part of the form, provide any other contact details.
The Tribunal acknowledged receipt of the application by letter of 31 March 2015 sent to the unit 102A address. It also invited the Applicant to provide further information as soon as possible. There is no evidence that this letter (or any other correspondence from the Tribunal to the Applicant) was returned to sender.
By letter dated 11 September 2015 addressed to the Applicant at the unit 102A address, the Tribunal invited the Applicant to attend a hearing on 7 October 2015. The letter advised that the Tribunal was unable to make a favourable decision on the information before it, that if the Applicant was unable to attend the hearing she should advise the Tribunal as soon as possible and that if she did not attend the Tribunal may make a decision on the review without taking further action to allow or enable her to appear or may dismiss the application without further consideration of the application or the information before it. The hearing invitation letter enclosed information about hearings and a response to hearing invitation form.
Also in the Courtbook is an Administrative Appeals Tribunal, Migration and Refugee Division document headed Postal Dispatch Register for 11 September 2015 (the same day as the date of the hearing invitation letter) for the New South Wales Registry and Team RRT. That document has a number of columns. In addition to redacted references to details of other recipients, the register includes a reference to a letter to the Applicant with the case number appearing on all other Tribunal documents relating to the review. The recipient’s address on the letter is said to be the unit 102A address the Applicant provided to the Tribunal. A column marked “sent to mail room (tick if applicable)” is ticked in relation to this letter and the details of size and weight are specified. The “placed in mailbox (tick)” column is also ticked beside the entry for this letter. The last two columns (marked “mail officer to complete”) bear a signature.
The register also contains a completed and signed certification that the mailbag contained the letters listed and a certification by a different named person (with a signature) that the mailbag containing the letters listed was “[collected by/delivered to] Australia Post]”. Contrary to the instructions on the form, neither of those options was crossed out. A time of 16.43 was specified. In the space for date, there is a date stamp for the Administrative Appeals Tribunal which bears the date 11 September 2015, but also states “received”.
The Applicant did not respond to the hearing invitation or otherwise contact the Tribunal in relation to her review application.
Also in evidence before the Court as an annexure to an affidavit of Usipua Talele Soliola of 1 February 2017 is a document (said to have been inadvertently omitted from the Courtbook) which is headed “Registry Checklist NO REPLY TO INVITATION” completed 1 October 2015 in relation to the Applicant’s review (referred to by case number). It records that the hearing invitation was sent to the correct person at the correct address and that the Tribunal files, in-tray and mailbox were checked for any response to the hearing invitation, that there were checks for any change of address or appointment of an authorised recipient and that an “SMS hearing reminder” was sent to the Applicant’s mobile telephone number (which is listed correctly) at just after 11am on 29 September 2015.
The Applicant did not attend the scheduled hearing on 7 October 2015.
In its decision, dated 12 October 2015, the Tribunal affirmed the delegate’s decision.
The Courtbook contains a copy of a Tribunal letter dated 13 October 2015 addressed to the Applicant at the unit 102A address enclosing a copy of the Tribunal decision and a fact sheet which, among other things, advised her of her review rights.
On 9 November 2015 the Applicant made a written request to the Tribunal for a copy of the decision and notification letter. In her request form she again provided the unit 102A address, the same mobile phone number and, for the first time, an email address. The Tribunal sent an email to the Applicant attaching a copy of the requested documents. The Applicant sought review within the time provided for in s.477(1) of the Migration Act.
In its reasons for decision the Tribunal recorded that it had invited the Applicant to a hearing by letter of 11 September 2015, that she was advised the Tribunal could not make a favourable decision on the information before it and that if she did not attend and a postponement was not granted the Tribunal may make a decision without further notice and that no response was received. The Tribunal then stated: “[t]he usual pro-forma checks on service was undertaken and proved to be good.” (sic)
The Tribunal stated that no hearing invitation form had been returned to it and that the Applicant had not appeared for the scheduled hearing. It recorded that, in those circumstances, pursuant to s.426A of the Act it had decided to make a decision on the review without taking any further action to enable the Applicant to appear before it.
The Tribunal summarised the legal framework and the Applicant’s claims made in connection with her application for protection, in particular her claim that she had been a Christian all her life; that her father belonged to the underground church, that he organised house gatherings and undertook bible classes; that he had been was arrested twice, sent to a labour camp but later released; and also that in September 2007 while the Applicant was attending a gathering at home she was arrested, questioned, assaulted and imprisoned for 15 days, but released after a fine was paid by her family.
The Tribunal concluded that the decision should be affirmed. It did not find the Applicant’s claims to be genuine. It had regard to a number of factors, including the absence of particulars or any evidence of any specific Christian activities in Australia and the absence of any indication of any specific Christian knowledge on the part of the Applicant. It found on the evidence before it that there was no genuine engagement by the Applicant with any Christian-related activities in Australia. It had regard to the absence of any details explaining the Applicant’s claimed adversities as a practising Christian in China or of supporting information (apart from her assertions). It took into account the fact that there had been no testing of the Applicant’s credibility at a hearing and that it was not able to analyse any evidence to support the Applicant’s claim of being a practising Christian. The Tribunal also had regard to the absence of any evidence that the Applicant had any knowledge of Christianity or evidence that she was baptised. It found, on the information before it, that the Applicant was not a Christian.
Hence, on the evidence available to it, the Tribunal found that if the Applicant were to return to China she would not practise Christianity or be involved in any “Christian-related activities”. It was satisfied there was no real chance she would suffer serious harm on the basis of religious faith or real risk she would suffer significant harm within the complementary protection criterion. It found that she did not meet any of the criteria for a protection visa and affirmed the decision under review.
The Applicant sought review of the Tribunal decision by application filed on 13 November 2015. She did not file any amended application or written submissions. At the hearing she said she had nothing further to say. Nonetheless, I asked her about each of the grounds in her application in an attempt to clarify what was intended.
I have had regard to what the Applicant said and also to all the material before the Court in considering the grounds in the application and the issues drawn to the Court’s attention by the Applicant and by the solicitor for the First Respondent.
The first ground is as follows:
I was not advised of my application out come (sic) correctly.
While this ground refers to receiving advice of the application outcome, when I asked the Applicant what she meant by this she said she did not receive “it”. When I asked her what she did not receive, she said she was not asked to go to the Department to see the officer there.
Insofar as the Applicant intended to take issue with whether she received an invitation to the interview with the delegate, the decision under review in the present case is the Tribunal decision.
To the extent that this ground is intended to relate to whether the Applicant was notified of the delegate’s decision, I note that the delegate’s decision record was sent by post under cover of a letter dated 13 March 2015, to the Burwood address then provided by the Applicant as both her address for correspondence and her residential address. When applying to the Tribunal for review of the delegate’s decision the Applicant stated that she had received a letter notifying her of the delegate’s decision by post, notwithstanding the evidence of such letter being returned to sender. In any event, the Applicant clearly was aware of the delegate’s decision and applied to the Tribunal within the prescribed time. No basis for jurisdictional error is apparent in this respect.
If this ground is intended to relate to notification of the Tribunal’s decision, there is nothing in the material before the Court to indicate that the Tribunal failed to notify the Applicant of its decision in compliance with the statutory requirements, including those in s.430A(1) of the Act, by a method specified in s.441A of the Act. The letter addressed to the Applicant enclosing the Tribunal decision was addressed to the unit 102A address she had provided to the Tribunal. The Applicant applied to the Court within the time provided for review under s.477 of the Act. The Applicant did make a request on 9 November 2015 to the Tribunal for a copy of the Tribunal decision and notification letter. However this would appear to suggest that she was aware of the fact that there had been a decision. She was provided with the copies requested. The Applicant’s unparticularised complaint is not such as to establish jurisdictional error. Ground 1 as pleaded, or as may have been intended, is not made out.
Ground 2 is that Tribunal “should invite me to the interview”. When asked about this ground the Applicant said that other people went to an interview and that she did not and that she had heard that other people received letters inviting them to an interview. Insofar as the Applicant intended to assert that she did not in fact receive an invitation to the Tribunal hearing there is no evidence before the Court in that respect (and, in any event, see s.441C of the Act).
There is evidence that by letter of 11 September 2015 the Tribunal invited the Applicant to attend a hearing under s.425 of the Act. On its face the letter contains the matters required to be included in a hearing invitation letter (see ss.425A and s.426 of the Act). The letter was addressed to the unit 102A address provided by the Applicant as her residential and postal address in the review application. There is no suggestion that the Applicant notified the Tribunal of any change of address for correspondence before the date of the hearing invitation letter.
Under s.425A of the Act where the Applicant is not in immigration detention a hearing invitation letter must be given by one of the methods specified in s.441A of the Act. Section 441A(4) provides for dispatch within three working days of the date of the document by prepaid post or by other prepaid means to the last address for service or residential or business address provided to the Tribunal by the recipient in connection with the review.
Despite the obvious advantages of being able to track registered mail, there is authority that dispatch by registered post is not necessary to meet the requirements of notification under s.441A(4) of the Act: see SZBHU v Minister for Immigration and Citizenship& Anor [2007] FMCA 212 at [29] and SZBHU v Ministerfor Immigration and Citizenship [2007] FCA 1614 at [12].
The solicitor for the Minister addressed the issue of whether the Court could be satisfied in the particular circumstances of this case that the Tribunal met the requirements of s.425A of the Act, in particular that notice was given to the Applicant by one of the methods specified in s.441A (see the concerns addressed in SZVFW v Ministerfor Immigration and Border Protection & Anor (2016) 311 FLR 459; [2016] FCCA 2083 and see Minister for Immigration and Border Protectionv SZVFW [2017] FCAFC 33).
In this case the postal dispatch record for the Tribunal in the Courtbook bears the same date as the hearing invitation letter. It contains more information than the postal dispatch record I considered in SZVFW. It records that a letter of that date addressed to the Applicant at the unit 102A address was sent to the mailroom (although it bears a Tribunal “received” stamp dated 11 September 2015) and confirms that the mail bag was “collected by/or delivered to” Australia Post on that date). The relevant official has failed to cross out the “incorrect option” of either “collected by” or “delivered to” but I accept that, as contended for by the solicitor for the Minister, whether the mail bag was “collected” by or “delivered” to Australia Post there is a certification that the mail bag came into the possession of Australia Post and it can be inferred that this occurred on 11 September 2015.
In the particular circumstances of this case I am satisfied that the Tribunal dispatched the letter within three working days of its date by prepaid post to the last residential (and business) address provided to the Tribunal by the Applicant. Hence the Tribunal met the requirements of s.441A(4) of the Act. By virtue of the deemed notification provision in s.441C of the Act the Applicant was taken to have received this letter. The prescribed period of notice was given in compliance with s.425A(3) of the Act, having regard to s.441C(4) and reg.4.35D of the Migration Regulations 1994 (Cth).
I am also satisfied on the material before the Court that the Tribunal complied with the statutory requirements in s.425A(1) as to notification of the time, date and place of the scheduled hearing and that in compliance with s.425A(4) of the Act, the letter contained a statement as to the effect of s.426A of the Act such that the Tribunal was empowered to make a decision under s.426A of the Act when the Applicant did not attend the hearing.
It has to be said that in its reasons the Tribunal was somewhat opaque in its explanation of the basis on which it proceeded to make a decision under s.426A of the Act without taking further action to allow or enable the Applicant to appear before it. It stated, cryptically:
The usual pro-forma checks on service was (sic) undertaken and proved to be good.
However it appears that this is a reference to the registry checklist annexed to the affidavit of Usipua Talele Soliola of 1 February 2017 which recorded that the hearing invitation was sent to the correct person at the correct address and, significantly, that an SMS hearing reminder was sent to the Applicant’s mobile telephone number on 29 September 2015 reminding her of the hearing scheduled for 7 October 2015.
The Applicant had provided the Tribunal with two methods of contact in her review application: her home (and postal) address and also a mobile telephone number. The Tribunal identified the mobile telephone number as an alternative avenue of communicating with her. It sent her an SMS hearing reminder about a week before the scheduled hearing notwithstanding that she had not engaged in communication with the delegate or the Tribunal beyond the application for a visa and the review application and had not provided the Tribunal with an email address, had not attended the scheduled interview with the Minister and had not submitted documents to the Department or to the Tribunal beyond her protection visa application claims. In that sense she had not actively sought to engage with the Department or the Tribunal (cf. Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393; [2014] FCA 915 at [96]. The application was before the Tribunal for some five months before it sent the hearing invitation letter and over six months before it made its decision.
Despite this, the Tribunal, appropriately, sent the Applicant an SMS hearing reminder. In sending the SMS reminder to the nominated mobile telephone number the Tribunal took a further active step to notify the Applicant of the scheduled hearing (see in that respect SZOPV v Minister for Immigration and Border Protection & Anor [2016] FCCA 182 and SZOPV v Minister for Immigration and Border Protection [2016] FCA 514 at [13] and cf SZVFW and AZAFB v Minister for Immigration and Border Protection (2015) 244 FCR 144; [2015] FCA 1383). This occurred in circumstances where there was no email address provided in the Tribunal review application and no evidence of provision of an email address to the Tribunal or to the Department as an alternative means of contact prior to the Tribunal decision.
Having regard to the particular circumstances of this case, I am satisfied that the Tribunal’s decision to proceed to exercise its discretion pursuant to s.426A of the Act was within the Tribunal’s area of decisional freedom and was not legally unreasonable. It did not lack an evident and intelligible justification in the sense considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. Ground 2 as pleaded is not made out and nor is any jurisdictional error established in relation to the Tribunal hearing invitation or its decision under s.426A of the Act.
Ground 3 is that the Tribunal did not give the Applicant “fairness” and “correct notification of [her] application”. As the Minister’s submissions pointed out, as expressed this ground is so unclear as to be incapable of meaningful response. I asked the Applicant what she meant by ground 3. She said she was supposed to receive a letter for the interview. When asked what she meant by notification of her application she said she did not know.
As discussed above, I have considered the issues of the hearing invitation and whether the Tribunal correctly notified the Applicant of its decision. There is nothing in the material before the Court to establish any failure by the Tribunal to comply with its obligations under the Act in either respect. As indicated, the Applicant sought judicial review within the time provided for under the Migration Act. Ground 3 is not made out.
As no jurisdictional error has been established on any of the bases contended for by the Applicant or arising on the material before the Court the application must be dismissed.
It is appropriate that the Applicant meet the First Respondent’s costs. The amount sought is reasonable in the circumstances of this case.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 11 May 2017
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