CKT15 v Minister for Immigration

[2016] FCCA 3005

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKT15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3005

Catchwords:
MIGRATION – Application for a protection visa – review of decision of Administrative Appeals Tribunal – whether the applicant was invited by the Tribunal to attend a hearing – whether the applicant was afforded the opportunity to present evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 425A, 441A, 441C

Cases cited:

AZAFB v Minister for Immigration & Border Protection [2015] FCA 1383
Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73

Applicant: CKT15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3128 of 2015

Judgment of: Judge Smith

Hearing date: 25 October 2016

Date of Last Submission: 25 October 2016

Delivered at: Sydney

Delivered on: 25 October 2016

REPRESENTATION

The applicant appeared in person.

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3128 of 2015

CKT15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant is a citizen of China who arrived in Australia on 5 July 2014 and lodged an application for a protection visa on 23 July 2014. Essentially, she claimed that she feared persecution upon return to China because of her Christian faith. The applicant was invited to an interview to be conducted by a delegate of the Minister in connection with her application. The applicant did not attend at the time scheduled for that interview and on 11 March 2015, the delegate made the decision not to grant the applicant a protection visa.

Tribunal’s decision

1. On 31 March 2015 the applicant applied to the Refugee Review Tribunal[1] for review of the delegate’s decision. The applicant gave, in her application, an address in Burwood as her contact details and in response to the question of where she wanted correspondence to be sent about her application. A mobile telephone number was also provided by the applicant as a contact number in Australia.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. By letter dated 10 September 2015, addressed to the applicant at the address given by her for correspondence in her review application, the Tribunal invited the applicant to attend a hearing to be conducted on 13 October 2015. The evidence before the Court is that letter was sent by ordinary prepaid post on 11 September 2015. That is, the day after the date appearing on the letter. However, the applicant did not attend the hearing before the Tribunal at the time on the day appointed for that hearing, and the Tribunal decided to proceed to make its decision without taking any further steps to allow her to so appear.

3. It appears that before the hearing, the Tribunal had taken what was described as “the usual pro-forma checks on service”, which the Tribunal described at [3] of its reasons, to have proven to be good. The checklist indicating the action undertaken by the Tribunal is also in evidence before the Court. That checklist notes that an SMS hearing reminder was sent to the applicant’s mobile telephone at 11:01:44am on 6 October 2015; that is, a week before the scheduled date for the hearing.

4. There was no correspondence from the applicant or any other attempt by her to contact the Tribunal. The Tribunal handed down its decision on 20 October 2015 affirming the delegate’s decision. The Tribunal did not believe the applicant was genuine in her claims for protection and gave the following reasons for that conclusion at [13] of its decision:

   …

   a)The applicant did not attend either the interview with the Department or the Tribunal hearing. No explanation for non-attendance was received by either the Department or the Tribunal;

   b)The personal statement attached to the PVA is the only information in support of her claims for persecution. The personal statement does not contain any detail of the sort one would have expected of person facing persecution and in fear of harm if she returned to China in the foreseeable future;

   c)The personal statement contains the assertion stated earlier. The assertion has no supportive information. It contains no details where the Tribunal can assess its reliability and authenticity;

   d)The Tribunal has not had the opportunity of speaking to the applicant to test her claim;

   e)The applicant has given no specific reason why she would have been detained and treated the way she claims or why she was singled out for torture;

   f)The applicant delayed her departure from China to Singapore by three years. This is not the response of someone who is in fear of their safety;

   g)The applicant travelled to Singapore in 2005 and stayed there for nine years before she arrived in Australia and applied for the PVA. Such delay is not consistent with a genuine fear of harm for a convention-based reason;

   h)The applicant’s passport illustrates that she has returned to China several times since 2005. Such seamless to-ing and fro-ing from one’s country of alleged persecution is not consistent with a genuine fear of harm if she returns to her home country in the foreseeable future;

   i)The question in her PVA asking for the religion the applicant practices has been left blank;

   j)The applicant has not submitted any information to support her claim that she is a Christian at all. There is no information on the file to support her assertion that she has any knowledge of Christianity either here or in China. The applicant did not claim at any time to be baptised.

Consideration

1. The applicant now seeks judicial review of the Tribunal’s decision. In her application, the applicant states:

   1.I wasn’t given chance to present my evidence.

   2.AAT didn’t invite me to go to the interview.

   3.AAT didn’t give me procedural fairness by not giving me an interview. This is not fair to my application.

2. At the hearing the applicant appeared unrepresented. In light of that, counsel for the Minister made submissions in respect of the application first. In response to those submissions, the applicant simply stated that she did not know about the hearing. The facts before the Court reveal that the Tribunal did not make the error asserted by the applicant in her application.

3. The obligation in s.425 of the Migration Act 1958 (Cth) is to invite the applicant to appear before the Tribunal to give evidence and present arguments related to the issues arising in relation to the decision under review. If the applicant is invited to appear before the Tribunal, the Tribunal is required by s.425A of the Act to give the applicant notice of the day, the time and place at which the applicant is scheduled to appear. Unless the applicant is in immigration detention, which was not the case here, that notice must be given by one of the methods prescribed by s.441A of the Act.

4. One of those methods is dispatch by prepaid post or other prepaid means as provided by s.441A(4) of the Act, set out below:

   (4)Another method consists of a member or an officer of the Tribunal dating the document, and then dispatching it:

   (a)within 3 working days (in the place of dispatch) of the date of the document; and

   (b)by prepaid post or by other prepaid means; and

   (c)to:

   (i)     the last address for service provided to the Tribunal by the recipient in connection with the review; or

   (ii)    the last residential or business address provided to the Tribunal by the recipient in connection with the review; or

   (iii)   if the recipient is a minor-the last address for a carer of the minor that is known by the member or officer.

5. Each of the requirements of that section was met in this case. Importantly, in light of the applicant’s submission, s.441C(4) of the Act provides that:

   (4)If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

   (a)if the document was dispatched from a place in Australia to an address in Australia-7 working days (in the place of that address) after the date of the document; or

   (b)in any other case-21 days after the date of the document.

6. In this case, that means that the applicant was taken to have received the invitation to hearing on 19 September 2015. In light of that, the Tribunal complied with its obligation under s.425A of the Act and was not obliged to take any further steps to ensure the applicant attended a hearing: Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC (2006) 150 FCR 439 at [39]; [2006] FCAFC 73.

7. There was nothing in the facts of this case to suggest that it was unreasonable for the Tribunal to proceed to make its decision as it did. There was no suggestion from the applicant that she might, in fact, make further efforts to attend the hearing. As I have noted, there was no communication at all from her to the Tribunal in connection with the review, or in particular, with any hearing.

8. For those reasons, the circumstances are distinguishable from those considered by the Federal Court in AZAFB v Minister for Immigration & Border Protection [2015] FCA 1383.

Conclusion

1. I can see no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:         29 November 2016