MZAIL v Minister for Immigration

[2016] FCCA 40

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAIL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 40

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – applicant failing to attend interview with delegate and also not attending Tribunal hearing – whether Tribunal improperly failed to put country information to the applicant – whether Tribunal erred in proceeding despite absence of the applicant – no errors in Tribunal’s procedure and no errors in its decision – application dismissed.

Legislation:

Migration Act 1958

SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415

Applicant: MZAIL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1462 of 2014

Judgment of: Judge Burchardt

Hearing dates: 11 & 19 November 2015

Date of Last Submission: 19 November 2015

Delivered at: Melbourne

Delivered on: 19 January 2016

REPRESENTATION

The Applicant: In person (assisted by an interpreter)

Counsel for the First Respondent: Ms Noble

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The name of the Second Respondent be changed to ‘Administrative Appeals Tribunal’.

2. The Application filed 21 July 2014 is dismissed.

3. The Applicant shall pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1462 of 2014

MZAIL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 21 July 2014 the applicant filed an Application seeking judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 17 June 2014. The grounds of application are that:

   “1.    The Refugee Review Tribunal failed to put to the applicant for comment the independent country information on which it relied in making its decision.

   2.    The Tribunal breached the rules of procedural fairness.

   3.    The decision of the Tribunal is affected by jurisdictional error in making the decision.”

2. The Affidavit in support effectively takes the matter no further.

3. On 15 October 2014 Registrar Caporale made orders by consent which gave the applicant inter alia the opportunity to file any amended application and further affidavits. He has not done so.

4. The first respondent filed written submissions on 3 November 2015. The next two paragraphs are a paraphrase of part of them.

5. The applicant is 34 years old and a citizen of Malaysia who arrived in Australia on 7 June 2013 on a Visitor visa valid until 7 September 2013. On 3 September 2013 the applicant lodged his application for a protection visa. He listed his address as 31/55 Goulbourn Street, Liverpool NSW 2170 (Court Book (“CB”) 2).

6. On 9 January 2014 the Department sent a letter to the applicant at the nominated address to attend an interview on 6 February 2014. That letter was returned marked “Return to Sender” as it was unclaimed and on 20 February 2014 a delegate of the first respondent refused the application for a visa.

7. It should be noted that the matters set out in support of the visa application, which are at CB7 and CB9, assert that the applicant had supported demonstrations in Malaysia in July 2011 and he was one of 644 people arrested, having been detained for two weeks. He asserted he was “terribly tortured in the detention centre”. He asserted that he had supported later demonstrations and had been warned by Malaysian Police many times. He asserted that the election system in Malaysia is not fair and said at paragraph 47 of his application (CB9), “Details will be provided later”.

8. It should be noted from the decision of the delegate (CB35-47) that the applicant had not attended the interview and therefore had not provided sufficient details of his claims to persuade the delegate that he should be granted the visa. The delegate’s decision was once again sent to the applicant at his nominated address (CB41).

9. On 26 March 2014 the applicant lodged an application in the Tribunal seeking review of the delegate’s decision and nominated his address again as 31/55 Goulburn Street, Liverpool NSW 2170 (CB53).  However, the address nominated for correspondence (CB55) was PO BOX K182 HAYMARKET.

10. On 16 May 2014 the Tribunal sent the applicant a letter inviting him to appear before it on 17 June 2014 to the Post Office Box address nominated by the applicant (CB61-62). The applicant did not appear before the Tribunal on the scheduled hearing date on 17 June 2014, on which day the Tribunal proceeded to determine the application and affirm the delegate’s decision.

11. The decision of the Tribunal is short. It notes at paragraph 14 that the applicant had said he would provide additional information and had not done so (CB81). The Tribunal said at paragraph 15:

    “Of some concern is how the applicant could have known of the delegate’s decision.  The applicant has applied for review to the Tribunal in circumstances whereby the only correspondence sent to him in relation to the decision was the Department letter dated 20 February 2014.  It was returned to the Department as return to sender on 25 March 2014.  The notification of the interview with the delegate, the letter dated 9 January 2014, was also returned to sender on 5 February 2014.  How is it possible the applicant knew his application had been refused?  How did he know to seek a review?”

12. In the circumstances these are understandable and valid questions.

13. The Tribunal went on to note that the applicant had not attended the Tribunal hearing and traversed his claims as I have characterised them earlier. The Tribunal found at paragraph 17 (CB82):

    “The applicant has made general and untested assertions.  He has not attended for hearing to have them tested and to substantiate his claims.  He has not taken up the opportunities offered to him to give evidence and present arguments in support of his application.  In the circumstances I do not accept any of them as true.  I find that he is not a credible witness.  I consider his application is opportunistic and has been made to extend his stay in Australia.”

14. The Tribunal went on to dismiss the claims.

15. The applicant’s grounds of application can in my view be dealt with briefly.

16. So far as Ground 1 (failure to put in country information to the applicant for comment) is concerned it should be noted that the Full Court of the Federal Court in SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [76]-[107] per Tracey and Foster JJ established that s.424AA and s.424A do not require country information to be put to an applicant. Furthermore, beyond the Tribunal’s finding that it was “aware there were arrests at the time of the protest in 2011” in Malaysia, a finding inherently favourable to the applicant, there is simply no country information upon which such criticism advanced by the applicant can be made out. Further, quite how the Tribunal could have put any country information to the applicant, given that he did not attend the hearing, seems unclear.

17. So far as Ground 2 is concerned there is no lack of procedural fairness, in the circumstances where the applicant had failed to attend before the delegate and the Tribunal, in the Tribunal proceeding to hear and determine the matter. The decision to do so was not, in any way, unreasonable.

18. There was no want of procedural fairness in the Tribunal proceeding in the way that it did.

19. When the matter came before the Court the applicant, who was self-represented, said he was a Malaysian citizen. He referred to his educational qualifications and confirmed that he had read the first respondent’s written submissions. He said he rejected the allegations made against him. He said he had asked for advice from his migration agent and had not heard anything. Although he tried to call the agent he did not answer after he received money from the applicant. The applicant said he asked the agent whether there was any update as to his visa and the agent said he did not know. He said information sent to the agent had not been received by him and said he still had copies of his text messages to the agent. He said this was why he did not attend the Tribunal hearing. He said he changed his address according to where he worked.

20. Counsel for the first respondent was prepared to rely upon the written submissions filed.

21. In reply the applicant said again that he was not notified because of his change of address. This was his first time in Court and he had no previous experience about procedures and so on.  He said that although he did not have evidence he did have a friend. He said on 9 July 2011 he did attend a rally and some very unhappy things had happened but he just attended the rally. He said he and his friend attended peacefully but the police arrested him and he was put in a cell in Kuala Lumpur for two weeks. He said some people were arrested that day and released but he was detained for two weeks.

22. I note from an Affidavit filed by Julia Noble affirmed 3 November 2015 that postal records of the Tribunal show that on 19 May 2014

    
    

    a letter was sent to the applicant at the Post Office Box address nominated. It seems far more probable than otherwise that that is the letter dated 16 May 2014 at CB63-64 (erroneously described as CB61-62 in Ms Noble’s Affidavit). The Tribunal does not advert to that letter having been returned as not claimed.

23. All of this goes to show all the more clearly in my view that the applicant’s assertions as to his not having received the invitation to the hearing are not made out.

24. In his oral submissions made at Court, the applicant referred to his arrest and detention in Malaysia but did not repeat the assertion as to having been mistreated and tortured during that time. I would have expected him to have brought this to the Court’s attention.

25. In all the circumstances I can see no jurisdictional error in the Tribunal’s decision. The procedure the Tribunal adopted was entirely reasonable in the circumstances.

26. It follows that the application will be dismissed with costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 19 January 2016