MZZBU v Minister for Immigration

[2013] FCCA 250

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZBU v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 250

Catchwords:
MIGRATION – Application for judicial review of Refugee Review Tribunal’s decision – applicant failing to attend before both delegate and the Tribunal – applicant’s written submission largely misconceived or merits review – Tribunal’s decision clearly open to it – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36(2)(aa), 420, 425, 425A, 426A, 441C

Cases cited:
Selvadurai v Minister for Immigration and Ethic Affairs (1994) 34 ALD 347

Applicant: MZZBU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1330 of 2012

Judgment of: Judge Burchardt

Hearing date: 27 February 2013

Date of Last Submission: 27 February 2013

Delivered at: Melbourne

Delivered on: 15 May 2013

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Ms Whittemore

Solicitors for the Respondent: Sparke Helmore Lawyers

ORDERS

1. That the Application be dismissed pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001.

2. That the Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1330 of 2012

MZZBU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 24 September 2012.  The Tribunal dismissed the applicant’s application to review a decision of the delegate to refuse to grant the applicant a Protection (Class XA) visa.

2. The application was filed on 22 October 2012 and sets out nine paragraphs as grounds of application.  Some of the grounds are relatively formulaic and simply assert jurisdictional error without, in my view, identifying what the error was.

3. Ground 4 notes that “the applicant never received any communication from the RRT but the decision letter”.

4. The grounds also assert errors on the part of the Tribunal which are in part misconceived (see ground 7 which misrepresents the finding of the Tribunal at paragraph 34 of the Tribunal’s decision) or plainly constitute merits review.

5. At the hearing before the Court on 27 February 2013 the applicant was content to rely upon a written submission filed on 8 February 2013.  Almost all of the first page of the submission, as far as I can see, is a word-for-word recitation of the grounds in the originating application.

6. The written submission goes on to refer to section 420 of the Migration Act 1958 (“the Act”) and to assert that the Tribunal failed to act according to substantial justice and the merits of the case.

7. The written submission further asserts Wednesbury unreasonableness.  The written submission goes on to assert that the Tribunal’s decision was an absurd or irrational one and to assert a failure on the part of the Tribunal to accord the applicant natural justice.

8. The written submission contains some generalised references to the law which, in my opinion, do not take the matter any further.

The background facts

1. The applicant is a citizen of India who came to Australia on a student visa and arrived on 23 January 2008.  He did not file his application for refugee protection until 29 February 2012.

2. The applicant’s application gave an address as 24 Don Street, Reservoir, Vic, 3073, and PO Box 656, Reservoir, Vic, 3073 (CB 25).

3. The application set out grounds in a statement at CB27-28.  Generally, the applicant claimed persecution on the basis of his Sikh ethnicity and in part more particularly because of alleged activities as a Sikh militant on the part of his father (this puts the latter matter somewhat more strongly on one view than the materials themselves did).

4. The delegate of the Minister who considered the matter wrote to the applicant on 8 March 2012 inviting him inter alia to attend an interview within seven days (see CB41).  The letter was addressed the post office box address in Reservoir that the applicant had given (CB34).

5. The delegate wrote again to the applicant on 28 March 2012, this time the letter being addressed to 24 Don Street, Reservoir, the other address nominated by the applicant, inviting the applicant to provide comment and information within 28 days (CB42-43).

6. On 21 May 2012 the delegate forwarded to the applicant notification of refusal of his application once again to the post office box in Reservoir (CB44).  That letter indicated the applicant’s entitlement to pursue the matter before the Tribunal.

7. The delegate’s decision (CB48-54) records that the applicant had not arranged an interview as requested by the 8 March 2012 letter nor responded to the 28 March 2012 letter seeking further information about the new Complementary Protection criterion.

8. The delegate found the applicant’s claims to be brief and lacking in detail and went on to assert at CB51:

   “As the applicant has provided no evidence to substantiate his claims, failed to attend an interview and has submitted a statement which is lacking in detail, I am not convinced that the applicant has a genuine fear of harm.”

1. The delegate went on to refer to the lengthy delay between the applicant’s arrival in Australia and his application for a protection visa, referring also to the decision of Heerey J in Selvadurai v Minister for Immigration and Ethic Affairs (1994) 34 ALD 347. The delegate found (CB52):

   “I find it implausible that the applicant would wait until 2012 to apply for a Protection Visa, if he genuinely felt at risk of harm in 2008.  I also find it implausible that the applicant would willingly return to India, if he genuinely feared harm.  I note that the applicant returned to India in 2010 to visit his mother.  I find this action completely inconsistent with his claims.  Based upon the above, I do not accept that the applicant’s claims as credible or genuine.”

1. The applicant plainly received the delegate’s decision because he lodged his application for review (CB55-58).  That application gave his address for service as PO Box 7091, Gardenvale, Vic, 3185.

2. That application was acknowledged by correspondence sent to him at that address on 25 June 2012 (CB59).

3. On 17 August 2012 the Tribunal wrote to the applicant inviting him to appear to give evidence and present arguments on 19 September 2012 (CB62-63).  The letter was sent by registered post to the address in Gardenvale that the applicant had nominated.

4. I note that by affidavit filed on 28 November 2012 from Katherine Wittemore, solicitor for the first respondent, there is exhibited a postage record that shows to my mind beyond doubt that the letter was indeed posted by registered post to the applicant at the Gardenvale address on the asserted date.

5. The letter advising notification of decision was posted to the applicant on 24 September 2012 at the Gardenvale address by registered post (CB69).

6. In my view, the first respondent’s submission that ss. 425 and 425A of the Act have been properly complied with is irresistible. The correspondence was of course deemed to be received within seven days pursuant to s 441C of the Act. In any event, the hearing was still some month and two days away at the time the letter was sent.

7. In my view, there is simply nothing in the applicant’s natural justice argument.

8. I note that the Tribunal, in my view correctly enough, set out this history of non-attendance by the applicant at paragraphs 26 to 28 of its decision (CB76) and I agree with the conclusion that the Tribunal reached, that:

   “In these circumstances, and pursuant to section 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.”

1. It should be noted in this regard, as counsel for the Minister correctly submitted, that it is apparent that the Tribunal had caused the applicant to be telephoned on 19 September 2012 to find out why he had not attended the hearing.  I note that the record made by the relevant officer at CB68 includes:

   “Checked his current postal address, which was correct and explained that he must send Tribunal a written submission explaining why he did not appear for hearing and why the Tribunal should list another hearing for him.  He said he would do that today.”

1. I note that the applicant did not in fact submit anything on that day or before the Tribunal’s decision notification on 24 September 2012.

The merits review matters

1. I do not propose to traverse these matters in great detail.  The criticisms made by the applicant of the Tribunal’s decision are in my view not sustainable.

2. The Tribunal set out the details of the application for review and then dealt with the relevant law in terms that in my view were entirely appropriate.

3. The Tribunal went on to set out all the relevant details of the applicant’s application including those matters that he claimed grounded his fear of persecution in their entirety (CB74-75).

4. The Tribunal recorded the delegate’s decision and the matters arising from the Tribunal’s hearing and the applicant’s non-attendance and went on to deal with the consideration of the applicant’s claims (CB77-78).

5. The Tribunal pointed out correctly that it had been denied an opportunity to test the applicant’s claims because of his non-attendance at the hearing.  The Tribunal in my view correctly recorded the applicant’s claims at paragraph 30 (CB77) as:

   “to be essentially that he fears harm on the basis of his Sikh religion and ethnicity and/or his relationship to his father.”

1. The Tribunal went on to find at paragraphs 32 to 34 (CB77) that:

   “The Tribunal considers the applicant’s claims to be vague and lacking in detail.  He gives no details about his father’s activities as a Sikh activist, the persons seeking to harm his father or the timing of his father’s relocation to Germany.  Had the applicant attended the hearing, the Tribunal would have questioned him about these matters as well as seeking further detail of his own claims of past harm and the reasons why he does not believe he would be protected by the authorities in India.
   On the basis of the very limited evidence before it, the Tribunal cannot be satisfied that the events described by the applicant occurred, nor that they occurred for the reasons asserted by the applicant.  The Tribunal is not satisfied that the applicant has suffered harm as claimed in the past, nor is the Tribunal satisfied that the Indian authorities perpetuated that harm as claimed.  The Tribunal does not accept there to be a real chance that the applicant faces serious harm if he returns to India, now or in the reasonably foreseeable future.
   The Tribunal notes that even if it had been satisfied as to the factual matters underpinning the applicant’s claims, the Tribunal is not satisfied that the essential and significant reason for the persecution the applicant claims he fears is due to the applicant’s race, religion, nationality, political opinion or membership of a particular social group.  The Tribunal is not satisfied on the evidence before it that the treatment asserted by the applicant was for the essential and significant reason of his race or ethnicity, nor any other Convention reason.”

   
   
   
   
   

1. The Tribunal went on to dismiss the claim.

2. The Tribunal also, as it was required to, considered whether the applicant met the complementary protection criterion under section 36(2)(aa), and for the reasons given in relation to the primary claim concluded that he did not.

3. In the circumstances in which the Tribunal considered the matter, bearing in mind the nature of the applicant’s claims and his failure to participate both before the delegate and more particularly before the Tribunal, it seems to me that the Tribunal’s decision was well and truly open to it.

4. The suggestion that the Tribunal’s decision was irrational cannot be sustained for a moment, and likewise the claims of Wednesbury unreasonableness.

5. As a matter of belt and braces I will address the matters raised in the applicant’s submission.

6. The first paragraph (they are not numbered) relevantly asserts that the Tribunal failed to ask for information required in a specific manner.  This is misconceived.  The Tribunal invited the applicant to appear and notified him that he needed to do so because his claim could not be granted on the materials as filed.  This involved no failure of any sort on the part of the Tribunal.

7. The second paragraph raises the question of the receipt of the materials from the Tribunal but I should note that on the materials as filed I would be quite satisfied that the legislative requirements as to notification were met.

8. The second paragraph also criticises the delegate’s conclusion about the applicant’s visit to India.  Not only was the delegate’s decision entirely open to the delegate, but the Tribunal did not rely upon this finding in its conclusions in any event.

9. The third paragraph is difficult to construe, but insofar as it asserts that the Tribunal asked itself the wrong question, in my view this claim is not made out.

10. The fourth paragraph, as I have already indicated, misconstrues paragraph 34 of the Tribunal’s reasons for decision.  The Tribunal simply made a finding in the alternative in the event that it had believed the applicant’s version of events, which it already had made plain it did not.  The alternative consideration was, even if criticism was otherwise open of it, not material to the Tribunal’s conclusion to dismiss the application.

11. The fifth paragraph asserts that the Tribunal failed to send “another letter of interview which the applicant was in belief will be sent by Tribunal”.  That assertion runs directly contrary to the file note to which I have already referred and I do not sustain it.

12. The other matters referred to on the second page of the written submission are matters going to the alleged irrationality of the decision, the Wednesbury unreasonableness matter and the failure to accord natural justice to the applicant.  I have already dealt with these matters.

Conclusion

1. The applicant’s claim in my view fails on all counts and the application must be dismissed with costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  15 May 2013