MZZFI v Minister for Immigration
[2013] FCCA 588
•21 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZFI v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 588 |
| Catchwords: MIGRATION – Judicial review of Refugee Review Tribunal decision – application for a Protection (Class XA) Subclass 866 visa – Applicant provided with an opportunity to comment on his claims – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 36(2)AA, 44(1)(a), 424A(1), 425, 425A, 425A(2)(a), 425A(3), 426A 1951 Convention Relating to the Status of Refugees 1967 Protocol Relating to the Status of Refugees |
| SZIGQ v the Minister for Immigration and Citizenship [2007] FCA 328 SZBYR v the Minister for Immigration and Citizenship [2007] HCA 26 |
| Applicant: | MZZFI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 62 of 2013 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 22 May 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 21 June 2013 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the FirstRespondent: | Mr Rogers |
| Solicitors for the First Respondent: | Australian Government Solicitor |
THE COURT ORDERS THAT:
The Application filed 17 January 2013 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 62 of 2013
| MZZFI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 14 December 2012. By that decision the Tribunal affirmed a decision of a delegate of the First Respondent (‘the Delegate’) to refuse to grant the Applicant and his wife a Protection (Class XA) Subclass 866 visa.
The Applicant filed his Application on 17 January 2013. The grounds, as set out in that Application, are as follows:-
“1. The Refugee Review Tribunal failed to carry out its statutory duty.
2. The Tribunal failed to provide the Applicant with an opportunity to comment on his claim.
3. he (sic) Tribunal breached section 424A of the Migration Act 1958 in making its decision.”
The Respondent filed a Response on 24 January 2013 in which it sought that the Application be dismissed and that the Applicant pay the First Respondent’s costs of the proceeding. The Response sets out the basis for the seeking of such orders, being that the decision under review is not affected by jurisdictional error.
The Applicant has not filed any amended application nor written submissions in these proceedings. Counsel for the First Respondent filed Contentions of Fact and Law on 30 April 2013. A Court Book was also filed by the First Respondent on 19 March 2013 and is introduced into evidence.
Background
The Applicant and his wife arrived in Australia on 11 April 2012 as the holders of Subclass 676 (Tourist) visas. Those visas were issued on 2 March 2012 and valid until 11 July 2012. The Applicant and his wife are citizens of Indonesia. The Applicant described himself, in his application for a Protection (Class XA) Subclass 866 visa, as a small business owner who, since February 2000 until April 2012, had run his own electrical store in Surabaya, Indonesia.
On 5 July 2012, the Applicant applied for a Protection (Class XA) Subclass 866 visa. His wife also applied for such a visa as a member of the family unit and was included in the application. Included with the Applicant’s application for a visa was an undated statement setting out the Applicant’s claims for protection.
On 20 September 2012, the Delegate determined that the Applicant was not a person to whom Australia has protection obligations under s.36 of the Migration Act 1958 (Cth) (‘the Act’) and cl.866.221 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’) and refused to grant the Applicant the visa. The Delegate noted that on 10 July 2012 the Department of Immigration and Citizenship (‘the Department’) sent a letter to the Applicant and his wife inviting them to contact the Department to arrange an interview to discuss the claims made by them. The letter contained a departmental contact phone number. The Delegate noted there was no indication that the letter was not received by the Applicant and his wife. At the time of the Delegate’s determination, no reply or response had been received by the Department and the Delegate proceeded to make a decision based on the information then before her.
On 19 October 2012, the Applicant applied to the Tribunal for review of the Delegate’s decision. In that application for review, the Applicant provided as his address to which correspondence about the application should be forwarded as being Post Office Box K656 Haymarket, New South Wales 1240. The Applicant had not appointed an authorised recipient, as was indicated in the provision of the above address in Part C, paragraph 13 of the Application. That Application was dated 11 October 2012.
On 19 November 2012, the Tribunal wrote to the Applicant at the address provided by him stating that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the Applicant to appear before it to give evidence and present arguments relating to the issues arising in the review at a hearing on 14 December 2012 at 9.30am. The Tribunal’s letter was sent by registered post addressed to the Applicant at Post Office Box K656 Haymarket, New South Wales 1240. As said above in these reasons, that address was the address nominated by the Applicant in his Application for review as the address to which he wanted the Tribunal to send correspondence about his application.
The Applicant did not appear before the Tribunal on the day and at the time and place of the hearing. Pursuant to s.426A of the Act, the Tribunal decided to make a decision on review without taking any further action to enable the Applicant to appear before it.
On 14 December 2012, the Tribunal affirmed the Delegate’s decision. The Applicant was notified of the Tribunal’s decision by letter dated the same date and sent to Post Office Box K656 Haymarket, New South Wales 1240.
The Applicant filed an Application for judicial review of the Tribunal’s decision on 17 January 2013.
The Applicant’s Claims
In summary, the Applicant claimed to fear harm in Indonesia for reason of his Chinese ethnicity, that is, his race. In particular, he claimed that:-
a)he was discriminated against because of his Chinese/Indonesian ethnicity;
b)he faced a risk of being killed by local Indonesians;
c)working as a salesman at Joyo Mas Bicycle Store and prior to 2000, he was discriminated against by his boss and co-workers leading him to quit in 1989;
d)in 1990 he found work with a Chinese/Indonesian employer where he reported some of his Indonesian colleagues to their employer for stealing, leading to them being dismissed;
e)his former colleagues knew that they had been dismissed because he informed on them and they beat him and his family, as a result of which he moved house and quit his job;
f)he could not find work as he was regarded as “an enemy” by some Indonesians. Indonesian bosses would not hire him and Chinese bosses were too fearful to hire him;
g)he started his own electrical goods store but it did not run well because local Indonesians regularly took goods without paying; and
h)in 2011 his ex-colleagues located him, robbed his store and left him badly injured, as a result of which his family was in danger again.
Tribunal’s Findings and Reasons
The Tribunal accepted the Applicant as a national of Indonesia and assessed his claims against that country.
The Tribunal noted that the Applicant had been invited to attend a hearing before it by invitation dated 19 November 2012. The invitation informed the Applicant that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. The Tribunal noted that on 11 December 2012 it consulted the Australia Post “Track an item” service in regards to the letter dated 19 November 2012 which was sent by registered post to the Applicant on 19 November 2012. That inquiry demonstrated that the letter had been “awaiting collection” on 20 November 2012 and that it was “delivered” on 21 November 2012.
The Tribunal found the Applicant had not attended the scheduled hearing on 14 December 2012, nor had he or his wife contacted the Tribunal about the failure to attend. They did not nominate a person to be an authorised recipient for them. In these circumstances and pursuant to s.426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the Applicant to appear before it.
The Tribunal referred to the claims that were before it. It did not accept those claims, observing that the Applicant’s claims were general and lacking in detail in significant respects. The Tribunal noted that the Applicant had provided no evidence to support his claims, despite being invited to attend a hearing before the Tribunal. The Tribunal noted the Applicant had provided no detailed information regarding the discrimination and mistreatment he claimed to have suffered at his workplaces, or in his search for employment, or in regards to the more serious allegations that he and his family were assaulted and his business robbed. The Tribunal found it had insufficient evidence to be satisfied that the events and circumstances raised by the Applicant, in fact, occurred. The Tribunal said, in paragraph 39 of its reasons, the following:-
“…The Tribunal has insufficient evidence to be satisfied that the events and circumstances raised by the applicant are factual. In these circumstances, on the evidence before it, the Tribunal is not prepared to accept that the applicant suffered discrimination in Indonesia, or that he or any member of his family was threatened or assaulted in Indonesia, or that his business was robbed or that he suffered theft, harassment or any other harm in operating his business, or that he suffered any form of harm for reasons of his Chinese ethnicity, or any other Convention related reason.”
On the evidence before it, the Tribunal was not satisfied there was a real chance of the Applicant being persecuted either now or in the reasonably foreseeable future if he was to return to Indonesia. The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees. The Tribunal also found that due to its finding that it did not accept the Applicant’s claims, there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Indonesia, there was a real risk that he would suffer significant harm. The Tribunal was therefore not satisfied that the Applicant met the complimentary protection criterion for the visa in s.36(2)AA of the Act.
Consideration
None of the grounds raised by the Applicant in his application are meritorious and accordingly, this application will be dismissed with the Applicant to pay the First Respondent’s costs.
The Tribunal carried out its statutory duty. It considered the claims that were before it and made findings with respect to them. That is a matter for the Tribunal. The Tribunal provided the Applicant with an opportunity to comment on his claims. The Applicant was invited to a hearing on the basis that the Tribunal had considered all of the material before it but was unable to make a favourable decision on that material alone. The Applicant did not attend the Tribunal hearing. On the hearing of the matter before this Court, the Applicant asserted that the address provided by him in his application was that of a friend who had left Sydney. He implied that he therefore had not received the invitation from the Tribunal or had received it late. The reasons for the Applicant’s non-attendance do not matter however, so long as the Tribunal has complied, as I find it did, with ss.425 and 425A of the Act when inviting the Applicant to a hearing. The Tribunal was entitled to proceed under s.426A of the Act, having complied with ss. 425 and 425A of the Act, to consider and decide the matter without making further inquiries. In SZIGQ v the Minister for Immigration and Citizenship [2007] FCA 328 at paragraph 5, Downes J said:-
“In the Federal Magistrates Court, the appellants gave evidence that they did not open the post box where the invitation was sent until after the hearing date. Turner FM did not accept that the letter was late in arriving. However, the authorities are clear that the reason for non-attendance at a hearing does not matter. If the Tribunal has complied with ss 425 and 425A of the Migration Act in inviting an applicant to attend a hearing, it may proceed under s 426A of the Act to consider and decide the matter without conducting any further inquiries. See NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121; VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 ; [2004] FCAFC 134; NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 and Others [2005] FCAFC 73; Minister for Immigration and Multicultural Affairs and Indigenous Affairs and Another v SZFHC (2006) 150 FCR 439 ; [2006] FCAFC 73; SZDPB v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2006] FCAFC 110 and Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142. In several of these cases the invitation was allegedly never received by the applicant. See VNAA v MIMIA; MIMIA v SZFHC and SZDPB v MIMIA.”
The invitation provided by the Tribunal in letter of 19 November 2012 complied with s.425A of the Act in that:-
a)it gave notice of the day on which, and the time at which, the Applicant was scheduled to appear;
b)it was given to the Applicant who was not in immigration detention, by one of the methods specified in s.44(1)(a) of the Act (s.425A(2)(a) of the Act). In particular, it was dated, then dispatched within three working days by prepaid post to the last address for service provided to the Tribunal by the Applicant in connection with the review;
c)the period of notice given was at least the prescribed period pursuant to s.425A(3) of the Act; and
d)the notice contained a statement to the effect of s.426A of the Act, thereby complying with s.425A(4) of the Act. The notice stated “if you fail to attend the scheduled hearing, the tribunal may make a decision without taking any further action to allow or enable you to appear before it”.
There was no obligation on the Tribunal, as submitted by the First Respondent, to invite the Applicant to comment on or respond to information under s.424A(1) of the Act. The Tribunal’s failure to accept the Applicant’s evidence and the limitations it identified in the evidence were not “information” within the meaning of s.424A(1) of the Act. As was said by Gleeson CJ, Gummow, Callanan, Heydon and Crennan JJ in SZBYR v the Minister for Immigration and Citizenship [2007] HCA 26 at paragraph 18:-
“… However broadly "information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.”
The Application filed 17 January 2013 will be dismissed and costs shall follow the event.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 21 June 2013
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