SZFAF v Minister for Immigration

[2005] FMCA 1746

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFAF v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1746

MIGRATION – RRT decision – Indian fearing persecution as Christian – did not attend adjourned hearing – whether received notice of hearing – no error in Tribunal proceeding under s.426A.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.422B, 425A, 426A, 426A(1)(a), 441A(4), 441C(4), 474(1), 483A, Pt.8
Migration Regulations 1994 (Cth), reg.4.35D

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026
VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant: SZFAF

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3211 of 2004

Judgment of: Smith FM

Hearing date: 16 November 2005

Delivered at: Sydney

Delivered on: 16 November 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr J Bird

Solicitors for the Respondents: Phillips Fox

ORDERS

1. The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent. 

2. The application is dismissed. 

3. The applicant must pay the first respondent’s costs in the sum of $3,700. 

FEDERAL MAGISTRATES COURT OF AUSTRALIA  AT

SYDNEY

SYG3211 of 2004

SZFAF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 7 September 2004 and handed down on 30 September 2004.  The Tribunal affirmed a decision of the delegate to refuse to grant a protection visa to the applicant.  

2. The Court’s jurisdiction under s.483A is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. Both Courts have powers under s.39B of the Judiciary Act 1903 (Cth), but these are subject to limitations under Part 8 of the Migration Act. The limitations have the effect that I do not have power to set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476). I do not myself have power to decide whether the applicant qualifies for a protection visa or any other permission to stay in Australia.

3. The present applicant arrived in Australia in April 2004 after spending a year in New Zealand studying.  He claimed that he was a national of India, where his father was a pastor with a church in Mumbai.  He said: 

   After my studies, I was assisting my father in arranging prayer meetings, Bible preaching, church, service, cell groups, etc.  After 2 years I was fully active as a church member (elder). 

4. The applicant said that he was then sent for training in New Zealand in evangelism.  He was advised by his father and local church ministry people that Hindu groups had come to know about his return to India and that he would be more active in evangelism, and that they would “attack on my life”.  He said: 

   In past our church has been attacked in 1992 December and also in the year 1993 January when my father was also been attacked. 

5. No more detail was given to the delegate, nor to the Tribunal after the applicant appealed.  The delegate’s decision was taken on 7 May 2004, and the applicant’s appeal was lodged on 7 June 2004.  His appeal application repeated the claims made in his visa application, in many respects verbatim. 

6. On 28 June 2004 the applicant was invited to attend a hearing before the Tribunal on 11 August 2004.  He was told that this was his chance to give oral evidence and present arguments in support of his claims, and he was invited to send any new documents or written arguments he wanted the Tribunal to consider.  He did not send any documents. 

7. On 11 August 2004 the Tribunal received a medical certificate which stated, without revealing his complaint: “(The applicant) will be unfit for work up to and including: 11/08/2004”. 

8. A letter dated 12 August 2004 was sent by the Tribunal by registered post to the applicant.  I am satisfied by evidence obtained from Australia Post that it was received by the post office at least by 13 August 2004.  The letter referred to the applicant’s request for a postponement of the hearing and stated: “The Member reviewing your case has agreed to reschedule the hearing as follows”.  It identified 7 September 2004 for the rescheduled hearing and said:  

   Important information about your hearing 

   The Tribunal notes that the medical certificate supplied in support of the adjournment of the hearing of this matter on 11 August does not indicate the nature of the medical problem which prevented you from attending the hearing and states that you were unfit for work on 11 August 2004.  No further adjournment will be granted in this matter on the basis of you being unfit to attend the hearing unless a medical certificate which addresses the nature of your medical condition and why it prevents you from attending the hearing is supplied prior to the hearing.

   ·If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice. 

   ·If you have a passport you should bring it to the hearing. 

9. In its reasons delivered by the Tribunal it said: 

   On 28 June 2004 the Tribunal wrote to the applicant at his mailing address advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 11 August 2004.  On 7 July 2004 the applicant advised the Tribunal that he wanted to come to a hearing and give oral evidence.  On 11 August however the applicant contacted the Tribunal and stated that he was unable to attend the hearing on that day because he was ill.  He provided a medical certificate which stated that he was unfit for work up to and including 11 August 2004 but did not specify the nature of his illness or how it prevented him from attending the hearing.  On 12 August 2004 the Tribunal wrote to the applicant at his mailing address granting an adjournment of the matter until 7 September 2004.  The letter noted that no further adjournment would be granted on the basis of the applicant being unfit to attend the hearing unless a medical certificate which addressed the nature of the applicant’s medical condition and why it prevented him from attending a hearing was provided before the hearing time.  The applicant did not attend at the Tribunal on 7 September 2004 or contact the Tribunal to explain his failure to attend or seek a further adjournment.  In these circumstances, and pursuant to s.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. 

10. The Tribunal’s reasoning when affirming the delegate’s decision was: 

    In the Tribunal’s view there is no persuasive evidence that if the applicant returns to India there is a real chance that he will face serious harm as claimed, now or in the reasonably foreseeable future.  According to the evidence available the applicant has lived as a Christian in Mumbai in India his whole life prior to leaving India in 2003 in order to pursue his religious studies in New Zealand.  He states in his application for review, “In 2001 members from the evangelism team visited our church and I got [the] opportunity to study further about evangelism and Christian ministries in New Zealand …”.  Apart from two incidents which he mentions occurred some time ago, in December 1992 and January 1993, the applicant does not claim that he suffered any harm or threats of harm in India prior to leaving although he said that he was assisting his father who was a pastor with church duties and was fully active as a church elder in Mumbai.  There is no persuasive evidence before the Tribunal that things will be different from when the applicant left India if he returns there.  There is no evidence or details about the basis of the applicant’s father’s alleged advice, and the alleged advice of the “local church ministries people”, that the applicant will be harmed by Hindu religious extremist groups if he returns to India.  The Tribunal is not satisfied that the applicant will be harmed by these groups as he claims if he returns to India. 

11. It is plain from this reasoning, that the essential reason for the Tribunal’s decision was that in the absence of the applicant and any supporting information, it was unable to be satisfied as to his claims.  I can find no error by the Tribunal in reasoning in that fashion and certainly no jurisdictional error. 

12. The applicant’s applications in this Court, of which there have been three, contain repetition of his claims for refugee status but do not identify any contention which could provide jurisdictional error.  The one exception is the following ground found in the further amended application filed on 3 February 2005.  In this for the first time the applicant contended: 

    1.The applicant has not been given the opportunity to present the case before the Tribunal.  Initially the matter was posted for interview by the Tribunal on 11 August 2004.  I could not attend it due to my ill health and I informed the authorities about that and enclosed a medical certificate.  After that the applicant received information from the Tribunal stating that the matter was postponed for hearing on 7 September 2004.  The applicant states that he did not receive the notice of hearing listed for 7 September before that date.  The applicant received that only on 13.09.04. 

13. Although directed to file evidence by way of affidavits, the applicant did not do so.  At my invitation he gave oral evidence today and tendered without objection a correspondence he conducted with Australia Post in January this year, after receiving legal advice in the course of the present proceeding.  He wrote to the postmaster at his local post office, and asserted that when he picked up an article on 13 or 14 September: 

    I was told by one of your staff, that I had one more reg‑post to be picked, which was lying in this post‑office possibly for the last 3 weeks.  I collected both the reg‑post and signed on your received book. 

    Now I need to prove to the sender of reg‑post (no 1) that I did not receive their reg‑post till possibly 13 or 14 Sept 2004.  And it was lying in your post‑office since the day you received it and I had not been informed about this reg‑post to be picked up neither it was sent back to the sender.  If you could pls make some arrangements. 

14. A response dated 8 February 2005 from a person at the “Customer service centre” at Strawberry Hills said: 

    Thank you for your inquiry about Registered Post item RP20093898 which was posted to you recently. 

    Unfortunately I cannot provide you with an explanation as to why the Registered item was not carded or why you were not advised that you had a Registered item awaiting collection. 

    On behalf of Australia Post, I would like to extend our apologies for any inconvenience this matter may have caused.  Should you have any concerns about your Registered Post item please call the number provided below. 

15. I do not read this correspondence as containing an admission by Australia Post that, in fact, its records showed no attempt was made to serve the registered letter notifying the applicant of a rescheduled hearing within a reasonable period.  The statements attributed by the applicant to the officer of the local post office, even assuming this were true, do not contain such an admission.  In my opinion, the Australia Post response to the complaint does not prove that the applicant was not notified of the existence of a registered item for collection soon after the letter was sent to him, nor that he did not actually receive it in time to attend the hearing. 

16. The applicant was cross‑examined about his claim that he did not receive the invitation until he received his invitation to attend a handing down.  It was put to him that if this were true, he would have asserted that fact earlier, whether to the Tribunal before the handing down or subsequently prior to commencing the present proceedings or earlier in the course of the present proceedings.  The applicant disputed these contentions. 

17. Regrettably, an affidavit obtained by the Minister’s solicitors concerning their efforts to obtain information from Australia Post was not presented until in the course of submissions.  It attached a copy of a card recording the history of this registered post item.  Some parts of it are blanked out, but it appears to show a signature of a recipient of the letter on 16 August 2004.  However, the applicant was not cross‑examined about this document, nor about the signature of the recipient appearing on it, and I am not prepared to draw the inference that it was his.  Weighing up all the evidence concerning whether the applicant had actual notice of the rescheduled date in time to attend on 7 September 2004, I am left in doubt, and I am prepared to give the applicant the benefit of the doubt. 

18. However, in my opinion, this finding does not assist the applicant. The Migration Act contains provisions for the deemed receipt of correspondence from the Tribunal whose objective is to avoid the need to resolve such disputes about actual receipt. They set up, in effect, a regime of presumptive receipt where documents are duly sent. I have today been taken to the provisions of ss.425A, 441A(4), 441C(4) and reg.4.35D of the Migration Regulations 1994 (Cth), and accept that the present rescheduling letter was sent within a time allowing the letter to be described as an invitation under s.425A to appear before the Tribunal (see s.426A(1)(a)). It is not necessary for me to examine whether compliance with s.425A and the notice of service provisions are required in the context of a notice of a hearing rescheduled at the request of an applicant, but I note that there is at least one authority that suggests that it does not (see SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026 at [29]).

19. Section 426A(1) empowers the Tribunal, where an applicant has been invited under s.425 and does not appear on the scheduled day, to “make a decision on the review without taking any further action to allow or enable the applicant to appear before it”.  There is now clear authority that the Tribunal may give effect to that power in circumstances such as the present, and that it is irrelevant whether or not the applicant received actual notice of the invitation (see VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 (“VNAA”) at [15] and [16]).

20. Even if ordinary principles of procedural fairness might have allowed the setting aside of the Tribunal’s decision in the circumstances claimed by the applicant, in my opinion it is clear that s.426A and the service provisions considered in VNAA are intended to be an exhaustive statement of an applicant’s rights in this respect in a case such as the present, where s.422B applies.

21. For the above reasons, I consider that the applicant has not identified a failure of procedure by the Tribunal amounting to a jurisdictional error by reason of his absence from the scheduled hearing for whatever reason. In the absence of any other jurisdictional error affecting the Tribunal’s decision, the decision is therefore a privative clause decision for which relief is barred by s.474(1), and I must dismiss the application.

I certify that the preceding twenty‑one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  2 December 2005