SZIMT v Minister for Immigration

[2006] FMCA 845

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIMT v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 845

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant failing to attend RRT hearing – RRT not satisfied about her claims – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.425

SZHTI v Minister for Immigration [2006] FCA 702

Applicant: SZIMT

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG754 of 2006

Judgment of: Driver FM

Hearing date: 13 June 2006

Delivered at: Sydney

Delivered on: 13 June 2006

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K McNamara
Phillips Fox

INTERLOCUTORY ORDERS

1. The show cause application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $1,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG754 of 2006

SZIMT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”).  The decision was handed down on 16 February 2006 and the applicant asserts notification of it on the same day.  The show cause application was filed on 14 March 2006.  The applicant does not seek an extension of time and no issue was raised in relation to the need for one[1]. The application asserts that the RRT failed to comply with its duty to invite the applicant to a hearing, pursuant to s.425 of the Migration Act 1958 (Cth) (“the Migration Act”). By response filed on 24 March 2006, the Minister disputes that assertion.

   [1] The application was in fact filed within 28 days of the decision

2. When this matter first came before me on 18 April 2006, it was not apparent to me on the information then available whether the application disclosed an arguable case. I made orders giving the applicant the opportunity to file additional evidence and an amended application and listed the matter for a show cause hearing, pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) before me today. No additional material has been filed by the applicant. Apart from her application, I have before me her affidavit in support filed on 14 March 2006. The Minister has filed a court book on 28 April 2006. I received that as well as the applicant's affidavit as evidence for the purposes of today's hearing.

3. The issues in this case centre upon the question of the invitation to the applicant to attend a hearing before the RRT.  The presiding member, in her reasons, noted that on 28 November 2005, the RRT wrote to the applicant at her address for service.  The RRT advised the applicant that it had considered all of the material before it, but it was unable to make a favourable decision on that information alone. 

4. The RRT invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.  The applicant was invited to give oral evidence and present arguments before the RRT on 19 January 2006.  The applicant did not attend the scheduled hearing.  The applicant did not contact the RRT to explain her non-attendance at that hearing.  (court book, page 77).  On page 81 of the court book the presiding member states that she was satisfied that the RRT had discharged its obligation to provide the applicant with the opportunity to give oral evidence and present arguments before it and that she had effectively declined that opportunity.  The hearing invitation appears on pages 66 and 67 of the court book.  I note that the hearing invitation was addressed to the applicant at her address for service set out in section D of her review application (court book, page 61).  The applicant denies receipt of that letter.  She explains that her non-receipt of the letter was the reason why she failed to attend the RRT hearing.  I accept the evidence on page 65 of the court book that the hearing invitation was sent to the applicant on 28 November 2005.

5. I also note that the applicant told me from the bar table this afternoon that she did not receive correspondence from the Minister's solicitors dated 28 April 2006, sent to her at the same address, enclosing the court book.  I also note that the applicant this afternoon denied receipt of a letter from the Court to her at the same address, dated 10 May 2006, advising her of the appointment of a panel adviser to provide her with advice under the Minister's Panel Advice Scheme.

6. If these assertions are true, they indicate that the applicant has serious difficulties in receiving correspondence at the postal address she has consistently used since she first applied for a protection visa.  She told me that this is a post office box that she shares with a friend.  Whether or not the applicant's assertions of non-receipt of correspondence are true, the RRT, like this Court, cannot be expected to do more than to correspond with the applicant at the address for service she has nominated.  It was not the fault of the RRT if the applicant did not receive the hearing invitation.  It was not the fault of the Minister's solicitors if the applicant did not receive the copy of the court book sent to her for this hearing.  It was not the fault of this Court if the applicant did not receive the notification sent to her of the appointment of a panel adviser.

7. In terms of the validity of the RRT decision, I am satisfied that the RRT met its statutory obligation to invite the applicant to a hearing.  No other arguable jurisdictional error is apparent to me from a reading of the court book.  The RRT decision is a simple one.  The presiding member was unable to make a favourable decision on the limited material that had been provided by the applicant.  The RRT decision essentially confirmed what it had already advised the applicant in the hearing invitation. 

8. I find that the applicant has failed to establish an arguable case of jurisdictional error.

9. The applicant asserted before me this afternoon that today's hearing was unfair because she had not received advice under the Minister's Panel Advice Scheme.  As I have already noted, it is not the Court's fault if the applicant did not receive the notification sent to her of the appointment of Mr Kah[2].  The Court wrote both to the applicant and to Mr Kah on 10 May 2006.  Mr Kah was advised of today's court hearing.  As has recently been confirmed by the Federal Court on appeal, procedural fairness in hearings before this Court do not depend upon applicants receiving advice under the Panel Advice Scheme[3]. 

   [2] The panel adviser

   [3] SZHTI v Minister for Immigration [2006] FCA 702 at [4]

10. I will order that the show cause application be dismissed.

11. Costs should follow the event. The Federal Magistrates Court Rules and scale of costs provide for an amount of $2,500 to be paid at this stage of a migration proceeding. The Minister properly seeks a lesser amount of $1,500. The applicant did not wish to be heard on costs.

12. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $1,500. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date:  20 June 2006