SZJIP v Minister for Immigration - [2007] FMCA 243

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJIP v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 243

MIGRATION – Review of decision of Refugee Review Tribunal – whether the Refugee Review Tribunal can proceed with its decision without taking any further action to enable the applicant to appear before it – whether the applicant was denied procedural fairness.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65; 425; 425A; 426A; 441C(4)(a); 474; pt.8 div.2
Migration Regulations 1994 (Cth), reg.4.35D

Applicant:

SZJIP

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG2575 of 2006

Judgment of:

Emmett FM

Hearing date:

19 February 2007

Date of last submission:

19 February 2007

Delivered at:

Sydney

Delivered on:

19 February 2007

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent:

Mr J. Mitchell

Solicitors for the Respondent:

Ms H. Blackman, Blake Dawson Waldron

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2575 of 2006

SZJIP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 4 August 2006 and handed down on 24 August 2006.
The applicant arrived in Australia on 25 January 2006, having legally departed from Zahor on a passport issued in his own name. On

9 March 2006, the applicant lodged an Application for a Protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”).
In his protection visa application the applicant claimed that he feared persecution by the ruling party in Pakistan, the Pakistan Muslim League (“the PML”), during the ruling period of Nawaz Sharif by reason of his membership and political activism with the Pakistan People’s Party (“the PPP”). The applicant claimed to have organised protests against the PML and to have been invited to participate in processions in other cities.
The applicant claimed that, in November 2005, he organised a large procession in Sargodha and was subsequently arrested in December 2005 and beaten by police on the orders of local authorities. The applicant claimed that workers from the PML also beat him at his home, causing him and his family to leave his home. The applicant claimed that, when he reported these incidents to the police, he was not given protection, as a consequence of which he went into hiding. The applicant claimed that he feared being killed by members of the PML.
On 22 May 2006, a Delegate of the first respondent refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 16 June 2006, the applicant lodged an application for review of the Delegate’s decision, although provided no further material in support of his review. In his review application the applicant identified an address for correspondence, as well as identifying his residential address. The applicant did not nominate an authorised recipient.
On 19 June 2006, the Tribunal wrote to the applicant acknowledging his application and inviting the applicant to send any further documents, information or other evidence he wished the Tribunal to consider.
On 28 June 2006, the Tribunal wrote to the applicant, at his address for correspondence, informing him that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The letter went on to invite the applicant to attend a hearing on 4 August 2006. The letter informed the applicant that the Tribunal would only change this hearing date for good reason and, if he thought he may be unable to attend, he should contact the Tribunal immediately. The letter informed the applicant that, if he did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision on his case without further notice. The letter enclosed a response to hearing invitation form which it asked the applicant to complete and return to the Tribunal.
On 31 July 2006, the Tribunal sent a letter to the applicant by express post confirming the hearing date of 4 August 2006. The letter informed the applicant that the response to hearing invitation form had not been returned to the Tribunal. The letter also said the following:
“On 31/7/2006 you were contacted by telephone. You stated that you have not seen the above letter which was sent to your correct address. The Tribunal Member has been contacted about your case and still wishes to have the hearing on the original date. Please see the details below.”
The letter invited the applicant to contact the named officer, Ms Lynne Parrott, on a specified number with any queries.
On 4 August 2006, the applicant did not appear at the hearing and the Tribunal purported to exercise its discretion to proceed with its review without taking any further action to enable the applicant to appear before it, and made its decision.
The Tribunal noted that it had before it the Department’s file and noted that the applicant claimed to be a national of Pakistan, a Muslim and a member of the PPP for more than 20 years. The Tribunal noted the claims made by the applicant in his protection visa application. However, the Tribunal concluded that there was too little information about the applicant to enable the Tribunal to establish the relevant facts. The Tribunal was not satisfied, on the limited evidence before it, that the applicant has a well founded fear of persecution within the meaning of the Convention and, accordingly, affirmed the decision under review.
The applicant appeared unrepresented before this Court this afternoon, although had the assistance of an interpreter.
The applicant sought, and was granted, leave to rely upon an amended application filed in Court this afternoon. The amended application is in the following terms:
“1. The Refugee Review Tribunal denied the Applicant procedural fairness and/or a denial of natural justice and in so doing committed a jurisdictional error and/or error of law.
Particulars
(a) On or about 28 June 2006 the RRT allegedly sent an invitation to hearing to the Applicant pursuant to section 425A of the Migration Act 1958.
(b) The Applicant was to respond to the invitation on or by 14 July 2006. No response was received by the RRT.
(c) On 31 July 2006, an RRT officer contacted the Applicant on the Applicant’s mobile telephone. The Applicant informed the RRT that he never received the invitation to hearing and knew nothing of the hearing date set for 4 August 2006.
(d) The RRT officer informed the Applicant that the officer would make enquiries with the Tribunal Member regarding the hearing and call the Applicant back.
(e) The Applicant received no call or message from the RRT.
(f) The Applicant has a prepaid mobile phone.
(g) The RRT through its telephone conversation with the Applicant on 31 July 2006 was given actual notice that the Applicant was unaware of the hearing date of 4 August 2006 or whether the hearing date was to continue.
(h) On 1 August 2006, the RRT forwarded by express post, a fresh invitation, inviting the applicant to a hearing on 4 August 2006.
(i) By its conduct the RRT ostensibly or actually accepted notice that the Applicant had not received the original invitation and was unaware of the hearing date prior to 31 July 2006.
(j) The Applicant actually received this fresh invitation on the morning of 4 August 2006.
(k) The RRT failed to contact the Applicant by telephone to inform him of the outcome of its enquiries regarding the hearing date and failed to inform him by any means until such time as it was impossible for the Applicant to attend the hearing.
(l) The fresh invitation could not and did not comply with Migration Regulation 4.35D in that it did not provide for 14 days actual notice of hearing or in fact provide any reasonable period of notice.
(m) Not withstanding (l) above, by failing to contact the Applicant prior to 4 August 2006, the RRT denied the Applicant the opportunity to appear before the RRT and present his case, constituting a denial of natural justice and procedural fairness.”
In support of his application the applicant sought to tender a copy of the letter, dated 31 July 2006, from the Tribunal together with an envelope on which was written in pencil “3/8”. Those documents were marked Exhibit 1A.
The applicant gave evidence before this Court that, on 3 August 2006, he received a notice from the post office informing him that it had an express post letter for him. The applicant agreed in cross-examination that, on 31 July 2006, he had been telephoned by a person from the Tribunal. He agreed that he told this person that he had not received the invitation to hearing sent to him on 28 June 2006. The applicant agreed in cross-examination that the person from the Tribunal told him she would check to see if his hearing was going ahead on 4 August and that she would telephone him back with the answer.
The applicant stated that he never received a message or any further communication from any person from the Tribunal until he received the letter, dated 31 July 2006. He stated that, on 4 August 2006, he collected the letter from the post office between 9am and 10 am.
In cross-examination, the applicant agreed that he made no attempt to contact the Tribunal, either on 4 August (being the date of the hearing) or around 24 August 2006, when he received notification of the Tribunal’s decision. The applicant agreed in cross-examination that the telephone conversation that he had on 31 July 2006 was the last communication he had with any person from the Tribunal. It was put to the applicant in cross-examination that he made no effort to contact the Tribunal since 31 July 2006. The applicant stated that he was not aware of the Tribunal’s procedures but ultimately agreed that his answer was, no.
The first respondent read the affidavit of Hayley Anne Blackman, affirmed 12 January 2007. Ms Blackman’s affidavit relevantly annexed three file notes made by Ms Parrot, an officer of the Tribunal and the person with whom the applicant had the telephone conversation on 31 July 2006. The file note, dated 31 July 2006, records the following at 5.25pm:
“I noted that the RA had not responded to our invitation to attend a hearing on Fri. 4/8/06(due by 14/7/2006). I completed a ‘No Response to Attend H.’ form and did a movements printout.
I also noted that there were two phone nos. for contact. I rang the home ph. No. and received no answer. I then rang the mobile no. The RA answered the phone. I asked if he had received a hearing letter sent on 28/6. He said that he hadn’t. I confirmed that he understood what I was talking about. I checked that it had been sent to his correct address- he said that PO Box 591, Yenda was his current address- the same as what was on the letter.
I told him that he had a set hearing on Friday 4/8. I asked if ‘Yenda’ was close to Sydney and he said it was near Griffith. I said that did he want to come to a hearing in his case and he said ‘Yes’. I said that I would need to check with the Mbr who was looking after the case as to whether she wanted the hearing to go ahead on the date we had chosen or whether she wanted it to be put back. I told him that I would phone him back about this- in a ‘few minutes’. He understood this.
I explained the matter to the Mbr. She said that she wished to go ahead with the hearing on the original date as he should have received the letter sent. She asked whether I had checked with him that he had checked his post box as the letter could have been waiting there. I said that I had not – I would ask him when I rang back. She said that if it wasn’t waiting in his postbox I could send another letter and ‘express post’ it stating that 4/8 would still be the H. date.
When I attempted to talk to him again I found that his mobile was ‘unavailable’. I tried three times between about 4pm and 5.20pm- leaving my phone no. for him to ring. There was no voice mail facility available on the phone. I told the Mbr of this occurrence- she agreed that the letter still should be sent. I did another hearing letter (modifie”
There is a further file note dated 31 July 2006 at 5.47 pm:
“Following on from previous file note- cut short as had reached its text limit.
I did another hearing letter(modified) and at about 5pm tried to arrange it to be expressed posted from TSU(however because of lack of staff & resources- express post envelopes may or may not be in locked safe) I will need to speak to Tony Palmer, about it tomorrow.”
And a further file note dated 1 August 2006 at 11.08 am:
“EXPRESS POSTED letter(see previous note) today at George St(Martin Place) Post Office. Envelopes in TSU Manager’s (Marina’s) office & computerised register in S Drive, TSU- Express Post folder- completed.”
At the heart of the applicant’s amended application is a complaint about the decision taken by the Tribunal, made on 4 August 2006, to proceed with its decision without taking any further action to enable the applicant to appear before it.
In exercising its discretion to proceed to make its decision, the Tribunal noted that it had written to the applicant on 28 June 2006 inviting him to attend the hearing on 4 August 2006 and noting that no response was received to that invitation.
The Tribunal also noted that, on 31 July 2006, a Tribunal officer rang the applicant on his mobile telephone number and asked him if he had received the Tribunal’s letter and the applicant had said he had not. The Tribunal noted that, in that telephone conversation, the applicant had confirmed that the Tribunal’s letter of invitation, dated 28 June 2006, had been sent to the correct address. The Tribunal noted that the letter was not subsequently returned unclaimed. The Tribunal noted that the applicant stated in that telephone conversation that he wished to attend a hearing. The Tribunal noted that the Tribunal officer undertook to ring the applicant back in a few minutes to tell the applicant if the member intended to go ahead with the hearing on 4 August 2006. The Tribunal noted that the Tribunal officer recorded that she left her telephone number. The Tribunal also noted that the officer rang back on three occasions later that day to confirm the hearing would go ahead, however, the applicant’s mobile telephone was switched off.
The Tribunal noted that, on 31 July 2006, it sent a letter by express post to the applicant’s correct address, confirming the hearing on 4 August 2006. The Tribunal noted that the applicant did not ring back the Tribunal officer or otherwise make any contact with the Tribunal prior to the hearing. The Tribunal then noted that the applicant had not appeared before it on the day and at the time and place at which he was scheduled to appear. The Tribunal then purported to exercise its discretion pursuant to s.426A of the Act to make its decision on the review without taking any further action to enable the applicant to appear before it.
Section 426A of the Act provides that the Tribunal may make a decision on the review, without taking any further action to allow or enable an applicant before it, if the applicant is invited under s.425 to appear before the Tribunal and the applicant does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Section 425 of the Act provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review and s.425A of the Act sets out the statutory regime required for the issue of the invitation.
The invitation dated 28 June 2006 and sent to the applicant’s postal address, gave the applicant notice of the day, time and place of the hearing before the Tribunal, that date complying with reg.4.35D of the Migration Regulations 1994 (Cth), being more than 14 days after the date of receipt of the invitation, which is deemed received seven working days after the date of invitation pursuant to s.441C(4)(a) of the Act. In the circumstances, I am satisfied that the letter dated 28 June 2006 complied with the statutory regime for the issuing of an invitation.
The applicant, in his amended application, complains that, on 31 July 2006, he informed the Tribunal that he had not received the invitation and knew nothing of the hearing date set for 4 August 2006.
The amended application alleges that there is a denial of procedural fairness to the applicant in the Tribunal’s conduct in proceeding with its decision on 4 August 2006.
The letter, dated 31 July 2006, was sent to the applicant on 1 August 2006 inviting the applicant to a hearing on 4 August 2006. To the extent that letter constituted a fresh invitation to come to a hearing, it did not comply with the statutory regime. However, for the reasons set out below, I do not accept that the Tribunal’s letter, dated 31 July 2006, sent to the applicant by express post on 1 August 2006, was a fresh invitation to the applicant requiring compliance beyond the compliance necessary for its letter of invitation of 28 June 2006.
The Tribunal’s letter, dated 31 July 2006, confirmed that the Tribunal had sent a letter, on 28 June 2006, inviting the applicant to attend a hearing and noting that he was requested in that letter to confirm by

14 July 2006 that he could attend the hearing and that the Tribunal had not received a reply. The letter noted that, on 31 July 2006, the applicant was contacted by telephone and that he stated that he had not seen the letter dated 28 June 2006, although confirmed it was sent to the correct address. The letter then emphasised that:
“The Tribunal member has been contacted about your case and still wishes to have the hearing on the original date.”
The details of the original date, time and place are then repeated. The letter was sent on the Tribunal letterhead with the full contact details, including telephone number, toll-free number and facsimile number of the Tribunal, and the letter also stated:
“If you have any questions, please call Lynne Parrott on 02 9276 5353 about your hearing.”
A fair reading of that letter makes it clear that the Tribunal was doing no more than confirming that it had sent an invitation inviting the applicant to attend the hearing on 4 August to which there had been no response, confirming the contact made by the Tribunal officer with the applicant by telephone on 31 July 2006 and confirming the original hearing date.
There is no further statutory obligation that arises on the part of the Tribunal arising out of that letter that would prevent the Tribunal from exercising its discretion to proceed to make its decision without taking any further step to enable the applicant to appear before it.
The evidence of the applicant is not, in any material respect, inconsistent with the file note of the Tribunal officer, Ms Parrot, or the Tribunal’s letter dated 31 July 2006.
The applicant confirmed, in evidence this afternoon, as stated above, that he took no step at any stage to seek to contact the Tribunal about his hearing, following his conversation with Ms Parrott on 31 July 2006. He stated that it was not until between 9am and 10am on

4 August 2006, that he became aware of the hearing, but that he could not ring the Tribunal because he did not have a telephone number. However, as is clear from Exhibit 1A, being the Tribunal’s letter dated 31 July 2006, the Tribunal’s contact details and the contact details of Ms Parrott are clearly expressed in that letter.

In the circumstances, where there was no contact received by the Tribunal from the applicant following the conversation on 31 July 2006, the Tribunal was entitled to exercise its discretion, pursuant to s.426A of the Act, to make its decision on the review without taking any further action to enable the applicant to appear before it.
As stated above, the Tribunal’s decision noted the claims made by the applicant in his protection visa application and stated that, having regard to the claimed duration of the applicant’s alleged political activism, the applicant had provided scant details about the protests or any other activities he organised.
The Tribunal also noted there was no medical evidence to support the applicant’s claims of beatings and no information about where he or his family went when they fled into hiding, or details of how and where he was again assaulted. The Tribunal also noted that the applicant provided no details about where he went into hiding. The Tribunal concluded that the applicant had provided too little information about himself to enable the Tribunal to establish the relevant facts.
In the circumstances, it was the inadequacy of the information provided by the applicant to the Tribunal that was the reason for the Tribunal not being satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention. Section 65 of the Act mandates that it is for an applicant to satisfy a decision-maker, in this case the Tribunal, that he meets the criteria for refugee status. If the decision-maker is not satisfied that the criteria are met, the decision maker must refuse a protection visa (s.65(1)(b) of the Act).
The conclusions of the Tribunal were open to it on the material before it and for which it gave reasons.
The Tribunal conducted its review and made its decision in accordance with its legislative obligations and its decision is otherwise unaffected by error.
In the circumstances, the Tribunal’s decision is a privative clause decision and, accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 13 March 2007