SZLAL v Minister for Immigration - [2007] FMCA 1459

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLAL & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1459

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case.

Migration Act 1958 (Cth), ss.424A, 425A, 426A
Federal Magistrates Court Rules 2001 (Cth)

First Applicant:

SZLAL

Second Applicant:

SZLAM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2076 of 2007

Judgment of:

Driver FM

Hearing date:

23 August 2007

Delivered at:

Sydney

Delivered on:

23 August 2007

REPRESENTATION

The First Applicant appeared by telephone

Solicitors for the Respondents:

Ms E Baggett
DLA Phillips Fox

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, pursuant to r.44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth) in the sum of $2,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2076 of 2007

SZLAL

First Applicant

SZLAM

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 18 May 2007 and was handed down on 19 June 2007. The Tribunal affirmed a decision of a delegate not to grant the applicants protection visas.
There are two applicants, a husband and a wife from India. They arrived in Australia on 31 January 2007. They applied for protection visas on 12 February 2007. That application was refused by the Minister's delegate on 9 March 2007. The applicants sought review of the delegate's decision before the Tribunal on 2 April 2007. The relevant claims were made by the first applicant, the applicant husband. He claimed religious persecution in Gujarat State in India. He also claimed involvement with the Congress Party.
The Tribunal was not persuaded that it should make a favourable decision on the written claims alone. On 11 April 2007 the Tribunal wrote to the first applicant inviting both applicants to a hearing on

18 May 2007. No response was received.
The Tribunal recites the circumstances in the following terms on page 115 of the court book:
On 11 April 2007 an officer of the Tribunal wrote to the first named applicant advising that the Tribunal had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The first named applicant was invited to give oral evidence and present arguments at a hearing of the Tribunal on 18 May 2007.
I note in that regard that notwithstanding the presiding member's statement, the invitation in its terms was an invitation to both applicants. The presiding member continued:
The first named applicant was advised that if he did not attend a hearing and a postponement was not granted the Tribunal could make a decision without further notice. The letter inviting the first named applicant to a hearing was sent to the address nominated by the first named applicant. The first named applicant did not respond to the invitation to the hearing. He did not attend the hearing on 18 May 2007 and never contacted the Tribunal.
At the time of signing this decision the Tribunal has not been provided with any other address for correspondence. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the first named applicant to appear before the Tribunal.
The Tribunal went on to consider the applicants' claims, but found that there was insufficient detail for it to make a favourable decision. The presiding member relevantly stated on page 116 of the court book:
The first named applicant did not attend the hearing and this leaves the Tribunal with claims which are untested and stated in the most general terms. The Tribunal was unable to explore with the first named applicant how and why his membership of the Congress Party created problems for him, why he became a victim of fanatic Hindus, when, how and by whom he was attacked, whether he suffered any injuries as a result and sought medical attention, when he reported the incidents to the Police, what the Police said and did, why he would have had the same problem if he had relocated somewhere else in India, why he fears his life is at risk, why he did not seek the protection of the government of the United Kingdom when he was there in July 2006 and what is likely to happen to him if he were to return to India in the foreseeable future.
These proceedings began with a show cause application filed on 5 July 2007. The applicants assert notification of the Tribunal decision on

1 June 2007. I am satisfied that the application was filed within time.
The application raises three grounds. Those are:
(1)That the Tribunal made [a] denial of natural [j]ustice. Because it failed to provide an opportunity [for the applicants] to appear before the [T]ribunal.
(2)That the [T]ribunal made [an] error of law and lacked procedural fairness and therefore committed [j]urisdictional error.
(3)That the [T]ribunal's decision was in breach of [s.]424A(1) of the Migration Act.
In the absence of particulars, ground 2 adds nothing to grounds 1 and 3.
The application is supported by an affidavit which annexes a copy of the Tribunal decision. The first applicant in that affidavit refers to his arrival in Australia and his fear. He says he was unable to attend the Tribunal hearing because of sickness. He says the Tribunal did not provide him with an opportunity to appear before it and explain his situation in India. I also received as evidence the court book filed on 24 July 2007. The first applicant confirmed that he had received it.
This matter first came before me on 26 July 2007. On that occasion neither applicant appeared. I made orders in their absence. Prior to making those orders my associate had had two telephone conversations with the first applicant. In the first of those conversations my associate understood from the first applicant that he was on a train on his way to Court. In the second of those conversations my associate understood the first applicant to be saying that he was on a bus near the airport. In any event, the first applicant did not appear until well after the hearing had concluded, but he was provided with a copy of my orders, which were explained to him.
Those orders gave the applicants the opportunity to file and serve an amended application and additional affidavit evidence and written submissions. They have not taken up that opportunity. I listed the matter for a preliminary hearing under r.44.12 of the Federal Magistrates Court Rules 2001 (Cth) today.
Yesterday my associate received by facsimile a letter from the first applicant addressed to the solicitors for the Minister. Relevantly the letter states that the first applicant is very sick and unable to attend the hearing personally. However, the first applicant went on to state he would be willing to appear by telephone. He agreed to present arguments in his case and he expresses a positive attitude towards the hearing.
In the light of that letter my associate telephoned the first applicant to arrange for a telephone hearing today. She was unable to speak to the first applicant but spoke to a woman who identified herself as his wife, the second applicant. The second applicant stated that the first applicant was too sick to attend any form of hearing and would not be attending.
Nevertheless, my associate telephoned the first applicant before I came on the bench this morning and he answered the phone. When the hearing commenced he requested an adjournment for about five days. I understand that the request for the adjournment was based on his asserted illness. This was emphasised by periodic coughing. The first applicant stated that he had pain in his chest and a fever. He told me that he became unwell two or three days ago and felt he would need about five days to recover. However, he also told me that he had not been to see a doctor. He thought he might go to a doctor later. He explained his failure to attend a doctor to date by the fact that he asserts he does not have transport.
I declined the request for an adjournment on the basis that the applicant did not appear to be seriously unwell because he had not sought medical attention. I have no medical evidence that the applicant was too sick to attend today's hearing.
I explored the grounds of review in the application with the applicant and invited submissions from him. He made no meaningful submissions and repeated his request for an adjournment. I confirmed my refusal of that request.
There is no substance to the asserted breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). The Tribunal decision plainly turned upon a lack of detail in the information provided by the applicant himself. It is now well established that no disclosure obligation arises pursuant to s.424A where a Tribunal decision turns upon an insufficiency of information provided by an applicant. There is also no substance to the second ground of review, which is wholly unparticularised.
The only possible issue relates to the first ground of review. The applicants provided in their review application a residential address of 1/33 Canal Street, Griffith. They also provided a postal address of PO Box 1949, Griffith. The review application requested that correspondence be sent to the postal address. The postal address was consistently used by the Tribunal.
In the light of the existence of a residential address it appears that the presiding member was not correct in stating that the Tribunal had no other address at which the applicants could be contacted. The hearing invitation on page 102 of the court book was sent to the postal address but does not appear to have been sent to the residential address. Notwithstanding that apparent error by the presiding member, which is merely an error of fact, it appears to me that the Tribunal met its obligations under s.425 of the Migration Act.
The hearing invitation was sent by registered post. It was sent to the address that the applicants nominated as the address to which correspondence should be sent. An officer of the Tribunal conducted a no reply checklist prior to the hearing, which appears on pages 104 and 105 of the court book.
I infer that in the circumstances it was open to the presiding member to conclude that the hearing invitation had been sent in accordance with s.425A of the Migration Act. The discretion to proceed in the applicants’ absence was thereby enlivened pursuant to s.426A of the Migration Act. I see no jurisdictional error in the Tribunal's exercise of discretion under that section.
I find that the applicants have failed to advance an arguable case of jurisdictional error. Accordingly I dismiss the application pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
Costs should follow the event in this matter. The Minister seeks scale costs of $2,500. The first applicant did not wish to be heard on costs.

I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, pursuant to r.44.15(1) and item 1(b) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth) in the sum of $2,500.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM

Deputy Associate:

Date: 24 August 2007