SZLBE v Minister for Immigration
[2007] FMCA 1979
•19 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLBE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1979 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – claim to have been ill on the day of the Tribunal hearing raised an arguable case that the applicant had not been given a real and meaningful invitation to the hearing. |
| Migration Act 1957, ss.424A, 425 Federal Magistrates Court Rules 2001, r.44.12 |
| Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 |
| Applicant: | SZLBE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2155 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 19 November 2007 |
| Date of last submission: | 19 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 19 November 2007 |
REPRESENTATION
The Applicant appeared in person.
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The matter be listed for final hearing at 10.15 am on 18 December 2007.
The matter proceed as if the parties had dispensed with a show cause hearing.
The applicant file and serve any amended application and affidavits on or before 3 December 2007.
The applicant file and serve any written submissions on or before 3 December 2007.
The first respondent file and serve any amended response and written submissions on or before 10 December 2007.
The costs of today be reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2155 of 2007
| SZLBE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this matter the applicant claims to be a citizen of Thailand and claims to fear persecution in Thailand. The matter is before the Court today on her application that the respondent show cause why relief should not be granted to her.
At a hearing to determine whether an order to show cause should be made the proceedings will not be dismissed pursuant to r.44.12 of the Rules of Court unless the applicant does not have an arguable case. The authorities show that this requires that the lack of a cause of action be clearly demonstrated, that the claim is groundless or that there is a high degree of certainty about the outcome.
In this matter the Refugee Review Tribunal (“Tribunal”) made a decision signed on 31 May 2007 after the applicant had failed to attend a hearing which had been scheduled for 9 May 2007.
Prior to the listed hearing day, the Tribunal sent the applicant a letter dated 5 April 2007 pursuant to s.425 of the Migration Act 1957 (“Act”) as it was required to do in the circumstances. That letter is found at pages 40 and 41 of the bundle of Relevant Documents (“RD”).
Although the applicant sent a “Response to Hearing Invitation” document dated 24 April 2007 to the Tribunal (RD 46), she failed to attend the hearing, as disclosed by the “RRT Hearing Record” (RD 48).
The application which the applicant has filed in these proceedings alleges that the Tribunal erred by breaching s.424A of the Act by failing to deal with an integer of her claim, by failing to consider her claims and by failing to make findings of fact other than commenting that her claims were “lacking in crucial details”.
Given that the Tribunal's finding was based on a lack of satisfaction that the applicant met the criteria for a protection visa, that finding being based on her failure to attend the Tribunal hearing to flesh out the written claims which she had lodged with the Minister's department, the grounds pleaded in the application do not disclose an arguable case. If the Tribunal had complied with s.425 of the Act which thereby permitted it to proceed to the determination which it reached, then its finding of lack of satisfaction was open to it and the pleaded grounds can have no effect on this.
However, at the hearing today the applicant raised an issue about the reason why she did not attend the Tribunal hearing. She told the Court that she had been too unwell to attend the hearing and gave brief evidence of her indisposition at the time of the Tribunal hearing.
The applicant raised her sickness in a letter which she sent to the Tribunal dated 30 May 2007 (RD 52). The Minister points out that the Tribunal considered the contents of that letter and an antecedent telephone conversation the Tribunal had with the applicant and drew attention to that part of the Tribunal's decision record where it states that it did not accept that the letter of 30 May 2007, which contained no medical evidence, established that the applicant was in fact unable to appear before the Tribunal on 9 May 2007.
However, the Tribunal's obligations under s.425 are objective ones and it must invite the applicant to a hearing which is real and meaningful. If through ill-health an applicant is unable to attend a hearing then any decision by the Tribunal based on the applicant's failure to attend a hearing is made in error because the applicant has not been given a real and meaningful invitation to a hearing. As the Full Court of the Federal Court said in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at 561 [37]:
The statutory obligation upon the Tribunal to provide a 'real and meaningful' invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation.
Their Honours continued by reference to cases which indicate that even if the Tribunal thought it was doing the right thing, if, in fact, it was not, then that amounts to jurisdictional error. Thus, in the circumstances of this case, the fact that the Tribunal rejected the applicant's explanation for her absence because it did not find her explanation weighty or convincing is of no moment if, in fact, she was too unwell to attend.
Therefore, the applicant's claim raised at the hearing today that she was too unwell to attend the hearing before the Tribunal raises an issue which, if proved, would amount to jurisdictional error on the part of the Tribunal.
Conclusion
Consequently, I am satisfied that the applicant has demonstrated that she has at least an arguable case.
As a result of this finding the matter will be adjourned pursuant to part 44.12(1)(b) of the Rules of Court to a final hearing. As the applicant has only demonstrated an arguable case based on some brief submissions and evidence today, I do not consider it appropriate that the first respondent be called upon to show cause why the relief claimed by the applicant should not be granted, which is what rule 44.12(1)(b) contemplates. Rather, the matter shall proceed as if the parties had dispensed with the show cause hearing and the applicant will bear the onus of making out her entitlement to the relief she seeks.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 10 December 2007
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