SZNCO v Minister for Immigration

[2009] FMCA 645

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNCO & ANOR v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 645

MIGRATION – Review of RRT decision – where applicant submitted a second review application with a postal address different to the address for service originally provided – whether Tribunal complied with s.425 when it sent the hearing invitation to the original address – where applicant failed to attend hearing despite a telephone call from the Tribunal in which he confirmed his intention to attend – whether Tribunal obliged to give notice under s.424A.

Migration Act 1958 (Cth) ss.36(2)(a), 91R(2), 414, 415, 420, 424, 424A, 425, 426A, 441A

SZEZI v Minister for Immigration [2005] FCA 1195
SZFWZ v Ministerfor Immigration [2007] FCA 263
SZCIC v Ministerfor Immigration [2006] FCA 1194
SZHZB v Ministerfor Immigration [2006] FCA 547
SZHSQ v Ministerfor Immigration [2006] FCA 1295
SZBHU v Ministerfor Immigration [2007] FCA 1614

First Applicant: SZNCO

Second Applicant: SZNCP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3 of 2009

Judgment of: Raphael FM

Hearing date: 2 July 2009

Date of Last Submission: 2 July 2009

Delivered at: Sydney

Delivered on: 2 July 2009

REPRESENTATION

For the Applicant: In person

Solicitors for the First
Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent's costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3 of 2009

SZNCO

First Applicant

SZNCP

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who arrived in Australia on 24 March 2008 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 21 April 2008, together with his wife who has no independent claims. A delegate of the Minister refused to grant the applicants’ protection visas and notified them by letter dated 17 July 2008. On 6 August 2008, the applicant applied for a review of that decision from the Refugee Review Tribunal.  It would appear that the application sent on that day was either not received by the Tribunal or was received by the Tribunal and mislaid. On 12 September 2008, the applicant, having heard nothing from the Tribunal, wrote to it attaching a further copy of the application [CB 107] and [CB 103 – 105].

2. The Tribunal considered the application and on 31 October 2008 wrote to the applicants at the address given by them on the application form inviting them to a hearing on 4 December 2008.  It was to be a video conference hearing between Griffith and the Tribunal in Sydney.  At [CB 128] there is a case note from the Tribunal indicating that a member of its staff had telephoned the applicant on 26 November 2008 inquiring whether he had received the hearing invitation for 4 December which had been sent to his PO address in Griffith.  The phone call may well have been prompted by the fact that the letter attaching the application for review had, as its address, a PO Box in Mildura.  The note advises that the applicant had confirmed that he had received the invitation to the hearing and would be attending.  However, the applicant did not attend the hearing and on 8 December 2008 the Tribunal determined to affirm the decision under review.

3. The grounds upon which the applicant claimed he was a person to whom Australia owed protection obligations were set out in his PVA and found at [CB 33 – 36].  I note that at [CB 9] in response to paragraph 15 of Form B, the applicant indicates he received no assistance in completing the form which is written almost entirely in English and which does not have an interpreter's declaration. Notwithstanding that, in response to question 9 of Form C, the applicant indicates that he only speaks Gujarati and would require an interpreter if he was called to an interview.  The document is handwritten, save for the responses to questions 41 – 45 which are all typewritten.

4. In short, the grounds indicate that the applicant was a supporter of the Congress Party in the State of Gujarat and that he had assisted some Muslims following the Godhara communal riots.  This had incurred the wrath of the BJP who had threatened the applicant, abused and assaulted him.  The applicant was so concerned that he left Gujarat and went to live in Bombay for a few months, returning to his home in December 2007.  He then helped his local Congress Party candidate in upcoming elections which the BJP won.  He was told that there were charges laid against him by the BJP leaders that he was involved in a plot to start communal riots.  He left the town and went to live in the countryside for a few months and eventually paid money to a travel agent who organised a visa and the trip to Australia.

5. The Tribunal noted that it had written to the applicant advising him that it had considered all the papers relating to his application but was unable to make a favourable decision on those alone and invited him to a hearing.  The applicant was informed that, if he did not attend the hearing and there was no postponement, a decision could be made without providing him with a further invitation.  There does not appear to have been a response to the hearing invitation so, on 26 November 2008, a member of the Tribunal staff telephoned the applicant.  The applicant indicated that he would attend the video conference but he did not do so.

6. The Tribunal then proceeded to make its decision, pursuant to s.426A of the Migration Act 1958 (the “Act”).  It found that the applicant's claims were expressed in vague, general terms and did not provide essential details. 

   “The applicant has provided no details about the workings of the charity he claimed to have organised with his father.  He has provided no information as to how the charity was set up, how it was managed and how exactly the money collected was distributed.  He has not provided detailed information about the hurdles created by the BJP, whether the propaganda campaign against the charity brought about any consequences and how exactly and when he was harassed by BJP supporters. 

   The applicant has provided insufficient details in relation to the claimed incident in March 2007 and has not indicated how he was “abused” and “assaulted”.” [CB 139] at [39].

   At paragraphs [41] to [43], the Tribunal sets out further concerns it had about the lack of information.

7. In its decision, commencing at [CB 140], the Tribunal was unable to be satisfied that the applicant was a member of the Congress Party and sets out a series of lacunae in the details of the applicant's grounds for fearing persecution.

   “Given the generality of the applicant's claims, without more information, it is difficult to know what significance can be attached to his assertions.  He has not provided any further information to the Tribunal which would enable it to be satisfied that he has suffered persecution in the past; that his fear of facing persecution in the future is owing to a Convention ground or that his fear is well-founded.”

   The Tribunal concluded that it could not be satisfied within the provisions of s.36(2)(a) that the applicant was a person to whom it could grant a protection visa.

8. On 5 January 2009 an application was filed in this Court in typed form and was prepared by a “friend”. It contains, as ground 1, an allegation of failure to accord procedural fairness under s.424 and s.424A of the Act and makes reference to a requirement by the Tribunal to provide the applicant with details of “claims based on adequate State protection”. In ground 2, the applicant makes reference to Article 1A(2) of the Refugees Convention and claims that he falls within it. It continues with reference to the law relating to the exercise of the Tribunal's powers, setting out the provisions of ss.91R(2), 414, 415 and 420 of the Act. Finally, the grounds suggest that the Tribunal has committed a serious jurisdictional error by failing to assess or carry out the real chance test. I will deal with these matters, although, in fact, the most serious issue in this case was one raised by the Minister himself acting as a model litigant and which related to the provision of a hearing pursuant to s.425 of the Act.

9. The decision of the Tribunal was based fairly and squarely upon its lack of satisfaction which came about because of the failure of the applicant to attend the Tribunal hearing and provide more details of the claims which he had already made and which the Tribunal had indicated were not enough to convince it on the papers.  There was no reference to independent country information, there was no reference to adequate State protection and there was nothing to which the “real chance test” would attach. 

10. Insofar as the allegations concerning ss.424 and 424A are concerned, the duties of the Tribunal were seminally described by Alsopp J in SZEZI v Minister for Immigration [2005] FCA 1195 at [29].

    “The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of requested further assistance and explanation that was the reason. Thus, in my view, there was no failure to comply with s.424A.”

    SZEZI has been applied, for example, SZFWZ v Ministerfor Immigration [2007] FCA 263 per Edmonds J at [14]; SZCIC v Minister for Immigration [2006] FCA 1194 per Ryan J at [29]; SZHZB v Ministerfor Immigration [2006] FCA 547 per Stone J at [8]. Notwithstanding that some doubts were expressed by Rares J in SZHSQ v Ministerfor Immigration [2006] FCA 1295, at [40 - 44], at [45] his Honour did say:

    “Although my mind has wavered on the point, I am of the opinion that the better view is that the Tribunal's use of the failure of the appellant to give evidence is to be viewed in a similar fashion. At the end of the day, the Tribunal concluded that, on the very limited information available, it was not satisfied that the appellant would be at risk of persecution were she to return to China or that there was any real chance that she would be persecuted if she did. Notwithstanding my doubts, I find that the Tribunal was not obliged to give notice under s.424A(1) and that I should dismiss this ground of appeal.”

    I am satisfied that, in this particular case, there was no jurisdictional error of the type raised by the applicant in his application.

11. The matter raised by the Minister related to the giving of notice to the applicant of the hearing invitation.  It is to be recalled that, in the application itself, the applicant gave as his address for service an address in Griffith.  When the copy application was faxed to the Tribunal with the letter [CB 107], the letter said:

    “So please check my status and send me letter on my postal address.”

    The postal address referred to was a PO Box in Mildura.  There was no formal change of address for service.  The Tribunal sent its acknowledgement of the application and the hearing invitation to the Griffith address by registered post.  There is no evidence in the file that the letter was returned.  On 31 October, a further letter was sent putting off the hearing from 21 November 2008 to 4 December 2008.  This was also sent by registered post to Griffith and, again, there is no indication that it was not received. As previously referred to in these reasons, on 26 November 2008, there was a telephone call between a member of the Tribunal's staff and the applicant. 

12. At the hearing today, the applicant told me that he had received the telephone call and that he had told the Tribunal that he would be attending but he did not attend because he was sick.  When I asked him why he had not told the Tribunal that he was sick, either prior to the hearing or after it, and why he had not produced any medical evidence, he told me that he did not have a Medicare card and that he had gone to a private doctor. At a later stage, after Mr Baird had made his submissions on behalf of the Minister, the applicant appeared to change his story.  He suggested that, whilst he had received the telephone call from the Minister, he did not understand a word of it because he did not speak any English.  I asked the applicant to go into the witness box where I questioned him.  At the end of the questioning, I asked the applicant whether the truth of the matter was that he had received the telephone call and that he had not gone to the Tribunal because he was sick.  The applicant told me that that was the case.

13. I will also say this. The applicant had arranged, together with his wife, to fly into Australia. Once there, he joined a substantial Indian community in western New South Wales. With the aid of a “friend”, he completed a complicated application for a protection visa. He received a letter from the delegate advising him that his application had been refused. Again with the assistance of a friend, he completed a complicated application for review by the Tribunal. When he received no response to that application, he attended at the offices of DIMA or Centrelink and sought assistance. He acted on the advice given to send by fax a further copy of the application. He was sophisticated enough to have kept a copy.

14. I would infer from these facts that when the applicant did receive a telephone call from the Tribunal he would have known that it was important and if he did not understand he would have taken steps to ensure through a “friend” that the Tribunal was contacted again so that he did understand. I prefer the applicant's statement that he did not attend because he was sick and I am satisfied that the applicant knew that there was a hearing on 4 December and, for reasons of his own, did not appear.

15. The Minister argues that the Tribunal complied with the provisions of s.441A by dispatching the hearing invitation by pre-paid post to the last address for service provided to the Tribunal by the recipient. The last address for service being the Griffith address as no change of address for service had been provided to the Tribunal even though there had been a request to send documents to the Mildura address.

16. It has been held that the applicant must clearly notify the Tribunal of a change of address for service; SZBHU v Ministerfor Immigration [2007] FCA 1614 at [45] – [47], and the cover letter which referred to the Mildura address did not contain any clear or explicit statement that the address utilised in the application had been changed. Whilst I think that this is probably the correct interpretation of the law and, thus, there was no breach of s.425 of the Act, I would add for the sake of completeness that, even if I was wrong in this, I would propose to exercise my discretion not to grant the applicant the relief claimed because I am satisfied that he was aware of the hearing and, thus, any failure by the Tribunal to comply with the provisions of s.441A was technical.

17. I have already noted that all the documents sent to Griffith were sent by registered post and that there is no indication that they were returned.  The inference one can draw from this is they were, in fact, picked up by the applicant.  The file note from the Tribunal indicates that the applicant told the staff member that he knew about the hearing and had received the hearing invitation.  The evidence given by the applicant in relation to this incident was unsatisfactory. The Tribunal was not to know that the applicant was ill and at no time has the applicant ever raised this matter, save at this very hearing.  I am not satisfied that the applicant was sick at the time.

18. I am satisfied that the Tribunal did not fall into jurisdictional error in the manner in which it came to its decision in this case. I am satisfied that the Tribunal did not breach the provisions of s.441A and I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,000.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  9 July 2009