SZNHW v Minister for Immigration

[2009] FMCA 548

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNHW v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 548

MIGRATION – Review of decision of the Refugee Review Tribunal – no appearance before Tribunal – Tribunal complied with all statutory and regulatory requirements – Tribunal properly invited applicant to hearing – no obligation on Tribunal to make further enquires as to why applicant did not appear – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 422B, 424A, 425, 425A, 426A, 441A, 441C
Migration Regulations 1994 (Cth), reg.4.35D

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] FCA 35
Minister for Immigration and Multicultural Affairs v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 11
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
SZLYD v Minister for Immigration and Citizenship [2008] FCA 1748
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679

Applicant: SZNHW

First Respondent: MINISTER FOR IMMIGRATION & CITZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 563 of 2009

Judgment of: Nicholls FM

Hearing date: 1 May 2009

Date of Last Submission: 1 May 2009

Delivered at: Sydney

Delivered on: 1 May 2009

REPRESENTATION

Appearing for the Applicant: In person

Solicitors for the Applicant: Nil

Appearing for the Respondent: Ms E Warner Knight

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application made on 10 March 2009 is dismissed. 

2. The applicant pay the first respondent’s costs set in the amount of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 563 of 2009

SZNHW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made under the Migration Act 1958 (Cth) (“the Act”) on 10 March 2009, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on

   
   

   4 February 2009, which affirmed the decision of a delegate of the first respondent to refuse the grant of a protection visa to the applicant.

Background 

1. In compliance with orders made in this matter, the Minister has put before the Court a bundle of relevant documents (the Court Book – “CB”) and from this documentation I note, relevantly, the following.

2. The applicant is a citizen of the People’s Republic of China (“China”), who arrived in Australia on 6 July 2008, and applied for a protection visa on 14 August 2008 (reproduced at CB 2 to CB 30, with annexures).

3. In his application he claimed that the reason for leaving China was that his family had violated the “one child policy” and that the local Guang Dong authorities had increasingly been punishing him and his family. He feared that he would be sent to gaol, and otherwise punished, if he were to return to China.

Before the Delegate

1. On 9 October 2009 a delegate of the respondent Minister refused this application (CB 36 to CB 45). The delegate found that, in the circumstances of the applicant’s failure to attend an interview which had been scheduled for him, he was unable to test a number of assertions made by the applicant in his claims. Accordingly, the delegate was unable to reach the requisite level of satisfaction such that the visa could be granted (CB 45).  

2. The invitation to the interview before the delegate appears to have been sent by registered post to the address provided by the applicant in his application.  This address was given as both his residential and postal address. The material before the Court (in particular, the corresponding registered post numbers, at CB 31 and CB 46) reveals that this letter, which had been sent to this particular address, was returned to the Minister’s department as “unclaimed”.

The Tribunal

1. On 10 November 2008 the applicant applied to the Tribunal for review of this decision. In this application the applicant provided the same residential and postal address, being the one address, as he had provided in his application for the protection visa (CB 52, CB 53). 

2. Following receipt of the application for review, the Tribunal wrote to the applicant by letter dated 11 November 2008. This letter was sent by post to the applicant (CB 55 to CB 56). In that letter the Tribunal set out the process by which it was going to conduct the review. In particular, the letter set out the importance of attending a hearing before the Tribunal. It was described as the opportunity to give the Tribunal evidence in support of the application.  This letter was also returned to the Tribunal as unclaimed. (See the postal stamp “11 November 2008” at CB 63, and the Tribunal receipt stamp dated 11 December 2008 at CB 55, being the relevant letter, which supports this proposition.)

3. The Tribunal again wrote to the applicant by letter dated 26 November 2008 (CB 57). In this letter the Tribunal stated that on the material before it, it could not make a decision in favour of the applicant. Accordingly, the applicant was invited to attend a hearing which was scheduled for 4 February 2009.

4. I note that, in particular, and with reference to the application for review (CB 52 to CB 53), this letter was sent to the applicant’s last notified address for correspondence, which was also the last notified residential address. The letter was sent by registered post (CB 57). However, it was returned by Australia Post to the Tribunal on 3 December 2008 (CB 61) bearing the advice: “Left Address/Unknown” (CB 59).

5. The applicant, therefore, did not attend the hearing before the Tribunal on the date and at the place that had been scheduled for it. Importantly, there is nothing before the Court to show that the Tribunal received any communication from the applicant – even in the nature of requesting information as to the progress of his application. In those circumstances, the Tribunal stated in its decision record that it proceeded to make a decision without taking further action to enable the applicant to appear before it ([21] at CB 72). 

6. The Tribunal found the applicant’s claims, as they were put before it, to be variously lacking in detail, lacking in evidence, inconsistent, and unsupported. Given that the applicant failed to attend the hearing, the Tribunal, therefore, was not able to be satisfied that the applicant was a person to whom Australia owed protection obligations. In those circumstances, the Tribunal affirmed the delegate’s decision.  

7. Subsequent to the making of the decision, the Tribunal sent a letter dated 4 February 2009 to the applicant again directed to the only address for service provided by the applicant to it. 

   
   

   This letter notified the applicant of its decision (CB 67) and enclosed a copy of its decision record. This was also returned to the Tribunal, marked “Unknown” on 10 February 2008 (CB 76). 

8. From the material also provided to the Court, it appears that on

   
   

   19 February 2009 the applicant then made an application, pursuant to the Freedom of Information Act1982 (Cth), requesting a copy of the decision record (CB 77). The postal address provided in this document was different to the one that he had previously given. While the street, and the suburb, remained the same, the street address number provided was “184”, instead of “188”, which had been previously given.

9. A telephone conversation appears to have taken place between the applicant and an employee of the Tribunal on 20 February 2009. (There is a Tribunal employee’s file note at CB 78.) The applicant is reported as having said that he had changed his address, and that he had: “advised a solicitor of this about a month ago”. [There is nothing in the material before the Court to show that the applicant was represented by a solicitor, or indeed by anyone else, before the Tribunal.]

Application to the Court

1. In the application to the Court the applicant puts forward the following as the grounds of the application:

   “1.The Tribunal’s decision was affected by jurisdictional error.

   Particulars: 

   I was not given an opportunity to appear before the Tribunal. I have never received the hearing invitation letter. The decision record shows that the registered mail was returned to the Tribunal unclaimed. 

   2.I changed my address during my RRT application.  RRT failed to offer me a new hearing opportunity after it received my new address. 

   3.N/A

   …”

Before the Court

1. At the hearing before the Court today the applicant appeared in person. He was assisted by an interpreter using both the Cantonese and the Mandarin languages. From my observation of what transpired in Court, I am satisfied that the applicant understood what was being put to him.  Ms Warner Knight appeared for the first respondent.

2. The applicant asked for his case to be delayed because he would be harmed if he were to return to China. He therefore wished to remain in Australia. It was clear that, despite having received legal advice in this matter from a lawyer on the panel of the Court’s legal advice scheme, the applicant had little understanding of the relevant processes and, indeed, little understanding of what was required in relation to the proceedings today.

3. I explained to the applicant the role of the Tribunal, ultimately, and in effect, in deciding the question as to whether or not he was entitled to protection in Australia. I also explained the different role of the Court and the power of the Court, in examining the Tribunal’s decision, to ensure that it had been made according to the law. In short, that the Court has no power to allow the applicant to remain in Australia on the basis of any claim of persecutory harm in China.

4. I did not understand the applicant’s statement to be a request for an adjournment of the proceedings today. But if it was, I refused such an adjournment on the basis that the applicant’s statement that he would be harmed on return to China was, in all the circumstances, as explained to the applicant, insufficient to cause the Court to further delay this matter. As I explained to the applicant, the venue to address that issue was, of course, the Tribunal.

5. To the extent that it was a statement made from the Bar table, and not provided in any evidentiary context to the Court, I note carefully that the applicant stated that he had not told the Tribunal of his change of address, as I understood it, at any relevant time.

Consideration

1. This is a case to which s.422B of the Act applies. This means that the provisions set out in Division 4 of Part 7 of the Act are taken to be the exhaustive statement of the natural justice hearing rule (absent bias). There are a number of authorities that support that proposition (such as Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] to [67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] FCA 35 at [48]).

2. Bearing in mind these authorities, and looking at the material that has been put before the Court, I cannot see that the Tribunal failed to comply with the procedural code as set out in this relevant part of the Act.

3. Pursuant to s.425 of the Act, which is a part of Division 4, the Tribunal is obliged, unless certain circumstances are found to exist, to invite an applicant to attend a hearing before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal did send a letter of invitation to hearing to the relevant address provided by the applicant.

4. I also note the provisions of s.425A of the Act and the requirement that the letter of invitation to hearing be sent in a manner consistent with that section. The letter must be sent by one of the methods specified in s.441A of the Act and the period of notice provided must be at least the prescribed period. In this regard, I note s.425A(3) and s.441A(4) permits notice to be given to the applicant by prepaid post. Such notice must be despatched to the applicant’s last address for service provided to the Tribunal, or to the applicant’s last residential or business address.

5. The provisions of s.441C of the Act provide that the applicant is taken to have received the letter so despatched seven working days after the date of the letter, and the prescribed notice period for the purposes of s.425A of the Act are set out in reg.4.35D(b) of the Migration Regulations 1994 (Cth) (“the Regulations”).

6. The material before the Court shows that the Tribunal complied with all of the relevant statutory and regulatory requirements.  Importantly, in relation to the letter of invitation to the hearing, there is nothing in the material before the Court to show that at the relevant time the applicant had notified the Tribunal that he had moved from the address that he had already provided to it.  The Tribunal despatched the letter to the only address available to it for that purpose. 

7. The Tribunal does have the power, pursuant to s.426A of the Act, where a hearing invitation has been properly given under the Act, to proceed to make the decision. The Tribunal is under no further obligation to search papers lodged with it to discern any other means of communicating with the applicant before proceeding to making the decision (Minister for Immigration and Multicultural Affairs v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 at [39], per Spender, French and Cowdroy JJ).

8. In any event, I note that in the current case this would have been a fruitless exercise. The applicant had not given the Tribunal any other means by which he could be contacted (see CB 52). That is, he had not provided any telephone or mobile phone number. Nor had he appointed any authorised recipient to receive correspondence on his behalf (CB 52). Nor, for that matter, were there any other contact details provided by the applicant in his application for a protection visa (CB 3).

9. As I said, the Tribunal is not obliged to make any further enquiries as to why the applicant did not appear before it. I cannot see error in the way in which the Tribunal engaged and proceeded in its task. 

10. Section 424A of the Act, which also is contained in Division 4, obliges the Tribunal to invite the applicant to comment on information that it considers would be the reason, or part of the reason, for affirming the decision under review. This obligation, however, is not engaged in circumstances where the reason for the Tribunal’s decision was as a result of a lack of detail, lack of information, or lack of particulars before it (see SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 11, NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208).

11. In any event, I note that s.424A(3)(ba), which commenced on 29 June 2007, excludes the applicant’s information provided in the protection visa application from the operation of s.424A(1) (see SZLYD v Minister for Immigration and Citizenship [2008] FCA 1748 at [15] to [18]).

12. I cannot see that any other part of the procedural code is relevant to the circumstances of this case.

13. The statutory regime relevant to applications for visas of this type is found in s.65 and s.36(2) of the Act. In effect, this requires the Tribunal to reach a requisite level of satisfaction that the applicant meets the criteria for the grant of a protection visa. In essence, this means that the Tribunal must be satisfied that the applicant meets the definition of refugee as set out in Article 1A(2) of the United Nations Refugees Convention. If the Tribunal is unable to reach this requisite level of satisfaction, the protection visa must be refused (see SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to [16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208, Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

14. Any examination of the Tribunal’s decision record reveals that the reason that the Tribunal affirmed the delegate’s decision was that the applicant’s claims were unsubstantiated, lacking in detail, and inconsistent. These were findings of fact open to the Tribunal to make on what had been put before it (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64] to [69] per Tamberlin and Nicholson JJ).

15. I did consider whether the very detailed analysis of the applicant’s claims undertaken by the Tribunal, being more than one normally observes in matters of this type (that is, in circumstances where an applicant does not appear before the Tribunal at the hearing, even after being notified that the Tribunal was unable to be satisfied on the material that had been put before it), reveals error on its part.  However, I am satisfied, as Ms Warner Knight submitted, that an analysis of the factual claims, as scant as they are, and as much as they may be lacking in detail, does not prevent the Tribunal from assessing such claims in terms of making a subjective analysis as to their inherent plausibility. I therefore agree with Ms Warner Knight that no issue arises in that regard.

16. The applicant’s grounds in the application to this Court assert that he was not given an opportunity to appear at a hearing before the Tribunal, that he never received the letter of invitation, and that the letter was returned to the Tribunal as “unclaimed”.

17. As the Minister submits, this ground is misconceived. As I have already stated, the Tribunal discharged its statutory obligation in this regard. That is, it properly invited the applicant to attend a hearing.

18. In these circumstances, the Tribunal was entitled to proceed pursuant to s.426A to make a decision in this matter without taking any further action to enable the applicant to appear before it. That the letter of invitation to hearing was returned and received as undelivered by the Tribunal prior to making its decision does not assist the applicant. There is nothing before the Court to show that the applicant notified the Tribunal of any change of address at any time prior to the making of its decision. This was confirmed by the applicant himself in submissions today. Nor was there any other avenue available to the Tribunal of otherwise contacting the applicant.

19. The form by which the application to the Tribunal was made (CB 54) contains a declaration which, on the best evidence available to the Court, was signed by the applicant. This declaration includes a reference to an undertaking to inform the Tribunal of any change of address in Australia. It is not correct for the applicant to say that he was not given an opportunity to appear before the Tribunal. The Tribunal did all that it could in the circumstances to notify the applicant of the invitation to hearing and, importantly and relevantly, it complied with the relevant law in this regard.

20. The fact that the applicant did not receive the invitation does not denote any error, or indeed fault, on the part of the Tribunal. The circumstance that the letter was returned as “unclaimed” to the Tribunal does not assist the applicant. The first particular to the sole ground of the application , therefore, does not succeed.

1. At particular two the applicant asserts that he changed his address “during my RRT application”. This indeed may be the case, but there is no evidence before the Court that he told the Tribunal of this at the relevant and material times. That is, up until the time at which the Tribunal made its decision. I note that in his affidavit accompanying the application to the Court the applicant makes no reference to having told the Tribunal of any change of address during the review.  This is not surprising, given what the applicant told the Court today that, in fact, he had not taken any such step.

2. Putting the applicant’s statement to one side, and just drawing from the evidence available to the Court, the applicant did not approach the Tribunal with any new address. Noting what is set out in the Tribunal officer’s case note (CB 78) the applicant did not make mention of any new address until after the Tribunal’s decision was made.  By that time, the Tribunal was “functus officio”. That is, for the applicant’s benefit, that the review had been completed. It no longer had any power at that time to offer the applicant a hearing.

3. Unfortunately, the applicant did not add, and I say this with respect, anything of assistance to his claims before the Court today. The Court does understand the difficulties faced by those who are newly arrived in this country, particularly when they have little or no English skills, in making applications of this type before the Minister’s department and before the Tribunal.

4. But, nonetheless, even given these difficulties, it is for an applicant, and indeed it was for this applicant, to take responsibility for ensuring that the Tribunal was able to contact him during the course of the review, as indeed the overwhelming number of protection visa applicants who subsequently come to this Court appear to be able to do, even when they face language difficulties.

5. Not having a grasp of English does not, in my view, diminish the understanding that, when dealing with any organisation from whom you expect to receive some communication, giving it accurate and current information as to your last postal location is of critical importance.

6. As to the applicant’s presentation of his case before the Court today, again, while I understand the difficulties faced by persons who are not conversant with the relevant law in Australia and, in addition, face language difficulties, I do note that the applicant did access the Court’s legal advice scheme and did receive advice, ultimately, from a lawyer on that panel. In particular, I draw from this that here was the opportunity for the applicant to have sought some assistance as to the putting of any evidence, or further material, before the Court that may have assisted his case.

7. This opportunity, of course, had been provided to the applicant at the first Court date in this matter. But, in spite of this, no further evidence of assistance to him has been provided to the Court. Although, in the circumstances as they unfolded before the Court today, it is not surprising that the applicant was unable to put any further evidence because it is clear that, on what he submitted, he did not notify the Tribunal of any change of address.

8. It must be said that it is difficult, therefore, to understand how the applicant can complain about the Tribunal’s actions, given that he was, to a very large extent, the instrument of the failure to properly advise the Tribunal of any change of address.  It is hard to understand what the applicant expected the Tribunal to do in these circumstances.

Conclusion

1. In all, therefore, I cannot discern jurisdictional error in what the Tribunal has done. The Tribunal complied with all its relevant statutory and regulatory obligations. On what was before it, it could not be satisfied that the applicant met the relevant statutory criterion for the grant of the visa. I cannot see error in how the Tribunal approached its task. For the applicant to succeed before this Court, the Court, would need to discern some jurisdictional error on the part of the Tribunal. In the absence of any such error, this application is dismissed.

Costs

1. It is appropriate, in my view, that an order for costs be made in the usual way in this matter. There is nothing before the Court to argue against the making of such an order. When given the opportunity to address the Court on this issue, the applicant said that he had nothing to say. As to the amount of $4,000, I note that this is an amount well within the amount that the Minister could have sought as set out in the relevant Schedule to the Rules of this Court. But, in any event, I find that the amount sought, given the work that has been done by the Minister’s solicitors in responding to this application, is a reasonable amount in all of the circumstances. I will make the order in that amount.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 18 June 2009