SZOHG v Minister for Immigration - [2010] FMCA 440

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOHG v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 440

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – applicant failed to attend Tribunal hearing – Tribunal proceeded to decision without hearing – whether this evidenced error – statutory procedure for inviting applicants to Tribunal hearings – deemed notification when procedure followed.

Migration Act 1958, ss.65, 415, 425, 425A, 426A, 441A, 441C, 474
Migration Regulations, reg.4.35D

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant:

SZOHG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 689 of 2010

Judgment of:

Cameron FM

Hearing date:

23 June 2010

Date of Last Submission:

23 June 2010

Delivered at:

Sydney

Delivered on:

23 June 2010

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $4,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 689 of 2010

SZOHG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Indonesia where, he claims, he was discriminated against because of his Chinese ethnicity.
The applicant claims to fear persecution in Indonesia by reason of his ethnicity.
After his arrival in Australia on 2 May 2009, the applicant lodged an application for a protection visa. The applicant’s application for a protection visa was refused by a delegate of the first respondent (“Minister”) on 4 December 2009. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.

Background facts

The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-5 of the Tribunal’s decision (Court Book (“CB”) pages 62–63). In his protection visa application form, the applicant claimed that he was of Indonesian Chinese ethnicity and had suffered discrimination from the local government and from locals in general on this account. He claimed that, were he to return to Indonesia, he risked being killed and would not be able get protection from the authorities.

The Tribunal’s decision and reasons

By letter dated 20 January 2010 the Tribunal wrote to the applicant to advise him that it had considered all the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing on 23 February 2010 to give oral evidence and present arguments. The applicant was advised that if he did not attend the hearing the Tribunal might make a decision on his application without further notice. The applicant neither responded to that letter nor appeared before the Tribunal on the day and at the time he was scheduled to appear. In the circumstances, and pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). In reaching this conclusion, the Tribunal noted that, apart from his unsubstantiated assertions, there was no material before it to support the applicant’s claims. In light of the insufficient particulars provided by the applicant, and given that the Tribunal did not have the opportunity to assess his credibility, it could not be satisfied on a number of issues which it had identified as requiring clarification or substantiation.

Proceedings in this Court

The grounds of the application commencing these proceedings were pleaded as follows:
1.The decision involved an error of law in that: there was no evidence or the other materials to justify the decision.
2.The Refugee Review Tribunal failed to provide me with an opportunity to comment upon my application.
3.I believe I am a person to whom Australia has protection obligations.

Decision without a hearing

Before considering the matters alleged in the application it is necessary to consider whether any error is disclosed by reason of the fact that the Tribunal proceeded to make its decision without a hearing. In this connection, certain aspects of the statutory regime under which the Tribunal operated must be considered.
Section 425(1) of the Act provides that the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review unless subs.(2) applies and the Tribunal considers that it can decide the review in the applicant’s favour on the basis of the material before it.
Section 425A provides:
Notice of invitation to appear
(1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4)The notice must contain a statement of the effect of section 426A.
The only evidence before the Court today concerning the dispatch of the Tribunal’s letter inviting the applicant to the Tribunal hearing is the Court Book, which is exhibit A, and the affidavit of Rohan John White sworn 18 May 2010. Page 50 of the Court Book shows that the s.425A letter addressed to the applicant at the address given by him in his application to the Tribunal was dated 20 January 2010. A copy of a registered post sticker displaying the number 559148793010 appears on the copy of that letter.
Annexed to Mr White’s affidavit is a copy of the Tribunal’s record of certain registered post postings on 21 January 2010. Relevantly, it records that a letter addressed to the applicant, at the address found on the letter of 20 January 2010 and with the registered post reference number 559148793010, was posted on that day. The copy letter at

CB 50 and the affidavit of Mr White satisfy me that the s.425A letter was sent to the applicant on 21 January 2010.
In relation to the dispatch of a s.425A letter, s.441A(4) provides:
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review; or
(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the member, Registrar or other officer.
By dispatching its s.425A letter on 21 January 2010 to the address given by the applicant in his application to the Tribunal, the Tribunal satisfied the requirements of s.441A(4).
Section 441C(4) provides:
Dispatch by prepaid post or by other prepaid means
(4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia – 7 working days (in the place of that address) after the date of the document; or
(b)in any other case – 21 days after the date of the document.
Because the Tribunal complied with s.441A(4), the notice is taken to have been received by the applicant seven working days after the date which it bears, namely 1 February 2010.
Regulation 4.35D of the Migration Regulations 1994 (“Regulations”) provides:
Prescribed periods — notice to appear before Tribunal (Act, s 425A)
For subsection 425A (3) of the Act, the prescribed period:
(a) if the applicant is a detainee — starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 7 days after the day on which the notice is received; or
(b) in any other case — starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received.
As I have said, the s.425A letter invited the applicant to a hearing on

23 February 2010. The applicant was not in detention and so he had to receive notice of the Tribunal hearing no later than 8 February 2010. As already noted, the letter is deemed to have been received on 1 February 2010. Consequently, the requirements of this regulation have been met.
Section 426A(1) of the Act provides:
(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal; and
(b) 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;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
There is no evidence before the Court to suggest that the Tribunal’s discretion whether or not to proceed to make its decision pursuant to s.426A(1) without a hearing miscarried. In particular, the s.425A letter – although returned to the Tribunal – was not received by the Tribunal until after it had given its decision. Further, as the Tribunal records in para.24 of its decision record, the applicant had not provided it with details of an authorised recipient, phone number, mobile phone number or fax number through which he might have been contacted, nor did he provide a residential address, merely an address for correspondence.
On a related issue, the applicant gave evidence today that, in fact, he was too ill to attend the hearing because he had a fever, was vomiting and was very weak. At the time he was living in Victoria, apparently doing field work on a farm. Although in response to early questions in cross-examination that he knew of the hearing date because he had received the Tribunal’s letter as it had been sent to a post office box and had been sent on by a friend, he retreated from this evidence when shown the letter reproduced at CB 50, the envelope reproduced at

CB 55 bearing a “return to sender” sticker and the copy of the original letter reproduced at CB 56 showing that it had been returned to the Tribunal. He said that the address on the letter was his elder brother’s and he could not say why his brother had not collected the letter. The applicant then went on to say that he had learnt of the hearing from receiving the Court Book which had been prepared for these proceedings.
In the circumstances, I reject the applicant’s initial evidence that he received the Tribunal’s s.425A letter. I find that in February 2010 he was unaware of the Tribunal hearing. This finding is significant given that the applicant was unable to identify with any precision when he had been unwell. The best he could say was that it was in mid-February 2010.
It should be noted that the applicant’s claim to have failed to attend the Tribunal hearing by reason of ill health was only made in response to a question or comment from the Court concerning his failure to attend that hearing. At that time, he had made no reference to his contemporaneous ignorance of the Tribunal’s invitation to the hearing, which might have been a more logical response given the facts of this matter.
It is clear that the real reason why the applicant did not attend the Tribunal’s hearing was because he did not know that it was on. However, that will be of no significance if he was, in fact, disabled from attending by reason of ill health. Given the shifts in the applicant’s evidence today, I doubt the truthfulness of his evidence concerning his claimed ill health. In the absence of corroborative evidence, of which there is none, I am unwilling to accept the applicant’s claims to have been disabled from attending the Tribunal hearing.
Moreover, even were I to be wrong in my assessment of the applicant’s credibility on this point, his evidence never went so far as to say that the days when he was sick included the Tribunal’s hearing day of 23 February 2010. At the time, he would have had no reason to consider 23 February 2010 as a date of any significance and no reason to remember his illness by reference to that date. His evidence is not sufficiently precise that I would find, even were I to accept that the applicant had been ill, that his illness coincided with the Tribunal’s hearing date.
In the circumstances, the Tribunal discharged its obligation to invite the applicant to the hearing and its decision to proceed to make a decision on the review without taking any further action to allow or enable the applicant to appear before it was not affected with error.

Tribunal’s decision generally

Turning to the Tribunal’s decision itself, it should be kept in mind that the s.425A letter was sent to the applicant because the Tribunal was unable to make a decision favourable to him on the evidence it had. It was for that reason that the applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case.
It must also be recalled that, pursuant to ss.65 and 415 of the Act, unless the Tribunal is satisfied that an applicant meets the criteria for the grant of a protection visa it must affirm the decision of the delegate to refuse the grant of that visa. In its decision, the Tribunal referred to particular issues which it would have wished to have clarified or explained. At paras.32, 33 and 34 of its decision it is said:
The applicant fears the local Indonesian police and some government officers. He fears that he will be killed if he returns to Indonesia because he is an ethnic Chinese Indonesian. The local government, and local people discriminated against him in Indonesia. His house was stolen three times by local Indonesians. After he graduated he could not find a job because of the discrimination. He cannot continue to live in Indonesia.
There is nothing to support these claims other than the applicant’s unsubstantiated assertions. There are insufficient particulars provided by the applicant to enable the Tribunal to be satisfied that these events occurred. There is a lack of detail, such as how was his house ‘stolen’. In what circumstances was his house stolen three times? Was it the same house? If it was, how did he get it back in the periods when it was no longer stolen? Further, what efforts did he make in order to gain employment? When did all these events take place? Why did it take the applicant over four months so apply for a Protection visa?
Furthermore, as the applicant did not attend a hearing before the Tribunal, it did not have the opportunity to assess his credibility.
Plainly, unless the Tribunal could have the applicant’s evidence and arguments on these matters, it could not be satisfied that he met the criteria for the grant of a protection visa. For this reason, the decision which the Tribunal reached was the only one open to it in the circumstances.

Applicant’s allegations

None of the matters raised in the pleading affect this conclusion. First, the allegation that there was no evidence or other materials to justify the Tribunal’s decision misses the point. It was the very absence of evidence supporting the applicant’s claimed entitlement to a protection visa which caused the Tribunal to lack the satisfaction necessary for it to order that the delegate’s decision be varied or reversed.
Secondly, the allegation that the Tribunal failed to provide the applicant with an opportunity to comment on his application has already been dealt with in these reasons. The applicant was invited to attend a hearing before the Tribunal and he did not attend. It does not matter that the letter was not actually received by the applicant because the Act provides a statutory code of procedure which deems the s.425A letter to have been received by him. The applicant’s entitlement to attend the Tribunal’s hearing was both provided and circumscribed by the provisions earlier referred to. No jurisdictional error is demonstrated by the fact that the Tribunal acted in accordance with these provisions.
The third ground of the application alleges that the applicant believes himself to be a person to whom Australia has protection obligations. In reviews of Tribunal decisions, the Court is not empowered to reconsider the Tribunal’s findings on the merits on an application for a protection visa. If the applicant invites the Court to do that, it must be stated that it cannot. If he invites the Court to undertake its own separate consideration of his visa application, it cannot do this either.

Conclusion

For all these reasons, the applicant has failed to show that the Tribunal’s decision is affected by jurisdictional error. As a consequence, the application must be dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 30 June 2010