SZOPV v Minister for Immigration

[2016] FCCA 182

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZOPV v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 182

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – procedural fairness – whether the applicant had notice of the date of the Tribunal hearing – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 426A, 476, 494C

AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383
SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235
SZTDX v Minister for Immigration and Border Protection [2014] FCA 515

Applicant: SZOPV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2504 of 2015

Judgment of: Judge Street

Hearing date: 4 February 2016

Date of Last Submission: 4 February 2016

Delivered at: Sydney

Delivered on: 4 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms E Warner-Knight
Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2504 of 2015

SZOPV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for the Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 11 August 2015 affirming the decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of India, and arrived in Australia on 11 October 2009 on a subclass 676 tourist visa.  The applicant lodged a valid application for protection on 23 November 2009, which was refused on 22 April 2010.  The applicant unsuccessfully sought a merits review of that decision which was unsuccessful.  On 13 September 2010 the applicant sought judicial review of that decision, which was dismissed on 24 March 2011.  The applicant then sought judicial review before the Full Court of the Federal Court of Australia, which was dismissed on 11 August 2011.  The applicant then made an application for special leave in the High Court of Australia on 30 August 2011, which was dismissed on 1 December 2011.

3. Consistent with the principles in SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235, the applicant lodged a fresh application for protection on the grounds of complementary protection under s.36(2)(aa) of the Migration Act 1958 on 18 February 2014.  The delegate refused to grant that application on 4 July 2014.  On 31 July 2014 the applicant applied for a review before the Tribunal and in that application for review identified his address for the purpose of receiving correspondence. 

4. The applicant was found to be a citizen of India and his claim for complementary protection was assessed against that country.  The applicant claimed protection on the basis that he had been falsely implicated in a number of criminal cases in India in retaliation for his involvement with the AVBP, a student wing of a political party, the RSS (Rashtriya Swayamsevak Sangh) during his student years from 1993 to 1995.  The applicant claimed he was witch-hunted by the government of his State and had to move 70 kilometres from his home town.  The applicant alleged that he was wrongly implicated by the Communist Party of India in the murder of a person and that he continued to be under threat of death and was hardly allowed to cohabit with his wife.

5. The Tribunal initially sent a letter dated 14 May 2015 for a proposed hearing to take place on 2 September 2015. That letter was sent to the applicant’s correct address. The Tribunal then rescheduled the hearing and sent a letter to the applicant on 10 July 2015 inviting the applicant to appear at a hearing to be held on 11 August 2015 at 10.30 am to give evidence and present arguments. It is clear the letter dated 10 July 2015 was sent to the correct address identified by the applicant for the receipt of correspondence, and as such the applicant was taken to have received that document pursuant to s.494C of the Act.

6. The applicant has put on no affidavit evidence, although it is clear the applicant alleges that he did not receive the letter dated 10 July 2015.  The applicant from the bar table has alleged that his phone was dead and that he did not receive the two SMS text messages sent by the Tribunal to the applicant’s telephone number identified in the application for review.

7. The Tribunal noted that the applicant had not made contact to advise that he could not attend the hearing and the Tribunal noted that in the letter that had been sent to the applicant on 10 July 2015 notice was given that the Tribunal might make a decision to proceed without further notice. It is clear from the evidence adduced that the Tribunal member sent two text messages to the applicant on 4 August 2015 and on 10 August 2015 reminding the applicant of the hearing date. It was in those circumstances the Tribunal gave consideration to s.426A of the Act and made its decision on the review without taking any further action to enable the applicant to appear before it.

8. The grounds of the application are as follows:

   1. The date for the interview wasn’t received by post or by mail. 

   2. The first interview was posted for Sept 2^nd and later changed by authorities to 11/Aug/2015 which wasn’t informed to me. 

9. In the circumstance of this case it was not unreasonable for the Tribunal to proceed to determine the review in circumstances where the applicant had failed to appear and in circumstances where the statutory regime had been complied with in terms of the sending of the letter of 10 July 2015 to the applicant’s correct address.  Evidence was adduced in relation to the posting of that letter.

10. The decision in AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383 is clearly distinguishable, given the sending of the text messages in the present case, quite apart from the other circumstances in relation to the history of the matter. I accept the first respondent’s submission that the exercise of the discretion by the Tribunal under s.426A of the Act in the present case is one consistent with the reasoning of Perry J in SZTDX v Minister for Immigration and Border Protection [2014] FCA 515. There was no denial of procedural fairness or unreasonableness in the Tribunal proceeding to determine the application for review in the circumstance of this case.

11. The grounds of the application assert that the applicant did not receive notification of the hearing date and referred to the change of the notified hearing date.  There was no suggestion by the applicant that he acted in some way on reliance upon the first notification and no affidavit evidence was put on in support of the assertions made that he had not received the correspondence or that he had not received the text messages.  From the bar table the applicant appeared to maintain that the correspondence had not been received and that his phone at the relevant time was dead because he was in financial difficulty, and he never received the text messages.

12. Even if the Court were inclined to accept those matters as true, they do not establish any denial of procedural fairness before the Tribunal or any unreasonableness in the decision to proceed with review under s.426A of the Act. I should note that I have considerable reservation as to whether or not the facts asserted from the bar table were true. In that regard a registrar of this Court made directions on 22 October 2015 providing the applicant with an opportunity to file an amended application, put on affidavits and put on submissions. No such documents were filed.

13. The applicant applied during the course of the hearing for an adjournment.  The applicant made reference to there being documents in India that he wished to obtain and in relation to his diabetic state and that he had not been able to afford a lawyer.  That adjournment was opposed by the first respondent. 

14. There was nothing said by the applicant to identify any basis upon which an adjournment could be said to be of any utility.  No notice had been given to the first respondent of any desire to seek an adjournment.  The adjournment was refused by reason of the above matters and in the circumstances where the Court was satisfied that an adjournment was of no utility and would only unnecessarily add to unrecoverable costs.

15. This is an applicant, whose history of other proceedings in the first application for protection, reveals that the applicant has undertaken the filing of court process before.  I do not accept that there is evidence before me to establish the fact that the applicant did not receive the letter or that he did not receive the text messages.  But for the reasons I have given, whether or not he did does not establish any jurisdictional error in the circumstances of this case.

16. The application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  8 February 2016