SZOQY v Minister for Immigration

[2011] FMCA 120

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOQY v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 120

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – address on invitation to hearing slightly different from address for service notified by applicant to Tribunal – whether manner of addressing hearing invitation denied applicant a real and meaningful invitation to the Tribunal’s hearing – whether manner of addressing hearing invitation complied with s.441A(4)(c) – whether s.441C(4) operated to deem receipt of hearing invitation.

Migration Act 1958, ss.425, 425A, 426A, 441A, 441C, 474
Evidence Act 1995, s.160
Migration Regulations 1994, reg.4.35D
Federal Magistrates Court Rules 2001, rr.15.30, 15.31, 44.12

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZOQY v Minister for Immigration & Citizenship [2010] FMCA 966
SZOFE v Minister for Immigration & Citizenship (2010) 185 FCR 129
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553
Termijtelen v Van Arkel [1974] 1 NSWLR 525
Damberg v Damberg (2001) 52 NSWLR 492
Sainju v Minister for Immigration & Citizenship (2010) 185 FCR 86
Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123

Applicant: SZOQY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2139 of 2010

Judgment of: Cameron FM

Hearing date: 24 February 2011

Date of Last Submission: 24 February 2011

Delivered at: Sydney

Delivered on: 9 March 2011

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr D. Godwin

Solicitors for the Respondent: DLA Phillips Fox

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2139 of 2010

SZOQY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India where, he claims, he is a “Harijan”, a low caste Hindu.  He claims to fear persecution in India because of his political or social activism in support of better treatment for members of that caste.

2. After his arrival in Australia on 17 July 2009, the applicant lodged an application for a protection visa.  This was refused by a delegate of the first respondent (“Minister”) on 15 May 2010.  The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

3. In these judicial review proceedings, the Court’s 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 Act 1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed.

Background facts

1. In a statement attached to his protection visa application, the applicant claimed that he was a “Harijan” (or a “Dalit”), a low caste Hindu in India.  He claimed that Harijans in India are hated and are subject to discrimination by members of the upper caste.  He claimed that he organised rallies to protest against the treatment of the lower caste.  He claimed that, as a result, he was beaten, humiliated, had false cases lodged against him and was confined without lawful reason.

2. On 22 June 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 20 August 2010 to give oral evidence and present arguments.  The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on his case without further notice.  That letter was returned to the Tribunal on 16 July 2010 marked “unclaimed”.

3. The applicant did not appear before the Tribunal on the day and at the time he was scheduled to appear. In these 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.

4. The Tribunal found that it was not satisfied that the applicant was 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 this connection, the Tribunal noted that the applicant’s claims had been expressed in vague and general terms and that he had not provided essential details, such as dates, locations and events.  In view of what it considered to be insufficient information and lack of detail contained in his claims, the Tribunal was not satisfied that the applicant had suffered persecution for a Convention reason in the past or that there was a real chance that he would suffer such persecution in the reasonably foreseeable future.

Proceedings in this Court

1. This is the second occasion on which this matter has been before the Court.  On 9 December 2010 I ordered that the respondents show cause why an order for the relief claimed by the applicant in the application filed on 1 October 2010, or in any amended application, should not be made: see SZOQY v Minister for Immigration & Citizenship [2010] FMCA 966. No amended application has been filed.

2. The applicant pleaded the following grounds in his application:

   1.The decision of the RRT is a result of jurisdictional error.

   2.The RRT failed to see the country informations.

   3.The RRT did not took the evidence in view this is a legal error.

Jurisdictional error

1. The first ground of the application is unparticularised and so lacks substantive content.  However, one matter arising in relation to this generalised allegation of jurisdictional error is whether the Tribunal was entitled to proceed to make a decision without having conducted a hearing at which the applicant was present.

2. When the matter originally came before the Court on 9 December 2010 for a show cause hearing pursuant to r.44.12, it became apparent that the letter which the Tribunal had sent to the applicant inviting him to a hearing had been addressed to “28 The Boulevarde, Lidcombe” while the address for correspondence which the applicant had advised in his review application filed in the Tribunal specified his address to be “28 The Boulevarde Street, Lidcombe”. Section 425A of the Act permits the Tribunal to give documents to a person by post if they are sent by prepaid post to “the last address for service provided to the Tribunal by the recipient in connection with the review” or to “the last residential or business address provided to the Tribunal by the recipient in connection with the review”: s.441A(4)(c). The difference in the address appearing on the hearing invitation letter and the address which the applicant had advised in his application for review might have had no significance were it not for the fact that the letter was returned to the Tribunal and the applicant failed to attend at the hearing which the Tribunal had listed. This raised the possibility that the difference in addresses was one of substance with the result that the Tribunal’s failure to comply strictly with the requirements of s.425A denied the applicant his statutory right to receive a real and meaningful invitation to the Tribunal hearing: SZOFE v Minister for Immigration & Citizenship (2010) 185 FCR 129 at 146 [67]-[69]; Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at 561 [37].

3. However, such concerns have been addressed by the admissions which the applicant is deemed to have made following service upon him of a notice to admit facts and authenticity of documents (“NTAF”) dated 21 December 2010 and to which he conceded he had not responded. Based on the contents of the affidavit of Katherine Nicole Hooper affirmed 10 January 2011, it is to be presumed that the NTAF was served on the applicant on 28 December 2010: s.160(1) Evidence Act 1995. Ms Hooper’s affidavit demonstrates that, in any event, the applicant had received the NTAF by 4 January 2011. Rule 15.31 of the Court’s Rules provides that if a party does not dispute a fact in a notice to admit facts within fourteen days of the service of the notice, the party is taken to admit, for the purposes of that proceeding only, that fact. By reason of r.15.31, the applicant is deemed to have made the following admissions:

   1. That on and from 3 May 2010 until 1 October 2010 the residential address of [the applicant] … was 28 The Boulevarde, Lidcombe, New South Wales.

   2. That on and from 3 May 2010 until 1 October 2010 there was no roadway in the suburb of Lidcombe New South Wales titled “The Boulevarde Street”.

   3.That on 22 June 2010 Terry Smith an officer of the Refugee Review Tribunal, dispatched by registered post addressed to [the applicant], 28 The Boulevarde, Lidcombe, New South Wales, the document attached and marked “A” (ie CB 67-68).

   4.That on 23 June 2010 an employee or agent of Australia Post attended at 28 The Boulevarde, Lidcombe, New South Wales with an envelope containing the documents attached and marked “A” but nobody was at that address at the time of attendance.

   5.That on 23 June 2010 an employee or agent of Australia Post left a card at 28 The Boulevarde, Lidcombe advising that an item of mail for [the applicant] was available for collection from Lidcombe Post Office.

   6.That on 30 June 2010 an employee or agent of Australia Post left a card at 28 The Boulevarde, Lidcombe advising that an item of mail for [the applicant] was available for collection from Lidcombe Post Office.

   7.That between 23 June 2010 and 7 July 2010 nobody attended at Lidcombe Post Office to sign for and collect the envelope containing the document attached and marked “A”.

   8.That on 7 July 2010 an agent or employee of Australia Post delivered an envelope containing the document attached and marked “A” to GPO Box 1333 Sydney New South Wales 2001.

   9.That [SS] is a person who resided at 28 The Boulevarde, Lidcombe on and from 10 June 2010 until 23 September 2010.

   10.That on 8, 9, or 10 June 2010 an employee or agent of Australia Post attended at 28 The Boulevarde, Lidcombe, New South Wales with an envelope addressed to [the applicant], 28 The Boulevarde Street, Lidcombe, New South Wales, containing the document attached and marked “B” but nobody was 28 The Boulevarde Lidcombe at the time of their attendance (ie CB 58).

   11.That on 8, 9, or 10 June 2010 an employee or agent of Australia Post left a card at 28 The Boulevarde, Lidcombe advising that an item of mail for [the applicant] was available for collection from Lidcombe Post Office.

   12.That on 10 June 2010, at or about 11.53 am, [SS], on behalf of [the applicant], attended at Lidcombe Post office and signed for and collected an envelope addressed to [the applicant], 28 the Boulevarde Street, Lidcombe, containing the document annexed hereto and marked “B”.

   13.That on 24 or 27 September 2010 an employee or agent of Australia Post attended at 28 The Boulevarde, Lidcombe, New South Wales with an envelope addressed to [the applicant], 28 The Boulevarde, Lidcombe, New South Wales, containing the document attached and marked “C” but nobody was at 28 The Boulevarde Lidcombe at the time of their attendance (ie CB 87).

   14.That on 24 or 27 September 2010 an employee or agent of Australia Post left a card at 28 The Boulevarde, Lidcombe advising that an item of mail for [the applicant] was available for collection from Lidcombe Post Office.

   15.That on 27 September 2010, at about 4.28pm, [SS], on behalf of [the applicant], attended at Lidcombe Post office and signed for and collected an envelope addressed to [the applicant], 28 the Boulevarde Street [sic], Lidcombe, containing the document annexed hereto and marked “C”.

   16.That [SS] gave [the applicant] the envelopes containing the documents attached and marked “B” and “C” after he collected them from Lidcombe Post Office.

4. Annexure A to the NTAF is the Tribunal’s letter to the applicant dated 20 June 2010 inviting him to the hearing listed for 20 August 2010.  Annexure B is a letter from the Tribunal to the applicant dated

   
   

   7 June 2010 addressed to “28 The Boulevarde Street, Lidcombe” and Annexure C is a letter from the Tribunal to the applicant dated 23 September 2010 addressed to “28 The Boulevarde, Lidcombe”.

5. The matters set out in the NTAF are matters of fact and not of law. Further, as the applicant conceded at the hearing in this proceeding that the contentions in the NTAF were correct and that he had not disputed them, with the exception of the erroneous reference to “Street” in para.15 of the NTAF which contradicts para.13 and Annexure “C” to the NTAF, there is no reason to doubt the correctness of the facts which are deemed to have been admitted. Consequently, although the power provided by r.15.30 to give judgment based on admissions is a discretionary one and the Court is not obliged to act on a party’s admissions: Termijtelen v Van Arkel [1974] 1 NSWLR 525; Damberg v Damberg (2001) 52 NSWLR 492, with the exception of the erroneous reference to the address in para.15 of the NTAF, I am not of the view that I should disregard the facts which the NTAF contends and which have been admitted.

6. In this connection I conclude that the address to which the hearing invitation was sent was the applicant’s actual and correct address. Plainly, other correspondence was received by the applicant regardless of whether it was addressed to “28 The Boulevarde, Lidcombe” or “28 The Boulevarde Street, Lidcombe”. Given that conclusion, I find that addressing the hearing invitation in terms slightly different in detail to the address which the applicant had identified in his review application did not deny him his right to a real and meaningful invitation to appear before the Tribunal. Consequently, addressing the hearing invitation to the applicant’s actual and real address, rather than to the misstated one appearing in the review application form, was not a failure to comply with s.425A such as to amount to jurisdictional error on the Tribunal’s part.

7. Having determined that the manner in which the invitation was addressed did not vitiate the effectiveness of that invitation, it is necessary now to turn to whether the invitation was effectively given to the applicant pursuant to the Act.

8. Section 425(1) and (2) provide that if the Tribunal is unable, on the papers, to make a decision in favour of an applicant, it must invite that applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 425A provides in relation to that invitation:

   (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.

9. The applicant has admitted the contention in the NTAF that on

   
   

   22 June 2010 the Tribunal dispatched the hearing invitation to him by registered post and I find this to be the fact.

10. In relation to the dispatch of a s.425A notice, 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; …

11. 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.

12. In order that the deemed receipt which s.441C(4) provides may occur, it is necessary for a document, in this case the hearing invitation, to be dispatched in accordance with the requirements of s.441A(4). Although I have found that the failure to address the hearing invitation in terms identical to those appearing in the application for review did not amount to jurisdictional error in the context of ss.425 and 425A, that is a different question to whether that form of address satisfied the requirements of s.441A(4).

13. In this connection, it must recalled that the address notified by the applicant was incorrect because it contained a redundant word – “Street”. I accept the Minister’s submission that this error has no greater significance than if the applicant had misspelt “Boulevarde”. As the address “28 The Boulevarde Street, Lidcombe” did not exist but “28 The Boulevarde, Lidcombe” did and was the applicant’s actual address, it would be absurd to conclude that making a minor alteration to the advised address when addressing the hearing invitation, which had the effect that the address was correctly cited, led to the outcome that the Tribunal had not complied with s.441A(4). Although the combined purpose of the interlocking provisions of ss.441A and 441C is to permit delivery or service of documents to be deemed to have occurred even if that may not have occurred in fact, it can be inferred that another purpose of s.441A is to have the Tribunal serve documents at the address at which service is most likely to be effective. Indeed, that section is based on a presumption that the document has been sent to the address at which delivery is most likely to be effective, at least as far as the Tribunal is aware. As Jacobson J pointed out in Sainju v Minister for Immigration & Citizenship (2010) 185 FCR 86 at 93 [52], the assumption underlying provisions such as ss.441A and 441C is that the act taken by the Tribunal is sufficient to bring the document to the attention of its intended recipient, whether or not this has actually occurred.

14. A conclusion that the address on the applicant’s hearing invitation met the requirements of s.441A(4)(c), notwithstanding its slight deviation from the applicant’s expression of that address in his application to the Tribunal, would promote the purpose of s.441A. I conclude that the Tribunal’s substantial compliance with the terms of s.441A(4)(c) satisfied the requirements of that provision.

15. Additionally, by dispatching the hearing invitation on 22 June 2010 by prepaid post the Tribunal satisfied the other requirements of s.441A(4).

16. Because the Tribunal complied with s.441A(4), the effect of s.441C(4) is that the hearing invitation is taken to have been received by the applicant seven working days after the date which it bears, namely 1 July 2010.

1. When an applicant is invited to a Tribunal hearing, reg.4.35D of the Migration Regulations 1994 deals with the length of notice which an applicant is to receive of that forthcoming hearing.  It provides:

   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.

2. The s.425A letter invited the applicant to a hearing on 20 August 2010. The applicant was not in detention and so he had to receive notice of the Tribunal hearing no later than 12 August 2010. As already noted the letter is deemed to have been received on 1 July 2010. Consequently, the requirements of this regulation have been met.

3. Section 426A(1) 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.

4. 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 failed to see country information

1. In the second allegation made in his application the applicant said that the Tribunal “failed to see the country informations”.  The evidence does not disclose that the applicant provided any country information to the Tribunal for its consideration and it does not appear that country information came to be before the Tribunal in any other way, including as a result of its own inquiries.  As a consequence, there was no country information before the Tribunal for it to consider or to “see” and the fact that it did not do so does not indicate error on its part.

2. It may be that the applicant alleges that the Tribunal should have obtained country information relevant to his application by means of its own inquiries.  The Tribunal has power, but no general duty, to make such inquiries and although in some circumstances to fail to make an inquiry might amount to a failure to review: Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [25], no circumstances arose in this matter suggesting that proper conduct of the review required the Tribunal to seek out independent country information or to make inquiries in that connection.

Tribunal did not consider the evidence

1. The third allegation in the application states that the Tribunal did not take “the evidence in view” but the applicant did not particularise the evidence which he alleged the Tribunal had not considered.  Such evidence as the Tribunal had was contained in the protection visa application form submitted by the applicant to the Minister’s department and in the statement which accompanied it.  In paras.20-25 of its decision record the Tribunal summarised the information found in those documents.  It went on to consider that information in paras.32-35 of its decision.  Consequently, this allegation fails on the facts.

2. Were this ground to be interpreted as one alleging that the Tribunal failed to consider the claims which the applicant made, it must fail for the same reasons.  Such claims as the applicant made were set out in his protection visa application form and its accompanying statement and were considered by the Tribunal in paras.32-35 of its decision. Although the applicant’s claims were considered, the evidence which he had placed before the Tribunal in support of those claims did not satisfy it that he had a well-founded fear of persecution for a Convention reason.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate: 

Date:  9 March 2011