SZOQY v Minister for Immigration
[2010] FMCA 966
•9 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOQY v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 966 |
| MIGRATION – Review of Refugee Review Tribunal (“Tribunal”) decision – invitation to Tribunal hearing sent to address not identical to that advised to the Tribunal by the applicant – letter returned to sender – applicant did not appear at hearing – Tribunal made decision without hearing from the applicant – whether arguable case of jurisdictional error. |
| Migration Act 1958 (Cth), ss.425, 425A, 426A, 441A Federal Magistrates Court Rules 2001, r.44.12 |
| General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Agar v Hyde (2000) 201 CLR 552 SZOFE v Minister for Immigration & Citizenship (2010) 185 FCR 129 |
| 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: | 9 December 2010 |
| Date of Last Submission: | 9 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 9 December 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
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.
The applicant have leave to file an amended application on or before 31 December 2010.
The first respondent file any affidavits on which he will rely on or before 7 January 2011.
The applicant file any affidavits on which he will rely on or before 28 January 2011.
The parties file written outlines of submissions on or before 17 February 2011.
The matter be listed for hearing on 24 February 2011.
| 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
Introduction
The applicant is a citizen of India who arrived in Australia on 17 July 2009. On 24 February 2010 he lodged an application for a protection visa which was refused by a delegate of the first respondent (“Minister”) on 15 May 2010. He 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.
The matter is before the Court today for consideration of the applicant’s application that the respondents should show cause why relief should not be granted to the applicant.
At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Rules of the Court if the applicant does not have an arguable case against the respondents.
The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).
Background
The applicant’s application to the Tribunal was lodged on 4 June 2010. In the application form, he identified his address as “28 The Boulevarde Street, Lidcombe”.
On 22 June 2010 the Tribunal wrote to the applicant by registered post 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 letter stated that if the applicant did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on his case without further evidence.
The letter was addressed to the applicant at “28 The Boulevarde, Lidcombe” and was subsequently returned to the Tribunal. A copy of the envelope enclosing the letter is reproduced at page 66 of the Court Book (“CB”), which is exhibit A. I conclude that it is the relevant envelope because it bears the same registered post number as appears on the Tribunal’s copy of the letter reproduced at CB 59. The envelope was marked “Unclaimed.”
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 Migration Act 1958 (“Act”), the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.
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.
The applicant’s failure to attend the Tribunal hearing appears to have played a significant role in the Tribunal’s lack of satisfaction that he met the criteria for the grant of a protection visa.
Proceedings in this Court
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.
In his affidavit filed with his application on 1 October 2010 the applicant made additional allegations which are not necessary to consider at this stage.
The applicant said today that he had not received the Tribunal’s letter. In the circumstances, it is necessary to consider whether it is arguable that the Tribunal erred by proceeding to a decision when the letter inviting the applicant to the Tribunal’s hearing was not addressed to precisely the same address as that appearing in his application form.
Section 425(1) provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review if it cannot make a decision favourable to the applicant on the papers.
Section 425A provides:
425A 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.
In relation to the despatch 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; 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.
Ms Hooper, who appeared for the Minister today, submitted that her researches indicated that there was, in fact, no The Boulevarde Street in Lidcombe and that there was only a street called The Boulevarde. The Court would need evidence before it could find this to be the case, but assuming this to be the situation, the real issue is nevertheless whether the apparent mis-addressing of the letter was a failure to observe a procedural requirement of the Act, namely s.441A(4), such that the applicant was denied an effective or adequate opportunity to attend the Tribunal hearing in the sense considered in SZOFE v Minister for Immigration & Citizenship (2010) 185 FCR 129 with the result that the s.425 invitation was not a real and meaningful one.
In this case, the invitation letter was not addressed to precisely the same address as that notified by the applicant in his review application lodged with the Tribunal. The letter was returned to sender. The applicant failed to attend the Tribunal hearing and the Tribunal proceeded to make its decision without allowing him a further opportunity to attend. In those circumstances, I find that the applicant has an arguable case that the Tribunal’s decision was affected by jurisdictional error by reason of the way that the s.425A letter was addressed.
It is not appropriate at this stage to consider the other matters raised by the applicant in his application or in his affidavit. Any matters additional to the question of whether the Tribunal erred by proceeding to a decision without hearing from the applicant can be considered at the further hearing which I propose to order.
Conclusion
As the applicant has made out an arguable case that the Tribunal’s decision was affected by a jurisdictional error, the matter will stand over pursuant to r.44.12(1)(b) to a further hearing on all the grounds raised by the applicant in his initiating application. His affidavit, filed on 1 October 2010, raises other issues, but the hearing will be restricted to matters appearing in the application or any amended application which the applicant may possibly file.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 16 December 2010