SZOUI v Minister for Immigration
[2011] FMCA 133
•28 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOUI v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 133 |
| MIGRATION – PRACTICE & PROCEDURE – Refugee Review Tribunal – application for adjournment – whether grounds of application have any, or any reasonable prospects of success – whether the decision of the Refugee review tribunal is affected by jurisdictional error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 65(1); 65(1)(b); 425; 425A ; 426A; 441A(4); 441C; 474 |
| Applicant: | SZOUI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2515 of 2010 |
| Judgment of: | Emmett FM |
| Hearing date: | 28 February 2011 |
| Date of Last Submission: | 28 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2011 |
REPRESENTATION
| The Applicant appeared in person, assisted by a Tamil interpreter |
| Counsel for the Respondents: | Mr Cleary |
| Solicitors for the Respondents: | Ms A. Totoeva (Clayton Utz Lawyers) |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2515 of 2010
| SZOUI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The applicant seeks an adjournment of today’s scheduled hearing on the basis that a lawyer, whom he instructed to give him advice in respect of his application for judicial review, has withdrawn his representation; and, that the applicant received the documents in relation to his application to this Court from his lawyer only on 26 February 2011. I note that 26 February was a Saturday, today being the following Monday.
The first respondent opposed the application for an adjournment this morning, on the basis that the Applicant has no, or no reasonable, prospects of success in respect of his application for judicial review to this Court of the Tribunal’s decision.
The applicant claims to be a citizen of India and of Chinna Pattinavar caste (“the Applicant”). The Applicant claims to fear harm in India from his wife’s family on the ground of his race.
On 21 December 2010, the Applicant’s lawyer filed a notice of intention to withdraw as a lawyer. On 25 February 2011, the Applicant’s lawyer filed a notice of withdrawal as a lawyer. The Applicant’s lawyer appeared before the Court this morning to obtain leave of the Court to withdraw as a lawyer. Leave was granted to Mr Rama to withdraw as the Applicant’s lawyer.
RECORDED : NOT TRANSCRIBED
Prior to leave being granted, Mr Rama filed a statutory declaration made by the Applicant, sworn 26 February 2011. The statutory declaration contained the following evidence:
1. I am the Applicant in the case number SYG2515/2010 at the Federal Magistrate Court.
2. I have moved to new address as above and was not in contact with Kalmath Lawyers since then to proceed with the matter.
3. I acknowledge receiving the following documents from Pathmanathan Rama of Kalmath Lawyers at Homebush on 26th February 2011.
a. Bundle of documents from Clayton UTZ in an envelope sealed.
b. Notice of Withdrawal to act and the Notice of intention to withdraw as solicitors.
4. Pathmanathan Rama also has informed me in December 2010 that Kalmath Lawyers will not be able to represent me on this matter.
5. I am having difficulty finding a Solicitor to represent me on the matter. I have approached the Legal Aid with regards to the matter and they informed me on the 25th February 2011 that they will not make representation on my case.
I accept that the Applicant has not had any of the documents relating to his application before this court, until last Saturday, 2 days ago.
RECORDED : NOT TRANSCRIBED
The Applicant informed the Court that he moved addresses some time in December 2010. He declared that he was not in contact with his lawyers since that date. However, this morning the Applicant has told the Court that he made two or three telephone attempts to contact his lawyer without success.
In considering whether the matter should be adjourned this morning to give the Applicant a further opportunity to prepare his application to this Court, I have particular regard to the utility in the Court making such an order.
The Applicant did not appear before the Tribunal. The Tribunal decided to proceed to make its decision without taking any further steps to allow or enable the Applicant to appear before it, pursuant to s.426A of the Act.
RECORDED : NOT TRANSCRIBED
The initiating application for judicial review of the Tribunal’s decision was filed on 19 November 2010. The grounds are as follows:
“1. The tribunal erred by failing to take into account relevant consideration:
Particulars:
a) The Tribunal erred by failing to consider and make proper enquiry with [the Applicant] regarding the Applicants case.
Rule of pleadings are all designed to ensure one side knows the case of the other side and has the opportunity to make formal answer to it. [The Applicant] is not given the opportunity to represent himself at the Tribunal hearing therefore rules about opening a case, about the Applicant going first, about calling evidence, and then closing the case is not fulfilled. Proceedings should be conducted so they are fair to all the parties expressed in the Latin Maxim audi alteram partem ‘let the other side be heard’
b) The Tribunal erred by failing to give consideration to formally conducted proper hearing
The tribunal failed there are important, indeed fundamental, rights where tribunals in all their forms are recognised as a human rights process tool. A sufficient starting point to demonstrate this is the Universal Declaration of Human Rights which states in the preamble:
Whereas it is essential, if man not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should ne protected by the rule of law.
c. The tribunal erred by not considering any evidence for the Applicants case
The Tribunal denied the Applicant procedural fairness by not giving [the Applicant] the opportunity to comment and establish relevant evidence on the matter. A decision- maker should take into account relevant considerations and extenuating circumstance, and ignore irrelevant consideration.
2. The tribunal failed to comply with the requirements of section 425 of the Act and thereby and further and / or in the alternative the Tribunal took into account irrelevant considerations:
(a) The tribunal made assumptions that the Applicant did not face serious harm under section 91R(1) without formally having the hearing conducted at the Tribunal.
The Tribunal failed to consider the following:
(b) Article 6 Universal Declaration of Human Rights everyone has the right to recognition everywhere as a person before the law.
(c) Article 7 Universal Declaration of Human Rights – Everyone is entitled without any discrimination to equal protection of the law.
(d) Article 8 Universal Declaration of Human Rights – Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights grounded by the constitution or by law.
(e) Article 10 Universal Declaration of Human Rights – Everyone is entitled in full equality to a fair hearing by an independent and impartial tribunal, in the determination of his rights and obligations. ”
Whilst it is difficult to discern precisely the nature of the complaints raised in the grounds of the application, they would appear to be complaints about the Tribunal’s decision to proceed to make its decision on the review application before it without taking any further steps to invite the Applicant to appear before it at a further time. I do not understand the grounds of the application to be raising any other error on the part of the Tribunal in its reasons and determination in respect of the review application before it.
In the circumstances, the issue before the Court is whether or not the Tribunal complied with the statutory regime in inviting the Applicant to come to a hearing in accordance with section 425 and section 425A of the Act.
In support of the first respondent’s opposition to the adjournment, the first respondent’s counsel, Mr Cleary, read the affidavit of Anastasia Totoeva, sworn 16 February 2011, and filed 17 February 2011 and tendered the bundle of documents filed on 16 December 2010, which were marked exhibit 1R.
Ms Totoeva’s affidavit annexed a registered post document identifying the name and address of the Applicant, and giving a registered post number. It is dated 20 September 2010. The letter of invitation from the Tribunal is dated 20 September 2010 and contains the same registered post mark as is on the annexure to Ms Totoeva’s affidavit.
The Applicant filed his application for review with the Tribunal on 30 August 2010. That application contained one address and one address only, that being, 44A John St, Pendle Hill.
The Applicant informed the Court this morning that he did not receive the Tribunal’s letter of 20 September 2010.
I explained to the Applicant that there is no evidence before this Court as to whether or not he had received that letter, or any explanation as to why he may not have received that letter. I explained to the Applicant that he had been directed to file and serve evidence, by way of affidavit, in support of his application to this Court, and no such evidence has been filed.
However, having regard to the information contained in the Applicant’s statutory declaration filed in Court this morning, namely, that his lawyer only provided him on Saturday with the documents in his case, I asked the Applicant whether or not he sought leave of the Court to give that evidence orally. The Applicant said he did wish to give that evidence orally, and was duly sworn.
The Applicant gave evidence that he received the Tribunal’s letter of acknowledgment of his review application, dated 30 August 2010, and addressed to the Applicant at the Pendle Hill address.
In cross-examination, the Applicant said that he also received the Tribunal’s letter, dated 27 October 2010, again sent to him at the Pendle Hill address, notifying him of the Tribunal’s decision.
However, he said that he did not receive the Tribunal’s letter dated 20 September 2010, being the invitation to appear before the Tribunal. He was unable to offer any explanation as to why he may not have received that letter. He simply stated that he did not.
Section 425 obliges the Tribunal to invite the Applicant to come to a hearing, to give evidence and present arguments relating to the issues arising in relation to the decision under review. In circumstances where the Tribunal is unable to make a favourable decision on the information before it, section 425 of the Migration Act requires the letter of invitation to contain certain information about the day, time, and place at which the Applicant is scheduled to appear, and requires that the notice be given to the Applicant in accordance with section 441A of the Act, and that the letter provide a period of notice, to be at least the prescribed period of notice.
The letter dated 20 September 2010, contains the information required by section 425A of the Act, in that it states the day, time and place at which the Applicant was scheduled to appear. It informs the Applicant that the Tribunal had considered the material before it, but was unable to make a favourable decision on the information alone, and it invites the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case on 26 October 2010. Section 425A of the Act provides that the Tribunal must give the applicant notice of the day, time place of the hearing. The period of the notice given by the Tribunal must be at least the prescribed period, which is prescribed by Regulation 4.35D to be 14 days after the day on which the notice is received by the applicant.
Section 441A(4) of the Act provides that a method of giving such a letter to the Applicant is by prepaid post, or other prepaid means, to the last address for service provided to the Tribunal by the recipient in connection with the review, or the last residential or business address provided to the Tribunal by the recipient in connection with the review.
I note, again, that the only address provided by the Applicant is the Pendle Hill address, and that is the address to which this invitation was sent.
Section 441A(4) also requires that the letter be dispatched within three days of the date of the document. The registered mail document annexed to Ms Totoeva’s affidavit makes clear that the letter was dispatched on 20 September 2010, that being the same date as the date of the letter and therefore within 3 days of the date of the letter of invitation as required by s.441A(4).
Section 441C of the Act states that if the Tribunal does give a document to a person in accordance with section 441A(4) of the Act, that person is taken to have received the document seven days after the date the document was dispatched from a place in Australia to an address in Australia. In those circumstances, the Applicant was deemed to have received the invitation seven working days after 20 September 2010, and the 14 day period commenced on that day to run. Plainly, that period is within the time provided in the letter, which provided for well in excess of the prescribed period of notice.
In the circumstances, the Tribunal complied with the statutory regime in inviting the Applicant to come to a hearing. The fact that the Applicant may not have received the letter does not demonstrate any error on the part of the Tribunal that would entitle the Applicant to the relief he seeks from this Court.
Section 426A of the Migration Act provides that if an Applicant is invited, in accordance with section 425, to appear before the Tribunal, and does not appear before the Tribunal 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.
The Tribunal, in its reasons, made clear that, in its view, the Applicant had been invited to attend a hearing in accordance with the statutory regime. The Tribunal noted that the invitation was, in fact, returned unclaimed to the Tribunal.
The Tribunal noted that prior to proceeding with its decision on 26 October 2010, the Tribunal attempted on 25 October 2010 several times to contact the Applicant on his mobile telephone number, but the calls were unanswered and went straight to the message bank.
In the circumstances, the Tribunal properly exercised its discretion under 426A of the Act, to proceed to make its decision on the review without taking any further action to enable the Applicant to appear before it.
In the circumstances, the Applicant’s application to this Court has no, or no reasonable, prospect of success. For those reasons, the Applicant’s application for an adjournment is refused.
The Applicant was offered an opportunity to say whatever he wished about the Tribunal’s decision, and made no relevant submission, other than to say he could not return to India.
The Tribunal’s decision record makes clear that the Tribunal considered the Applicant’s written claims, and listened to the audio recording of the departmental interview attended by the Applicant on 11 August 2010.
Ultimately, the Tribunal found there was insufficient information before it to satisfy it that the Applicant would face a real and serious harm if he was to return to India.
The Tribunal noted the matters of concern that he had about the Applicant’s account, and the fact that he had not provided any independent verification of his claims during the six months he had been living in Australia. The Tribunal accepted that a lack of independent substantiation for an Applicant’s claims does not, in itself, demonstrate that the claims are not to be believed. However, the Tribunal found that there were unexplained gaps in his account which it would have explored with the Applicant at a hearing, and would have provided him an opportunity to provide further details. The Tribunal noted it was not possible to do so, because he did not attend the hearing.
The Tribunal was not satisfied on the material before it that the Applicant had ever suffered harm in India for the reasons claimed. For that reason the Tribunal was not satisfied that the Applicant has a well-founded fear of persecution for a Convention related reason should he return to India now, or in the reasonably foreseeable future. The Tribunal was not satisfied that the Applicants is a person to whom Australia has protection obligations.
Those findings were open to the Tribunal on the evidence and material before it, and for the reasons it gave. It is for the Applicant to satisfy the Tribunal that he meets the criteria for being a refugee. Section 65(1)(b) of the Act mandates that, the decision-maker, in this case the Tribunal, is not so satisfied, that a protection visa must be refused.
In the circumstances, there is no jurisdictional error demonstrated in the Tribunal’s decision record. I note that the Applicant’s application does not suggest that there is any other error raised on the face of the Tribunal’s decision record, other than the failure to invite the Applicant to come to a hearing.
In the circumstances, the Tribunal’s decision is not affected by error, and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere with that decision, and these reasons form part of the reasons why the proceeding before this court should be dismissed with costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate:
Date: 8 March 2011
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