SZOVG v Minister for Immigration
[2011] FMCA 458
•10 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOVG v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 458 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.425A, 426A, 441A Migration Regulations 1994 (Cth), reg.4.35D |
| Applicant: | SZOVG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2626 of 2010 |
| Judgment of: | Barnes FM |
| Hearing date: | 10 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 10 June 2011 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $3,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2626 of 2010
| SZOVG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 31 October 2010. The Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, described by the Tribunal as a citizen of China (PRC) (Hong Kong Special Administrative Region), arrived in Australia in August 2009 and applied for a protection visa on 18 May 2010. In his protection visa application he claimed to fear persecution because he did not like the Communist Party and that he wanted Hong Kong to “belon[g] to England forever”.
The application was refused by the delegate of the first respondent who noted in the decision record that the applicant had been invited to, but did not attend, a Departmental interview. The delegate found that the applicant’s claims in his protection visa application were “vague and lacking in specific details to determine why [he was] at risk of harm” or to substantiate his claim that he was persecuted in Hong Kong, that his claims were not based on a Convention ground and that the harm feared did not amount to persecution.
The applicant sought review by the Tribunal by application lodged on 31 August 2010. In that application he provided a residential address in Eastwood and a different Sydney address for correspondence.
He did not provide any other contact details or nominate any authorised recipient or adviser.
By letter dated 22 September 2010 the Tribunal relevantly wrote to the applicant at the address provided for correspondence in the review application with a copy sent to his residential address inviting him to a Tribunal hearing on 29 October 2010. That letter advised the applicant that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. In addition to giving full details of the hearing it also advised that if the applicant failed to attend the scheduled hearing the Tribunal may make a decision without taking any further action to allow or enable the applicant to appear before it.
In its reasons for decision the Tribunal referred to the limited contact details the applicant had provided and the absence of telephone and facsimile contact numbers. It also recorded that its initial acknowledgement of receipt of the application sent to the Sydney address had been returned unclaimed and that it had sent the hearing invitation letter by registered post to the applicant’s mailing address and also to his residential address. The invitation letter addressed to the Eastwood address had been marked “unknown” and returned to sender, but the letter addressed to the applicant’s mailing address had not been returned to sender.
The Tribunal recorded that the applicant did not appear before it on the day, time and place scheduled for the hearing. In these circumstances pursuant to s.426A of the Migration Act 1958 (Cth) (the Act) the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
After referring to the law requiring the decision-maker to be satisfied that a person is a refugee, the Tribunal found that as the applicant did not attend the hearing “his claims could not be tested” by it and that it only had “information contained in the written material before it from which to make a determination”. It summarised the applicant’s claim that he did not like the Communist Party taking charge of Hong Kong and that he had been prosecuted by the Hong Kong authority because he did not like or hated the Communist Party as well as his claim that if he were to return to Hong Kong he feared he may be arrested, harmed and mistreated by the Hong Kong authority because he did not like the Community Party taking charge of Hong Kong.
The Tribunal found that there was “nothing to support these claims other than the applicant’s unsubstantiated assertions” and that insufficient particulars had been provided to establish whether he was claiming prosecution (which he referred to in his application) or persecution by the Hong Kong authority.
The Tribunal found there were insufficient particulars provided by the applicant for it to be satisfied that any events had occurred. It detailed its concerns in this respect, for example, as to the timing and nature of the claimed instances of prosecution or persecution, the nature of the actions and statements of the applicant that possibly indicated that he did not like the Communist Party taking charge of Hong Kong, that he wanted Hong Kong to belong to England forever or that he hated the Communist Party.
The Tribunal also found that there was an unanswered question as to the reason for the delay in making the application for a protection visa after the applicant’s arrival in Australia. In addition, because the applicant did not attend the hearing “it did not have the opportunity to assess his credibility”.
The Tribunal found accordingly that it could not be satisfied on the evidence before it that the applicant faced a real chance of persecution should he return to the PRC now or in the foreseeable future. As it was unable to be satisfied on the evidence before it that the applicant had a well-founded fear of persecution for a Convention reason it was not satisfied that the applicant was a refugee.
The applicant sought review by application filed in this court on 3 December 2010. The application contains three general and unparticularised grounds. No amended application or written submissions were filed. The applicant was given the opportunity today to make oral submissions.
The first ground is a generally expressed contention that the “Refugee Review Tribunal was affected by jurisdictional errors on a breach of its obligation”. In oral submissions the applicant claimed that he did not agree with the Tribunal decision. However insofar as that indicates a wish to seek merits review, merits review is not available in this court.
The second ground is that the “Tribunal failed to give the prescribed period of notice”. When given the opportunity to comment on this ground the applicant said that he was concerned about the period prior to the application. It is unclear what is meant by this as there is no issue as to whether the application by the applicant to the Tribunal was in time. On the contrary, the Tribunal’s jurisdiction was engaged as it had before it a valid application for review of the primary decision.
As submitted for the first respondent, it had jurisdiction to conduct a de novo merits review of the delegate’s decision, which it did. In so doing, the obligations in Division 4 of Part 7 of the Act were applicable. There is nothing in the material before the court to suggest that the Tribunal failed to comply with any of those obligations.
I will return to the particular issue of notice of the Tribunal hearing, but first note that there is nothing to establish that the Tribunal “ignored relevant consideration in making the decision” as contended in ground three. It is apparent from the material before the court that the Tribunal did not ignore any mandatorily relevant consideration in the sense of any integer of the applicant’s claims. Rather, it set out and considered those claims, but was unable on the limited material before it (given its queries and in circumstances where the applicant did not attend an oral hearing to address such concerns) to be satisfied of those claims.
Insofar as the applicant said that what he meant by the third ground was that the Tribunal ignored a consideration of personal freedom, again, that seeks impermissible merits review. The Tribunal did consider the applicant’s claims as made in his protection visa application.
Notwithstanding that it was not an issue that was raised by the applicant in oral submissions, the first respondent addressed the issue of whether or not the Tribunal met its notice obligations in respect of the invitation to a Tribunal hearing.
I am satisfied and accept the submissions of the first respondent that the Tribunal hearing invitation complied with the requirements of the Migration Act and the Migration Regulations 1994 (Cth) as to both its content and its dispatch.
As set out above, in his application for review the applicant provided the Tribunal with an Eastwood residential address, but asked that correspondence be sent to a separate specified Sydney address. The hearing invitation letter dated 22 September 2010 was sent to that address for correspondence and a courtesy copy was sent to the residential address. It advised the applicant of the time, date and location of the hearing and contained a statement as to the effect of s.426A of the Act.
I am satisfied on the basis of the affidavit of Katherine Nicole Hooper affirmed on 4 March 2011 that the hearing invitation letter was dispatched on the date which it bore and hence met the requirement of dispatch within three working days of its date and also that it was dispatched within s.441A(4) of the Act being sent by prepaid post to the applicant’s last address for service provided to the Tribunal in connection with the review (see ss.441A and 425A(2)). The hearing invitation gave the applicant a period in excess of the prescribed period of notice in inviting him to a hearing on 29 October 2010 (see s.425A(3) and reg.4.35D(b)).
In these circumstances no jurisdictional error is apparent in the Tribunal’s decision to proceed under s.426A of the Act to make a decision without taking any further action to enable the applicant to appear before it when he failed to attend the Tribunal hearing.
As no jurisdictional error has been established the application must be dismissed.
Before I make the orders I will hear submissions in relation to costs.
RECORDED : NOT TRANSCRIBED
There is nothing in the circumstances of the present case to warrant a departure from the normal principle that the unsuccessful applicant should meet the costs of the first respondent. The amount sought is appropriate.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Barnes FM
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