SZOYA v Minister for Immigration

[2011] FMCA 265

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOYA & ORS v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 265

MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming political persecution in India – principal applicant failing to attend Tribunal hearing and Tribunal proceeding to make a decision without an oral hearing – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.422B, 425, 425A, 426A, 441A

Minister for Immigration v Guo (1997) 191 CLR 559
MZXTA v Minister for Immigration [2008] FMCA 1201
MZXTA v Minister for Immigration [2009] 112 ALD 89
NAVX v Minister for Immigration [2004] FCAFC 287

First Applicant: SZOYA

Second Applicant: SZOYB

Third Applicant: SZOYC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 42 of 2011

Judgment of: Driver FM

Hearing date: 15 April 2011

Delivered at: Sydney

Delivered on: 15 April 2011

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Mr R Baird
Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,400.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 42 of 2011

SZOYA

First Applicant

SZOYB

Second Applicant

SZOYC

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 15 December 2010.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants a protection visa.  There are three applicants, the second and third applicants are family members of the first applicant.  Any references in this judgment to “the applicant” are references to him.  Essentially, the first applicant claims persecution in India by reasons of political and religious affiliation.  The second and third applicants claim as members of his family.  The following statement of background facts relating to the applicants’ claims and the decision of the Tribunal on them is derived from the Minister’s written submissions filed on 11 April 2011. 

2. On 21 November 2008, the first applicant entered Australia on a student visa.

3. On 8 July 2010, the applicants applied for a protection visa (court book “CB” at 1).

4. On 16 September 2010, the Department of Immigration and Citizenship (“the Department”) wrote to the first applicant inviting him to attend an interview with the delegate (CB at 46).  That interview was scheduled for 12 October 2010.  The applicants did not attend.

5. On 13 October 2010, the delegate wrote to the applicants notifying them that the delegate had refused his application for a protection visa (CB at 48).

6. On 8 November 2010, the applicants applied to the Tribunal for a review of the delegate's decision (CB at 58).

7. On 19 November 2010, the Tribunal wrote to the applicants inviting them to attend a hearing on 15 December 2010 (CB at 71).  The applicants did not attend that hearing.

8. On 15 December 2010, the Tribunal wrote to the applicants notifying them that it had affirmed the decision of the delegate to refuse their protection visas (CB at 78).

Review by the Tribunal

1. The applicants were invited to attend an interview before the delegate and were also invited to appear at a hearing before the Tribunal.  The applicants did not avail themselves of either of these opportunities to be heard.

2. The applicants did not provide any material in support of their application to the Tribunal.  The only information in support of the first applicant's claims is contained in the personal statement which accompanied his original application for a protection visa (CB at 39).

3. That personal statement is accurately summarised by the Tribunal at [26] of its reasons (CB at 82-3).

4. The Tribunal observed that it is not required uncritically to accept the claims of an applicant for a protection visa.  It remained for the applicant to satisfy the Tribunal that the applicant is a refugee (Minister for Immigration v Guo (1997) 191 CLR 559) (Tribunal's reasons at [34]; CB at 84).

5. The Tribunal observed that the personal statement provided by the first applicant lacked sufficient detail to determine whether or not the first applicant is a person to whom Australia owes protection obligations.  The Tribunal described his claims as ...vague, untested and stated in the most general of terms.  (Tribunal's reasons at [35]; CB at 84.)  As a consequence, the Tribunal held that it was not satisfied that the applicants fall within the Convention definition of a “refugee”.

The present application

1. These proceedings began with a show cause application filed on 12 January 2011.  The grounds of the application are:

   1.The statement of decision of the respondent No 2 is merely a reatriation [sic] of the claim. There has been no decision in accordance with Migration Act.

   2.[Decision] suffers from legal ambiguity.

   3.There has been gross irregularities occurred in legal framework.

2. The first applicant filed a document headed “Amended Application” on 16 March 2011.  It is plain on the face of that document, however, that it was intended to be an outline of written submissions, which the first applicant confirmed orally today.  I accepted that document as written submissions.  I also accepted as submissions an affidavit filed with the show cause application on 12 January 2011.  I received as evidence the court book filed on 10 February 2011. 

3. The first applicant made oral submissions which covered essentially the same ground as the submission set out in the amended application document.  The first applicant’s submissions go entirely to his fear of harm in India.  The circumstances in this case are that the first applicant has now availed himself of the opportunity he failed to take up to explain fully his circumstances to either the Minister’s delegate or the Tribunal because the first applicant did not attend the interview before the delegate and the hearing before the Tribunal to which he was invited.  The first applicant explained to me that he was advised by a friend, who the first applicant stressed is not a migration agent and who has not been paid any money, that it would be unwise to attend an oral hearing.  That was very poor advice, as I explained to the first applicant.  He does appear to me to be a sincere person and he regrets his decision not to attend the hearing before the Tribunal and the interview before the delegate.  He intends at this point to seek the opportunity to explain his circumstances more fully to the Minister’s Department with a view to seeking the intervention of the Minister.  That is entirely a matter for the first applicant and any view the Minister may take on such an approach is entirely a matter for him.

4. The Minister’s submissions deal adequately with the legal issues which might hypothetically arise in relation to this matter in the light of the applicants’ non-attendance at the Tribunal hearing. 

5. Quite simply, the Tribunal could not make a decision favourable to the applicants on the scant material before it.  Consequently, the applicants were invited to a hearing.  The applicants did not attend that hearing to elucidate or expand upon their claims.

6. In NAVX v Minister for Immigration [2004] FCAFC 287, the Full Court of the Federal Court (French, Emmett and Dowsett JJ) made the following remarks concerning circumstances where an applicant had failed to appear before the Tribunal (at [5]):

   Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution...  Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate.  When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.

7. The following principles bear upon circumstances where an applicant does not appear.

8. Section 422B of the Migration Act 1958 (Cth) (“the Migration Act”) provides that Division 4 of Part 7 of the Migration Act is taken to be an exhaustive statement of the natural justice hearing rule.

9. Section 425(1) of the Migration Act provides that the Tribunal must invite an applicant to appear before the Tribunal to give evidence relating to the issues arising in relation to the decision of the delegate that is under review where it is not satisfied that it can make a decision favourable to the applicant on the papers.

10. Section 425A(1) provides that where an applicant is invited to appear before the Tribunal, the applicant must be informed of the day, time and place at which the hearing is to take place.

11. On 19 November 2010, the Tribunal wrote to the applicants inviting the applicants to attend an interview in accordance with s.425 of the Migration Act. That letter clearly states the date, time and place for the hearing in accordance with s.425A(1) of the Migration Act.

12. Section 425A(2) provides that the invitation must be given to the applicant by one of the methods specified in s.441A of the Migration Act.

13. Section 441A(4) provides that one method by which the Tribunal may provide an applicant with the notice is by dating the document and dispatching it within three working days by prepaid post to the last address for service provided to the Tribunal by the applicant. This was fulfilled as the letter dated 19 November 2010 was dispatched on the same day (CB at 71).

14. Section 425A(3) provides that the period of notice given to the applicant must be at least the prescribed period.

15. Regulation 4.35D of the Migration Regulations1994 (Cth) (Regulations) provides that the prescribed period is 14 days after receipt of the notice.

16. Section 441C(4) provides that where the Tribunal gives a document to a person by the method specified in s.441A(4), then the recipient is deemed to have received the document seven working days after the date of the document.

17. Thus, the invitation from the Tribunal was deemed to be received seven working days from the date of the document, being 19 November 2010.  That date is 30 November 2010.  The prescribed period of 14 days would then commence on 1 December and expire on 14 December 2010.  Given that the hearing was to occur on 15 December 2010, the statutory minimum period within which the applicants were required to have received the invitation was satisfied.

18. Moreover, the letter was sent by registered post and was addressed to the applicants at the address nominated in their Application for Review to the Tribunal lodged on 8 November 2010.  The letter was not returned, and the first applicant has identified the same address as his address for service in his application to the Court.

19. Section 425A(4) provides that the notice sent to the applicant must contain a statement of the effect of s.426A.

20. Section 426A of the Migration Act provides that where an applicant is invited to appear before the Tribunal, and does not do so, the Tribunal may make a decision on the review without taking any further action to enable the applicant to appear before it. This has been satisfied by the letter dated 19 November 2010, which provides, relevantly:

    Please note that if you fail to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.

21. Section 426A provides the Tribunal with a discretion. This discretion has been described as a wide one (see MZXTA v Minister for Immigration [2008] FMCA 1201 at [71], and affirmed on appeal to the Federal Court in Australia in MZXTA v Minister for Immigration [2009] 112 ALD 89).

22. The requirements of Division 4 of Part 7 of the Migration Act were complied with by the Tribunal. The Tribunal in these circumstances had the discretion to determine the applicants’ application without giving the applicant a further opportunity to be heard. This is a wide discretion. In proceeding to make a decision in the circumstances, the Tribunal did not commit any jurisdictional error.

23. I have also considered whether any issue of fraud might be available to the applicants in this case.  I do not think that there is any arguable case of fraud on the applicants or the Tribunal. 

24. This is a simple case of the first applicant consulting a friend who provided an opinion as to the value of the first applicant participating in an oral hearing.  The first applicant made his own decision not to attend the delegate’s interview and the Tribunal hearing.  He was aware of both opportunities and unfortunately exercised poor judgement.

25. I find that the first applicant has not advanced an arguable case of jurisdictional error by the Tribunal. Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

26. The application having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the sum of $2,400.  The first applicant did not wish to be heard on costs.  The amount sought by the Minister is approximately $500 below scale and represents approximately 75 per cent of the Minister’s actual costs.  I am satisfied that the costs sought have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis.  I will order that the first and second applicants pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,400.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  19 April 2011