SZOYK v Minister for Immigration - [2011] FMCA 297

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOYK v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 297

MIGRATION – RRT decision – Malaysian applicant fearing persecution from ex-boyfriend and criminal associates – did not notify Tribunal of changed address – failed to attend Tribunal hearing – Tribunal not satisfied as to real chance of Convention related harm – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 426A

Kim v Minister for Immigration and Multicultural Affairs [2006] FCAFC 64
NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592
SZDPB v Minister for Immigration & Multicultural Affairs [2006] FCAFC 110
VNAA v Minister for Immigration (2004) 136 FCR 407

Applicant:

SZOYK

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 82 of 2011

Judgment of:

Smith FM

Hearing date:

21 April 2011

Delivered at:

Sydney

Delivered on:

21 April 2011

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondents:

Ms A Crittenden

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 82 of 2011

SZOYK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia as a visitor on 8 April 2010, and on

6 July 2010 she applied for a protection visa without apparent assistance. In her application she claimed to fear return to her country of nationality, Malaysia, because she had been threatened by a patient in the course of her nursing job in a clinic.
The applicant attended an interview with a delegate of the Minister on 29 September 2010. She gave him a further written statement, which referred to earlier events when a group of criminals associated with her boyfriend harassed and threatened her because the boyfriend thought that she had “informed to the police to arrest him”. Her written statement also referred to threats from a patient, and it appears that the applicant told the delegate that the patient was a member of her boyfriend’s criminal gang, and that she thought that the police would not protect her because they were under the influence of the gang.
The delegate made a decision refusing the visa application on

7 October 2010. The delegate said that there was no evidence that the harm which the applicant feared was related to a reason covered by the Refugees Convention.
The applicant appealed to the Tribunal, without apparent assistance, and gave an address at Lakemba as her residential address and address for sending correspondence. The Tribunal sent two letters to that address, addressed to the applicant. The first was an acknowledgment letter posted on 5 November 2010, and the second was an invitation to appear before the Tribunal on 21 December 2010. The hearing invitation has been reproduced in the court book and has the date

25 November 2010 and a registered post sticker. There is also evidence before me that a clerk within the Tribunal compiled an Australia Post lodgement receipt form in relation to that letter and others on 25 November 2010. The evidence therefore points towards the letter being actually posted on that day.
Both of the letters sent to the applicant at her nominated address were returned to the Tribunal by Australia Post marked ‘unclaimed’. The acknowledgement letter was returned on 30 November 2010, and the hearing invitation was returned to the Tribunal on 30 December 2010. However, before the latter date, the Tribunal has made a decision.
It did so on 21 December 2010, which was the day of its appointed hearing. The Tribunal affirmed the delegate’s decision.
In its statement of reasons, the Tribunal member noted that the applicant had been sent an invitation to a hearing in accordance with the formalities under s.425 of the Act and other sections of the Act and Migration Regulations, and that she did not appear, nor contact the Tribunal to explain her failure to attend. The Tribunal said:
Pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The Tribunal then discussed the claims made by the applicant, as shown on the file before it. It said that there was no evidence that, if the incidents occurred as claimed, they occurred by reason of one or more of the Convention grounds. It also considered whether there was evidence of a denial of state protection for a Convention reason, and found no evidence of that. It also observed that the applicant had not “provided the level of detail necessary to satisfactorily establish the relevant facts of her case”, due to her absence from the hearing.
For all those reasons, the Tribunal was not satisfied that there was a real chance that the applicant might suffer serious harm for a Convention reason if she returned to Malaysia, nor that she had a well founded fear of persecution for a Convention reason.
The Tribunal’s decision was posted to the applicant at the address that she had given the Tribunal, on or around 22 December 2010, and that envelope was also returned to the Tribunal.
On 12 January 2010, the applicant lodged with the Tribunal a change of contact details giving a new address. However, unfortunately that was lodged after the Tribunal had become functus officio in relation to the matter. It had no power to re-open the application for review.
The Tribunal did send the applicant another copy of its decision, and the applicant lodged an application in this Court on 19 January 2010, within the time provided under s.477 of the Migration Act.
The grounds of her application are as follows:
1.The Tribunal made an error not providing the applicant an opportunity to attend the hearing of the Tribunal.
2.The Tribunal constructively failed to assess the applicant’s claim.
3.The Tribunal made an error to attain the applicant into procedural fairness.
4.The Tribunal made an error not providing the information in refusing the application.
These have not been elaborated by any amended application, or written or oral submissions.
Essentially, the first three grounds appear to invite the Court to examine the procedures whereby the Tribunal proceeded to make a decision under s.426A(1) of the Migration Act, without taking further steps to notify the applicant of a hearing opportunity.
The applicant has not pointed to any factual or legal defect in relation to the preconditions to that power. I have taken into account, and accept, the written submission of the Minister’s representative, which explain how, prima facie, the statutory requirements were all satisfied.
I am not satisfied that the Tribunal lacked the power to proceed under s.426A(1), nor that its discretion to follow that course is shown to have miscarried in point of jurisdiction. It is well established that the Tribunal may exercise validly the power to complete its review under s.426A(1), even where the Court is satisfied that, in fact, the applicant did not receive a hearing invitation, whether because of his or her own fault or the fault of another person (see VNAA v Minister for Immigration (2004) 136 FCR 407 at [14]-[15], Kim v Minister for Immigration and Multicultural Affairs [2006] FCAFC 64, NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592, and SZDPB v Minister for Immigration & Multicultural Affairs [2006] FCAFC 110 at [17]).
The fourth ground of the application is misconceived, since the Tribunal’s decision on the merits of the applicant’s refugee claims addressed only the information given by the applicant herself to the Department and to the Tribunal. No obligation under s.424A(1) arose.
The applicant today invited the Court to “excuse” her failure to inform the Tribunal of her change of address, and she asked that I should send the matter back to the Tribunal to allow her to attend the hearing. Unfortunately, I have neither of these powers in circumstances where I am not satisfied that the Tribunal’s decision is affected by any jurisdictional error. I do not have power myself to address the applicant’s refugee claims, nor to address whether she should be given any permission to stay in Australia.
For the above reasons, I must dismiss her application today.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:

Date: 9 May 2010