SZQCQ v Minister for Immigration - [2011] FMCA 733

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQCQ v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 733

MIGRATION – Application to review decision of the Refugee Review Tribunal – period of notice required for rescheduled Tribunal hearing – no jurisdictional error.

Migration Act 1958 (Cth), ss.422B, 424A, 425A, 426A, 441A, 441C
Migration Regulations 1994 (Cth), reg.4.35D

Minister for Immigration and Multicultural and IndigenousAffairs v SZFML (2006) 154 FCR 572; [2006] FCAFC 152.
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZBZO vMinister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 494
SZDQO v Minister for Immigration and Multicultural and IndigenousAffairs (2005) 144 FCR 251; [2005] FCA 1026
SZEFM vMinister for Immigration and Multicultural and IndigenousAffairs [2006] FCA 78

Applicant:

SZQCQ

First Respondent:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 621 of 2011

Judgment of:

Barnes FM

Hearing date:

5 September 2011

Delivered at:

Sydney

Delivered on:

5 September 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 621 of 2011

SZQCQ

Applicant

And

MINISTER FOR IMMIGRATION AND 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 made on 7 March 2011. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of India, arrived in Australia in April 2009. He applied for a protection visa in June 2010. He claimed to be a follower of the Dera Sacha Sauda (the DSS) and to fear harm from anti-DSS organisations. He claimed he had been threatened by such organisations. He also claimed he had been injured in a clash between followers of the DSS and Sikh protestors in May of 2007, blamed for the death of a Sikh in those clashes and verbally threatened. He claimed that no action had been taken by the police and that if he were to return to India he would be killed or forced to change his religion.
The applicant was invited to, but did not attend, a Departmental interview. The delegate refused his application. The applicant sought review by the Tribunal. In his review application he provided one address as both his residential address and address for correspondence. He did not appoint an authorised recipient.
The Tribunal wrote to the applicant on 13 January 2011 inviting him to attend a Tribunal hearing on 14 February 2011. I am satisfied on the basis of the affidavit of Michelle Elizabeth Stone of 5 September 2011 that that hearing invitation letter was sent to the applicant by registered mail by letter posted on 13 January 2011.
The letter advised the applicant that the Tribunal could not make a favourable decision on the information before it, gave full details of the hearing and advised that if the applicant failed to attend the Tribunal hearing it may “make a decision without taking any further action to allow or enable [the applicant] to appear before it”.
The applicant completed a response to hearing invitation form in which he indicated that he would attend the Tribunal hearing.

It appears that on the same day the Tribunal received that response it also received a telephone call from the applicant. A Tribunal case note records that he phoned to advise he would “not be attending the hearing as he is unwell with sore knees” and “can’t sit for long periods” and that the doctor had “told him to rest”. The Tribunal officer asked the applicant to provide a medical certificate from the doctor, stating when he would be fit to attend a hearing. On the same day the applicant faxed to the Tribunal a letter stating he was unable to attend the hearing because he had problems in his left knee and it “pains too much” and he was unable to travel and do his occupation, that he was having treatment and had been advised to rest. He enclosed a medical certificate which stated that he was receiving medical treatment for the period 7 February 2011 to 21 February 2011 inclusive and would be unfit to continue his usual occupation and unfit to travel by car for long distances. I note in that respect that the Tribunal had invited him to attend a video conference hearing in Griffith, New South Wales. The medical certificate was accompanied by what appears to be a referral to a medical imaging entity to conduct a “knee-left CT arthrography” dated 7 February 2011. While this form includes a sticker with details for appointments, there are no details inserted on that form.
In any event, the Tribunal wrote to the applicant on 18 February 2011. I am satisfied on the basis of the affidavit of Ms Stone, affirmed on 24 May 2011 that that letter was also despatched on the date which it bears by prepaid post to the applicant at the address provided in his review application which was the last address for service he had provided to the Tribunal.
The letter dated 18 February 2011, headed “Request for Postponement” advised that the Tribunal had received the request for postponement, that the presiding member had agreed to the request and that the hearing had been rescheduled. It advised that the postponed date would be 7 March 2011. As with the first letter it advised that “The Tribunal will only change the hearing date for good reason. Please contact the Tribunal immediately if you are unable to attend the hearing on this date”. The letter continued to note that if the applicant did not attend the scheduled hearing “the Tribunal may make a decision without taking further action to allow or enable [him] to appear before it”.
According to its reasons for decision the Tribunal did not receive a response to this letter. The applicant did not attend the rescheduled hearing on 7 March 2011 and did not contact the Tribunal to explain his failure to attend. In those circumstances the Tribunal decided, pursuant to s.426A of the Migration Act 1958 (Cth) (the Act), to make its decision on the review without taking any further action to enable the applicant to appear before it.
In its reasons for decision the Tribunal stated that it had “significant problems with the applicant’s claims” which were expressed in “vague, general terms” and lacked “essential details, including dates, locations and events”.
The Tribunal gave a number of examples of aspects of the applicant’s claims which were lacking in detail or information and found that “Given the generality of his claims, without more information it is difficult to know what significance could be attached to his assertions”. It found that the applicant had not provided information which would enable it to be satisfied he had suffered persecution in the past, that his fear of facing persecution in the future was owing to a Convention ground or that his fear was well-founded. In view of the insufficient information and lack of detail in the claims, the Tribunal was not satisfied the applicant either had been persecuted for a Convention reason in the past or that there was a real chance he would be persecuted for a Convention reason in the reasonably foreseeable future. It was not satisfied on the material before it that he had a well-founded fear of persecution. It affirmed the decision of the delegate.
The applicant sought review by application filed in this court on 4 April 2011. He has not filed any written submissions, but was given the opportunity at the hearing to make oral submissions in relation to the grounds in his application. He did not address the grounds in his application and did not seem able to clarify the basis for those grounds. Rather he explained that unfortunately he could not attend the first scheduled Tribunal hearing because of pain in his knees, that he sent a medical certificate and that there was an adjournment, but that the next time he could not attend either because he had to go for other X-rays. The applicant confirmed that there was no date for such other X-rays in the material in the court book.
It is convenient to deal first with the issue of whether the Tribunal was entitled to proceed under s.426A of the Act to make a decision without taking further steps to enable the applicant to appear before it. While this was not raised as a ground in the applicant’s application, the submissions for the first respondent quite properly addressed this issue in some detail. As indicated, the applicant gave the Tribunal as an address in New South Wales his residential and postal address and did not nominate an authorised recipient.

The Tribunal’s original hearing invitation of 13 January 2011 and the subsequent rescheduling letter of 18 February 2011 were sent to the address provided and both advised the applicant of the time, date and location of the hearing (see s.425A(1) of the Act).
Both letters were sent to the applicant by prepaid post to his last address for service provided in connection with the review as required by s.425A(2) of the Act (see s.441A(4)). Both were sent on the day they were dated and hence each letter was sent within three days of its date. Each letter contained a statement as to the effect of s.426A of the Act as required by s.425A(4).
The letter of 13 January 2011 complied with the requirement of s.425A(3) of the Act, that when the Tribunal invites an applicant to the hearing she or he be given at least the prescribed period of notice and in the absence of the prescribed period, a reasonable period of notice. The applicable prescribed period of notice for the hearing invitation of 13 January 2011, was, under regulation 4.35D(b) of the Migration Regulations 1994 (Cth), 14 days from the date the applicant was deemed to have received the hearing invitation, that being seven working days after the date of the document (s.441C(4)(a) of the Act). Such period of notice was given to the applicant in the hearing invitation of 13 January 2011.
As set out above, the hearing was postponed and rescheduled at the request of the applicant. The period of notification given for the rescheduled hearing was less than 14 days. However there is authority that where a hearing is rescheduled the Tribunal is not required to provide the prescribed period of notice, but rather to provide a reasonable period. (See in particular the decision of Conti J, in SZDQO v Minister for Immigration and Multicultural and IndigenousAffairs (2005) 144 FCR 251; [2005] FCA 1026, SZBZO vMinister for Immigration and Multicultural and IndigenousAffairs [2006] FCA 494 per Jacobson J and the decision of the Full Court of the Federal Court to the same effect in Minister for Immigration and Multicultural and IndigenousAffairs v SZFML (2006) 154 FCR 572; [2006] FCAFC 152).
In SZMFL, while strictly speaking obiter as there was another basis for the decision, the Full Court of the Federal Court dealt with a situation where there had been an invitation to the hearing which gave the prescribed period and thereafter a period of notice for a rescheduled hearing which was less than 14 days. Relevantly, as the court pointed out at [79]:
…notification of a rescheduled hearing does not involve a fresh invitation for the purposes of s 425(1). But where the hearing is rescheduled, then it is implicit in the obligation imposed on the Tribunal under s.425A(1) that the Tribunal must give the applicant notice of the amended day on which, and time and place at which, the applicant is scheduled to appear.
The court referred to the view expressed in SZDQO that s.425A does not apply in such circumstances. There is nonetheless the question of natural justice, subject to the operation of s.422B. In SZDQO the rescheduling, as in this case, was done at the instigation of the applicant.
Reference was also made in SZFML to SZEFM vMinister for Immigration and Multicultural and IndigenousAffairs [2006] FCA 78 in which the hearing was rescheduled at the Tribunal’s own volition, in support of the proposition (at [82]) that:
Provided the notice of the rescheduling is reasonable there is no requirement, applicable to that procedure, for the application of the minimum prescribed period applicable to the notice required by s.425A.
The Full Court of the Federal Court in SZFML expressed that view that the approach taken in both SZDQO and SZEFM was correct. However, while the prescribed period would not apply to the notice given in the rescheduling letter of 18 February 2011 (at [82]):
…the Tribunal’s invitation…cannot be compromised by rescheduling the appointed hearing to another date on unreasonably short notice.
In this case the letter of 18 February 2011 advised of a postponed hearing on 7 March 2011. The first respondent conceded that the applicant would be taken to have received such invitation on 1 March 2011. This provided him with six days notice of the adjourned hearing date.
I agree with the submissions of the first respondent that in all the circumstances this was a reasonable period of notice of the rescheduling having regard to the time allowed, the fact that the medical certificate provided by the applicant in support of his request for a postponement only stated that he was unfit between 7 February 2011 and 21 February 2011 inclusive, and that there was no further information provided by the applicant to suggest any ongoing inability to attend a hearing. Further, the medical condition which he claimed to be suffering was a pain in his knees. There is no suggestion that the applicant was not in a position to respond to the Tribunal’s notice of rescheduling, particularly in circumstances where he had done so in relation to the original Tribunal hearing date. It was not unreasonable for the Tribunal to allow such period of notice. It gave the applicant sufficient opportunity to contact the Tribunal if there was any basis for a further postponement. There is no evidence before the court that the applicant made any further request for postponement or that he advised the Tribunal that he had an appointment for a scan on the day of the rescheduled hearing.
I am satisfied that the Tribunal complied with the requirements of the Migration Act and Regulations, in the manner in which it invited the applicant to a hearing and rescheduled the hearing.

No jurisdictional error has been established on that basis.
The first ground in the application is that the Tribunal member had “failed to honour his undertaking”. It states that the requirement to put information to an applicant is contained in s.424A of the Act (which is summarised) and continues that:
It is my case that the Tribunal ignore its undertaking to give [the applicant] an opportunity to make written submission about the inconsistencies in [his] evidence; therefore the Tribunal had erred by denying [him] procedural fairness in respect of that issues (sic).
The applicant was unable to assist with an explanation of this ground in his oral submissions today.
The Tribunal did not make any findings about inconsistencies in the applicant’s evidence. Rather, its concerns related to the vagueness, generality and lack of detail in his claims. Further, there is nothing in the material before the court to suggest that the Tribunal gave any undertaking of any kind whatsoever to the applicant as seems to be suggested by this ground. Nor is there anything in the material before the court to suggest that the Tribunal failed to comply with s.424A of the Act. In any event, insofar as it is intended to allege that the Tribunal was obliged to put inconsistencies in the applicant’s own evidence to him for comment, it is well established that inconsistencies in an applicant’s evidence do not constitute information, such as to enliven s.424A(1) of the Act (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18]). No failure to comply with s.424A or jurisdictional error on any other basis contended for in ground 1 is made out.
Ground two is that “despite not having attended the hearing it became imperative that before the Tribunal made up its mind to dismiss the application such information was required to be sent to [the applicant] to make comments” to comply with s.424A. This was said to have been decided by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24. This ground reiterates what is said in ground one insofar as it relies on s.424A of the Act. For the reasons discussed above it is not made out. While a s.424A invitation may be given at any time during the review the Tribunal is not under any obligation to put its provisional reasoning to an applicant for comment (see SZBYR at [18]).
The applicant also made a general claim in his affidavit that the Tribunal decision was unjust and was made without taking into account the full gravity of his circumstances and the consequences of the claim. This claim is not made out. The Tribunal considered the applicant’s claims, but was unable to be satisfied he met the criteria for the visa on the limited material before it in circumstances where the applicant had not attended the Tribunal hearing.

The Tribunal complied with its obligations under the Act and Regulations in relation to the invitation to the hearing, it has not been established that the Tribunal in some way denied the applicant procedural fairness. Nor has it been established that the Tribunal failed to consider the applicant’s claims.
No jurisdictional error is established on any of the bases contended for by the applicant and nor is any apparent on the material before the court. In these circumstances the application must be dismissed.
The applicant has been unsuccessful and there is nothing in the circumstances of this 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 in light of the nature of this and other similar matters.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 23 September 2011