SZQHN v Minister for Immigration

[2012] FMCA 193

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQHN v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 193

MIGRATION – Review of decision of Refugee Review Tribunal – applicant denied invitation to appear before the Tribunal – non-appearance by the applicant at final hearing – no utility to adjourn final hearing – no merit to the applicant’s grounds for judicial review – application dismissed for reason of non-appearance.

Migration Act 1958 (Cth), ss.36, 65, 425, 425A, 426A
Federal Magistrates Court Rules2001 (Cth), r.13.03C

Abebe v The Commonwealth (1999) 197 CLR 510
S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283
WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171

Applicant: SZQHN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1135 of 2011

Judgment of: Emmett FM

Hearing date: 14 March 2012

Date of Last Submission: 14 March 2012

Delivered at: Sydney

Delivered on: 14 March 2012

REPRESENTATION

No appearance by or on behalf of the applicant

Appearing for the Respondents: Ian Temby

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The proceeding before this Court, commenced by way of application filed on 6 June 2011, is dismissed pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) by reason of the failure of the applicant to attend today’s hearing.

2. The applicant pay the costs of the first respondent fixed in the amount of $3,000.

3. The first respondent is directed to provide to the applicant forthwith, at the applicant’s address for service as provided in the notice of change of address for service filed in Court on 4 August 2011, a copy of these Orders together with a copy of Rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).

NOTE A: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).

NOTE B: A copy of a letter from the first respondent’s solicitor, dated 8 March 2012 and addressed to the applicant at the address for service as provided by the applicant in the notice of change of address for service filed in Court on 4 August 2011, is Exhibit 1R.

NOTE C: A letter dated 6 March 2012 and addressed to the applicant at the same address as in Exhibit 1R and enclosing a copy of the first respondent’s outline of submissions, for service, is Exhibit 2R.

NOTE D: The bundle of relevant documents identified as “the Court Book” and filed on 4 August 2011 was tendered by the first respondent and marked Exhibit 3R.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1135 of 2011

SZQHN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first respondent seeks an order pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) that the proceeding before this Court, commenced by way of application filed on 6 June 2011, be dismissed by reason of the applicant’s failure to appear at today’s scheduled hearing.

2. On 6 June 2011, the applicant filed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 9 May 2011. 

3. The first Court date was scheduled for 1 July 2011 at 11:00am.  However, on 30 June 2011, the applicant requested that Court date be adjourned because he was ill. That request was not opposed by the first respondent at the time and, accordingly, the matter was relisted for further directions on 5 July at 10:00am.

4. The applicant failed to appear at the scheduled directions hearing on 5 July 2011, which was conducted by a Registrar of this Court.  Despite the opposition by the first respondent, the matter was adjourned to 4 August at 10:00am for further directions. 

5. On 4 August 2011, the applicant appeared before me, with the assistance of a Mandarin interpreter. On that occasion, leave was given to the applicant to file and serve an amended application, giving complete particulars of each ground of review relied upon, together with any evidence, by way of affidavit, by 15 September 2011. The applicant was also directed to file and serve written submissions in support of the application, by 29 February 2012.  The applicant elected to participate in the Court’s RRT Legal Advice Scheme and later received free legal advice on 29 August 2011. The applicant was also provided at this directions hearing with the contact details of legal services providers and translating and interpreting services in documents headed in Mandarin. The matter was then listed for final hearing on 14 March 2012 at 10:15am. 

6. It is now 10:50am. The matter has been called outside on at least three occasions. There has been no communication received from the applicant by either the first respondent’s solicitors, the first respondent himself, or the Court.  The applicant has not filed any document in accordance with the directions made by me on 4 August 2011 or otherwise. 

7. On 6 March 2012, the first respondent wrote to the applicant enclosing a copy of the first respondent’s outline of submissions. On 8 March 2012, the first respondent wrote to the applicant confirming this morning’s hearing date and informing the applicant that if the applicant did not appear, the first respondent may seek to have the matter dismissed pursuant to r.13.03C(1)(c) of the Rules. Those letters are marked Exhibit 2R and Exhibit 1R respectively.

8. Both Exhibit 1R and Exhibit 2R were sent to the applicant at the address as identified in the Notice of Change of Address for Service, filed by the applicant in Court on 4 August 2011. 

9. In the circumstances, I am satisfied that the applicant was aware of today’s hearing and, for whatever reason, has chosen not to attend. 

10. In support of the application for dismissal this morning, the solicitor for the first respondent, Mr Temby, submitted that there was no utility in adjourning the matter. In support of that submission, Mr Temby tendered a bundle of documents identified as the “Court Book”, filed on 4 August 2011, and marked Exhibit 3R. Exhibit 3R contains, inter alia, the applicant’s application for review by the Tribunal of the decision made by a delegate of the first respondent and received by the Tribunal on 14 March 2011. The application identified an authorised recipient and provided an address and a facsimile contact number.

11. On 7 April 2011, the Tribunal faxed to the applicant’s authorised recipient, at the facsimile number provided on the application for review by the Tribunal, a letter of invitation dated 7 April 2011 addressed to the applicant. That letter informed the applicant that the Tribunal had considered the material before it, but was unable to make a favourable decision on that information alone, and invited the applicant to appear before the Tribunal on 6 May 2011 to give evidence and present arguments relating to the issues arising in his case. The letter informed the applicant 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.  The letter enclosed a Response to Hearing Invitation form and requested its completion and return to the Tribunal. 

12. On 12 April 2011, the Tribunal received the form indicating that the applicant would attend the hearing, but that his migration agent would not.

13. On 5 May 2011, the applicant’s migration agent wrote to the Tribunal informing it that the agent had received notification from the applicant on 5 May 2011 that the applicant would not be attending the hearing on 6 May 2011, despite his previous consent that he would attend. Consequently, the agent requested that the Tribunal make a decision on the basis of the information currently available.

14. The Tribunal’s decision record correctly identified the law relevant to its consideration as to whether or not the applicant had a fear of persecution for a Convention related reason, such that he was owed a protection visa. The Tribunal cited the applicant’s written claims in his protection visa application, those being the only claims made by the applicant. The Tribunal then noted that on 7 April 2011, it had sent a letter to the applicant’s authorised recipient, inviting the applicant to appear before it pursuant to s.425 of the Migration Act 1958 (Cth) (“the Act”). The Tribunal noted the applicant’s response, dated 12 April 2011, that the applicant would attend the hearing, and further referred to the letter from the applicant’s migration agent, dated 5 May 2011, that the applicant would not be attending, and that the applicant requested that the Tribunal make a decision on the basis of the information currently before it.

15. In the circumstances, the Tribunal was satisfied that the applicant had consented to the Tribunal deciding the review without the applicant appearing before it as contemplated by s.425(2)(b) of the Act.

16. Section 426A of the Act provides that if an applicant does not appear before the Tribunal on the day on which, or 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 enable the applicant to appear before it. A fair reading of the Tribunal’s decision record would suggest that it exercised that discretion in its decision to decide the review without taking any further step to enable the applicant to appear before it, for the reason that the applicant had invited the Tribunal to do so.

17. Under the heading “Findings and Reasons” in its decision record, the Tribunal summarised the applicant’s claims, but was ultimately not satisfied, on the basis of those claims alone, that the applicant satisfied the criteria for being a refugee under s.36 of the Act.

18. The grounds of review in the application filed on 6 June 2011 are as follows:

    “1. The applicant claims that the Tribunal’s decision was affected by jurisdictional error in failing to accept the applicant’s claimed religious activities in China.

    2. The applicant claims that the Tribunal failed to invite him to comment on information after he declined the hearing invitation.”

19. In relation to ground 1, the Tribunal was not obliged to accept the applicant’s claims.  It was for the applicant to satisfy the Tribunal that he met the criteria for being a refugee (see Abebe v The Commonwealth (1999) 197 CLR 510 at [187]). The applicant failed to do so and, in those circumstances, s.65 of the Act mandates that the applicant’s application for a protection visa must be refused.

20. Ground 2 asserts the Tribunal failed to invite the applicant to comment on information after he declined the hearing invitation. There are no particulars in support of the bare assertion as to what the applicant says was the information which the Tribunal was obliged to invite the applicant to comment upon. On the face of the decision record, it would appear that there was no obligation on the Tribunal to invite the applicant to comment on information. There does not appear to be any information on the face of the Tribunal’s decision record that would have triggered the Tribunal’s obligation under s.424A of the Act.

21. In any event, where the applicant declined the invitation to attend a hearing before the Tribunal, he is to be taken to have assumed the risk that inconsistencies, omissions or other unsatisfactory features of his documents would be noted by the Tribunal without his having an opportunity to explain or clarify them (see S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283 at [25]-[26]). The letter of invitation sent to the applicant informed the applicant that the Tribunal was unable to make a favourable decision based on that material alone. The applicant was given an opportunity to appear before the Tribunal and address any concerns it may have had about his claims. He cannot complain if his application is rejected because the Tribunal was not satisfied that he met the criteria for being a refugee when he had failed to take up that opportunity (see WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC at [46].

22. In the circumstances, whilst I do not make any final conclusion, no jurisdictional error is apparent on the face of the Tribunal’s decision record. In those circumstances, I am satisfied that there is no utility in providing a further opportunity to the applicant by way of an adjournment today. 

23. Accordingly, I am satisfied that the application made by the first respondent is appropriate and the proceeding, commenced by way of application filed on 6 June 2011, should be dismissed with costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date:  23 March 2012