SZQNY v Minister for Immigration
[2011] FMCA 995
•15 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQNY v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 995 |
| MIGRATION – Applicant for protection visa fails to attend hearing before Refugee Review Tribunal to which she is invited – alleged jurisdictional error in relation to Tribunal’s decision to affirm delegate’s decision – application refused. |
| Migration Act 1958 (Cth), ss.425, 441, 474, 476 & 477 |
| Craig v The State of South Australia [1995] HCA 58 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 |
| Applicant: | SZQNY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1821 of 2011 |
| Judgment of: | Lindsay FM |
| Hearing date: | 30 November 2011 |
| Date of Last Submission: | 30 November 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 15 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Counsel for the Respondents: | Ms Shepherd |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Pursuant to s.477(2) of the Migration Act1958 the time for the applicant to file her application for review is extended so as to have permitted the filing of the application on 19 August 2011.
The application for review is refused.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
SYG 1821 of 2011
| SZQNY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
This is an application pursuant to s.476 of the Migration Act 1958 (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).
The application was lodged one day out of time. The respondents did not object to me extending the time for the filing of the application so as to enable it to have been filed on 19 August 2011 and I will so order.
The Tribunal upheld the decision of the delegate of the Minister not to grant the applicant a protection visa.
In her application the only information the applicant provided to support her entitlement to a protection visa was the following information which appears at paragraph 42 of the application (CB 25):
My name is [X]. I am 26 years old. I came from Papua New Guinean. I am a member of the Anti-Papua New Guinean government group because the Papua New Guinean government is very corrupted and not functional well. I was arrested while a protest that we held in front of the government building. While in prison, many of the members of our group including me were tortured. Then, I was released.
After I was released, the government officer and local police always came to my home and ask for money. If I don’t give money to them, they will beat me.
I can’t live a life like that, so I escaped. I will be arrested if I return to Papua New Guinean. I want to apply for protection visa from Australian government.
The same material is then repeated at paragraphs 43, 44, 45 and 46.
No further information in relation to the applicant’s activities or her treatment by the government and police was provided.
When the application for review was made to the Tribunal no additional information was provided.
Unsurprisingly the Tribunal invited the applicant to appear before it (CB 75). The invitation letter was sent on 9 June 2011. It was sent to the address which was given as the address of the applicant when making her application for review to the Tribunal (CB 64).
It was returned to the Tribunal on 29 June 2011 marked unclaimed (CB 82).
The applicant did not attend to give evidence and no further information was provided to the Tribunal. The key finding of the Tribunal appears at [24]:
The claims before the Tribunal are lacking in essential detail. While the applicant stated that she had been arrested and tortured, there is no detail in her application in relation to when this incident occurred. The applicant was invited to appear before the Tribunal but did not do so. As a consequence, the Tribunal was unable to question her further leaving the veracity of her claims unclarified and the Tribunal’s questions unanswered. On the evidence before it, the Tribunal was not satisfied that the applicant has suffered persecution in the past, nor that she has a well-founded fear of persecution for reasons of race, religion, nationality, or because of her membership of a particular social group or political opinion if she returns to Papua new Guinea in the foreseeable future.
The application for review to this Court provides the following grounds:
1.The Refugee Review Tribunal failed to carry out its statutory duty.
2. The Tribunal failed to provide particulars of the information that was the reason for affirming.
3. The Tribunal failed to provide the applicant with an opportunity to comment on it.
None of the grounds are particularised in any way. The Tribunal was bound to indicate to the applicant following her failure to attend that it had insufficient particulars to be able to be satisfied that she was owed obligations under the Refugees Protocol. That was inevitable given the paucity of the information provided in the application and given the failure to attend to give evidence. The Tribunal has made this clear in its Reasons as the reason for affirming the decision of the delegate. The Reasons otherwise indicate a clear appreciation of its statutory duty to conduct the review.
The third ground might be taken to raise the issue of the non-receipt of the invitation to attend the hearing.
The Tribunal was obliged to invite the applicant to appear (s.425 of the Act).
Section 425A of the Act prescribes the method by which the applicant is to be given notice of the invitation to appear. The methods of notice are those specified in s.441A of the Act. The Tribunal dispatched the notice in accordance with s.441A(4) of the Act to the last address for service provided to the Tribunal by the applicant in connection with the review.
The decision of the Tribunal is a privative clause decision as described in s.474 of the Act.
A review application to this Court will only succeed if the applicant is able to establish a jurisdictional error in relation to the way the Tribunal dealt with the application. Jurisdictional error is a concept best explained in High Court decisions such as Craig v The State of South Australia [1995] HCA 58 and in the context of applications under the Migration Act in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476.
The Court record demonstrates that the applicant attended the directions hearing conducted by the Registrar of this Court in Adelaide on 4 October 2011. She attended with an interpreter in the language Pidgin-PNG. Among the orders made by the Registrar in her presence was an order listing the matter for hearing on 30 November 2011.
On that day and at that time the applicant did not attend before me. In accordance with my instructions my Deputy Associate called her name in the precincts of the Court. She did not answer.
I proceeded to deal with the application for review and heard the oral submissions made on behalf of the Minister.
For the foregoing Reasons I am satisfied that no error let alone an error going to jurisdiction attended the way that the Tribunal dealt with the application before it.
The application will be refused.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate:
Date: 14 December 2011
Correction
Paragraph 4 Line 4 – reference to Applicant’s name is deleted and replaced with “[X]”.
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