SZQZP v Minister for Immigration
[2012] FMCA 943
•27 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQZP v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 943 |
| MIGRATION – Application to review decision of Refugee Review Tribunal where non-attendance at Tribunal hearing – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424A, 425, 425A, 426A, 441A, 441C, 477 |
| Applicant: | SZQZP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2986 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 27 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 27 September 2012 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2986 of 2011
| SZQZP |
Applicant
And
| MINISTER FOR IMMIGRATION & 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 dated 17 November 2011. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant is a citizen of the People’s Republic of China (PRC). She arrived in Australia in March 2011 and applied for protection in June 2011. She was invited to attend a Departmental interview. She did not do so. Her application was refused.
The applicant sought review by the Tribunal. She did not provide any further evidence to the Tribunal in support of her claims. In her application for review, the applicant provided a residential address in Hurstville, but asked for correspondence to be sent to a specified address in Sydney.
In her review application the applicant signed and dated a declaration undertaking to inform the Tribunal of changes to her personal circumstances. She acknowledged that if she changed her contact details and did not inform the Tribunal of her new address the Tribunal may proceed to make a decision on her case even if it could not contact her.
The Tribunal wrote to the applicant on 21 September 2011 at the address for correspondence provided in the application. It acknowledged receipt of the application. The applicant was again reminded that it was important to tell the Tribunal immediately if she changed her contact details.
On 12 October 2011 the Tribunal wrote to the applicant at the specified Sydney address inviting her to attend a hearing on 10 November 2011. That letter is marked with a registered post stamp and bears a notation that it was sent on 13 October 2011. No issue was taken by the applicant in that respect in these proceedings. In any event, included in the material before the court is an Australia Post document headed “Track Item” which indicates that an item bearing the registered post number of that letter arrived at the Haymarket Post Shop awaiting collection on 14 October 2011 and that it was delivered to a named person on 18 October 2011.
The applicant did not attend the Tribunal hearing scheduled for 10 November 2011. In its reasons for decision the Tribunal referred to the hearing invitation and to the fact that the applicant had been notified that if she did not attend and did not contact the Tribunal to seek a postponement, the Tribunal might make a decision on the case without further notice. The Tribunal recorded that no response was received and that the applicant did not appear at the hearing.
The Tribunal noted that it had sent the hearing invitation to the last address for service the applicant had provided to it and referred to evidence about the date of dispatch and the notification that it was collected on 18 October 2011.
The Tribunal had regard to the fact that after the scheduled hearing on 10 November 2011 it received a change of address form for the applicant from the Department of Immigration which had been lodged with the Department on 8 November 2011. A copy of that document appears in the Court Book. It records that it was signed by the applicant on 4 November 2011.
In these circumstances the Tribunal decided pursuant to s.426A of the Migration Act 1958 (Cth) to make a decision on the review without taking further action to enable the applicant to appear before it.
In its findings and reasons the Tribunal had regard to the fact that no additional information had been provided to the Tribunal beyond the Department’s file and the information given to the Department.
The Tribunal considered the applicant’s statement in connection with her protection visa application (a very generally expressed one-page document in which the applicant claimed to fear persecution by reason of her Christian beliefs).
The Tribunal recorded that the applicant claimed to have been a Christian from a very young age who regularly attended church with friends, that she received warnings from the local police and local government many times, that she was detained in August 2010 for three months and beaten, and that following her release she was under surveillance by local police. The applicant claimed she obtained a passport with the help of friends and bribery. She came to Australia on a tourist visa. It expired on 26 April 2011. Some two months later she applied for a protection visa.
The Tribunal found the applicant’s claims were “vague, general and lacking in detail”. It had regard to the absence of detail as to how she practised her faith, where and with whom she attended church gatherings and about aspects of her faith, as well as to the absence of evidence that she continued to practice her faith in China after the alleged detention. It also referred to the absence of detail as to what activities had led to the claimed warnings and about the circumstances of the applicant’s claimed arrest and detention. The Tribunal observed that there was no evidence of the applicant continuing to practise her faith in Australia.
On the limited information before it the Tribunal did not accept the applicant was a Christian involved in that faith in China or that she came to the attention of the authorities as a Christian. It was not satisfied that she had a well-founded fear of being persecuted for a Convention reason if she returned to China now or in the reasonably foreseeable future.
On 23 December 2011, one day outside the prescribed time limit in s.477(1) of the Migration Act, the applicant filed an application in this court seeking review of the Tribunal decision. At the directions hearing, with the consent of the first respondent, the time for filing the application was extended up to and including 23 December 2011 under s.477(2) of the Act.
The applicant has not filed any amended application or written submissions. She had nothing at all to say today either in support of her application or in reply to the first respondent’s submissions.
In her affidavit she merely claimed to have suffered persecution in China. This does not amount to a claim of jurisdictional error.
There is one ground in her application for review. It is that “[t]he Tribunal failed to carry out its statutory duty”. Particulars to this ground are that “[t]he only information before the Tribunal was that contained in the first Respondent’s file and that given to the Tribunal by the applicant” and that “[t]he Tribunal was required to particular (sic) of the information that was the reason, or part of the reason for affirming the decision” under s.424A of the Migration Act and to “explain why the information was relevant and provide the applicant with an opportunity to comment upon it”.
As submitted for the first respondent, this ground is misconceived. There was no information relied on by the Tribunal within s.424A(1) of the Migration Act. There is no evidence or suggestion that the applicant herself gave any information to the Tribunal. The only information referred to by the Tribunal was that provided by the applicant in support of her protection visa application. Such information is outside the s.424A(1) obligation by virtue of s.424A(3)(ba).
It has not been established that there was a failure by the Tribunal to comply with s.424A of the Act or otherwise a failure to carry out its statutory duty.
In submissions the first respondent quite properly addressed the possibility of any issue arising from the fact that the applicant failed to attend the scheduled Tribunal hearing and sent a notice of change of address to the Department (but not to the Tribunal) just prior to the hearing date. It appears that this notice, dated 4 November 2011 and received by the department on 8 November 2011, was forwarded to the Tribunal after the scheduled hearing on 10 November 2011.
What is in issue is whether it was open to the Tribunal to proceed as it did under s.426A of the Migration Act to make a decision on the review without taking further action to allow or enable the applicant to appear before it.
In this case the Tribunal invited the applicant to a hearing on 10 November 2011 by letter dated 12 October 2011 (see s.425A(3) of the Migration Act). The letter was sent by post to what was, at the date of the letter, the last notified address for service provided by the applicant to the Tribunal and clearly set out the date, time and place for the hearing (see s.425A(1) of the Act).
There is nothing to indicate that the letter in any way failed to comply with the requirements of an invitation to a hearing under s.425A of the Migration Act. It was given to the applicant in accordance with the requirements of s.441A of the Act, which includes dispatch within three working days by post to the last address for service provided to the Tribunal by the applicant (s.441A(4)). Notwithstanding that there is no evidence before the court of a dispatch record, there is a track item record which shows that it reached the Haymarket Post Shop on 14 October 2011. This clearly means that it must have been dispatched within three days of 12 October 2011.
Hence at the time of the invitation the applicant was invited to appear before the Tribunal in accordance with s.425 of the Migration Act. There is no suggestion that she notified either the Department or the Tribunal of any change of address prior to the date of that letter or the date on which she would be deemed to have received such letter in accordance with s.441C(4)(a) of the Act. Under s.441C(4)(a) she was deemed to have received the letter seven working days after the date of the document.
In these circumstances, as the applicant was invited to the Tribunal hearing and did not appear on the day, time and place it was scheduled, it was open to the Tribunal to make a decision on the review without taking further action to allow or enable her to appear before it.
It is the case that s.426A does not prevent the Tribunal from rescheduling an appearance or delaying a decision. However the applicant did not contact the Tribunal to request any such delay. Nor did she subsequently raise any issue about her failure to attend the hearing.
Notwithstanding that the applicant provided a change of address notification dated 4 November 2011 to the Department on 8 November 2011, given the time of the invitation to the hearing and its deemed receipt prior to the date of the change of address notification, it was open to the Tribunal to make a decision on the review without taking further action to enable the applicant to appear before it.
No jurisdictional error is apparent in the manner in which the Tribunal proceeded or in its decision. Accordingly the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. It is appropriate that she meet the costs of the first respondent. Having regard to the nature of this and other similar matters I consider a reasonable and appropriate amount is the sum of $5,000.
ORDERS DELIVERED
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 11 October 2012
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