SZRNH v Minister for Immigration - [2012] FMCA 730

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRNH v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 730

MIGRATION – Review of decision of the Refugee Review Tribunal – whether the Refugee Review Tribunal complied with s.425 of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal properly exercised its discretion pursuant to s.426A of the Migration Act 1958 (Cth) – whether the Refugee Review Tribunal’s conclusions were open to it on the material before it – whether the decision of the Refugee Review Tribunal is affected by jurisdictional error.

Migration Act 1958 (Cth), ss.425, 425A, 426A, 441A

Applicant:

SZRNH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1179 of 2012

Judgment of:

Emmett FM

Hearing date:

20 August 2012

Date of Last Submission:

20 August 2012

Delivered at:

Sydney

Delivered on:

20 August 2012

REPRESENTATION

The applicant appeared by telephone with the assistance of a Punjabi interpreter.

Appearing for the Respondents:

Ms A Wain

Solicitors for the Respondents:

Minter Ellison

ORDERS

By consent, time be extended to the applicant to file an application seeking judicial review of a decision of the Refugee Review Tribunal, dated 13 April 2012, pursuant to s.477(2) of the Migration Act 1958 (Cth).
The proceeding before this Court, commenced by way of application filed on 31 May 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $3,000.

NOTE A: The bundle of relevant documents identified as ‘Court Book’ and filed on 25 June 2012 was tendered by the first respondent and marked Exhibit 1R.

NOTE B: The affidavit of Annick Clare Wain, affirmed and filed on 3 August 2012, was read by the first respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1179 of 2012

SZRNH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 13 April 2012.
On 22 June 2012, the applicant attended a directions hearing before a Registrar of this Court. On that occasion, the applicant confirmed that she wished to continue with her application, and was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 22 July 2012. The applicant was also directed to file and serve any evidence in support of her application, by way of affidavit, by 23 July 2012, and was directed to file and serve submissions in support of her application 14 days before the hearing.
The applicant elected to participate in the Court’s RRT Legal Advice Scheme and received free legal advice in accordance with that scheme on 17 July 2012.
In addition, at the directions hearing the applicant was provided with the contact details of legal services providers and translating and interpreting services in documents headed in her own language.
Twenty minutes before the hearing, the applicant informed the first respondent’s solicitors that she would be unable to attend the hearing today because she could not get public transport. However, the applicant was able to be reached on a mobile telephone number that the applicant had provided to the first respondent’s solicitors.
The applicant was able to be reached on the mobile telephone number provided by her. In the circumstances, the hearing proceeded this morning with the applicant having leave to appear by telephone with the assistance of a Punjabi interpreter.
The applicant confirmed that she had not filed any document in accordance with those directions, or otherwise, in support of her application.
The grounds of the applicant’s application are as follows:
“1. The Second Respondent committed jurisdictional error by failing to comply with mandatory provisions of the Act, being Division 4 of part 7 of the Act in particular ss525 and 426 A.
Particulars:
(a) The Applicant did not received the Second Respondent’s invitation to appear before the Tribunal until after the Tribunal had made its decision which is the subject of this appeal.
(b) The Tribunal decision was fundamentally influenced by not receiving from the applicant at hearing.”
The applicant was invited to say whatever she wished in support of the grounds of her application and in support of her application generally. I understand the reference to s.525 of the Act in the grounds above to be intended to be a reference to s.425 of the Migration Act 1958 (Cth) (“the Act”). I note that there is no s.525 in the Act.
The applicant’s grounds were unsupported by evidence or submissions. The only submission made by the applicant in support of her application is that she was unable to work and therefore had no money to pursue her application.
The application for review by the Tribunal of a decision by a delegate of the first respondent to refuse the applicant a protection visa, was lodged by the applicant on 6 December 2011. The applicant did not nominate any advisor or authorised recipient. However, she provided an address in Australia and requested that correspondence be sent to her at that address.
On 24 February 2012, the Tribunal wrote to the applicant informing her that it had considered the material before it but was unable to make a favourable decision on that information alone. The letter invited the applicant to appear before the Tribunal on 12 April 2012 at 10:00am and provided the location of where the hearing would be held and informed the applicant that she would have the assistance of a Punjabi interpreter. The letter invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in her case. The letter also informed the applicant that if she failed to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable her to appear before it.
The first respondent’s solicitor, Ms Wain, read an affidavit affirmed by her on 3 August 2012. That affidavit annexed a copy of a postal log pertaining to registered post item number 486125982016. That postal log discloses that the registered item with that number was received by the post office on 27 February 2012. I note that the letter addressed to the applicant dated 24 February 2012 is addressed to the only address provided by the applicant on her review application form and contains the registered post number 486125982016.
Pursuant to s.425 of the Act, the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review and must do so pursuant to s.425A of the Act.
Section 425A of the Act requires the invitation to the applicant to specify the notice of the day on which, and the time and place at which, the applicant is scheduled to appear, and must be given relevantly in accordance with s.441A of the Act.
The letter of invitation was dispatched by prepaid post on 27 February 2012. Pursuant to s.441A(4)(a) of the Act, the letter must be dispatched within three working days of the date of the letter. The letter must also be sent to the last address for service provided to the Tribunal by the applicant in connection with the review or the last residential address. I note that the letter is dated 24 February 2012 which was a Friday, and that 27 February 2012 was a Monday. In the circumstances, I am satisfied that the Tribunal’s letter of invitation, dated 24 February 2012, was sent in accordance with the statutory regime.
In the circumstances, pursuant to s.441C(4) of the Act the applicant is taken to have received that letter seven working days after 24 February 2012.
There was no appearance by the applicant at the scheduled hearing.
In the claims and evidence section of its decision the Tribunal noted that it had written to the applicant on 24 February 2012 inviting the applicant to give oral evidence and present arguments at a hearing on 12 April 2012. The Tribunal also noted that the applicant was advised in the letter that if she did not attend the hearing and a postponement was not granted that the Tribunal may make a decision in her case without further notice.
The Tribunal also noted that the letter was sent to the applicant’s residential address as notified in the review application, also being the address she identified for correspondence. The Tribunal noted that no response had been received to the invitation letter and that the applicant did not appear before the Tribunal on the day and at the time and place she was scheduled to appear.
The Tribunal also noted that it checked that the invitation had been sent to the applicant’s most recent address for correspondence and checked the Department’s movements database to confirm that the applicant was still in Australia.
The Tribunal then purported to exercise its discretion under s.426A of the Act to proceed to make its decision on the review without taking any further action to allow or enable the applicant to appear before it.
In the circumstances, as recounted above, that exercise of discretion was open to the Tribunal and there was no error by the Tribunal in proceeding to exercise its discretion in the manner that it did.
The Tribunal then summarised the applicant’s claims and the applicant’s further claims at the interview with the delegate of the first respondent that she had on 8 November 2011.
I note that in its decision, dated 16 November 2011, refusing the applicant’s refugee visa application, a delegate of the first respondent found the applicant’s evidence to be vague and inconsistent and, in relation to her wedding ceremony, to be vague and evasive. The delegate found the applicant’s claims to be internally contradictory which led the delegate to question the credibility of the applicant and the veracity of the claims made in relation to her protection visa application.
The delegate found that the fear of harm claimed by the applicant was private in nature and confined to her family and her ex-husband’s family in India. The delegate found there was no evidence the authorities in India would be complicit in the private harm which the applicant feared would be inflicted on her by her family and her ex-husband’s family.
The delegate was satisfied that there is effective and adequate state protection available to the applicant if she returned to India and that there was no evidence that the Indian government was unwilling and/or unable to provide effective state protection to the applicant or that the applicant would be denied or withheld such protection for a Convention related reason.
In its decision record, the Tribunal identified the matters of concern that it had arising out of the applicant’s material. The Tribunal was not satisfied that the information provided by the applicant was sufficient to demonstrate that she had in fact married without the consent of her family or that they have in fact disowned or wished to harm her.
Further, the Tribunal noted that the applicant had not provided any information which would demonstrate that any harm she might experience from the attitudes of Indian society in general would constitute serious harm amounting to persecution in her case.
On the information and material before it, the Tribunal was not satisfied that the applicant was without the support of her family and friends. The Tribunal noted that it would have used the opportunity at a hearing to discuss these issues with the applicant and would have given her an opportunity to explain the harm she claims to fear in India, and in what way that harm might engage the provisions of the Convention.
Ultimately, the Tribunal was not satisfied that the material before it that there is a real chance that the applicant would suffer serious harm in India for a Convention related reason.
The Tribunal concluded that it was not satisfied that the applicant has a well-founded fear of persecution for a Convention reason should she return to India now or in the reasonably foreseeable future.
Accordingly, The tribunal affirmed the decision under review.
The Tribunal’s findings and conclusions were open to it on the material and information before it and for the reasons it gave. Section 65(1) of the Act provides that if the Minister is not satisfied that the criteria for being a refugee is met, then the application for a refugee visa must be refused.
The grounds of the applicant’s application for a judicial review are that the Tribunal committed jurisdictional error by failing to comply with s.525 and s.426A of the Act. Those complaints are not made out for the reasons referred to above.
The fact that the applicant may or may not have received the second respondent’s invitation to appear at the hearing until after the Tribunal had made its decision, the subject of this appeal, does not demonstrate an error on the part of the Tribunal that goes to its jurisdiction. As stated above, the Tribunal complied with the statutory regime in sending the applicant an invitation to appear at the hearing. Upon the failure of the applicant to appear at the scheduled hearing, the Tribunal properly exercised its discretion under s.426A of the Act to decide to proceed to make a decision without taking any further steps to invite or enable the applicant to appear before it.
The complaint in the grounds of the application that the Tribunal’s decision was fundamentally influenced by not receiving evidence from the applicant at hearing does not by itself establish any error on the part of the Tribunal that goes to its jurisdiction. It was for the applicant to satisfy the Tribunal that she satisfied the criteria for being a refugee.
The concerns that led to the Tribunal’s lack of satisfaction were clearly expressed by it in its decision record and, as stated above in these reasons, were open to it for the reasons it gave.
Accordingly, the proceeding before this Court should be dismissed with costs on the basis that the Tribunal’s decision is not affected by jurisdictional error and, in those circumstances, this Court has no jurisdiction to interfere with that decision.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Emmett FM

Date: 29 August 2012