SZROB v Minister for Immigration - [2012] FMCA 767

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZROB v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 767

MIGRATION – RRT decision – failure of applicant to attend Tribunal hearing – no arguable jurisdictional error shown – application dismissed at show-cause hearing.

Federal Magistrates Court Rules 2001 (Cth), r.44.12(1)(a)
Migration Act 1958 (Cth), ss.425, 425A, 426A, 426A(1), 477(1), 477(2)

Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC (2006) 150 FCR 439, [2006] FCAFC 73
NBBL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 152 FCR 592, [2006] FCA 1045

Applicant:

SZROB

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1284 of 2012

Judgment of:

Smith FM

Hearing date:

24 August 2012

Delivered at:

Sydney

Delivered on:

24 August 2012

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms M Stone

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The time for making the application provided by s.477(1) of the Migration Act 1958 (Cth) is extended up to and including 12 June 2012.
The application is dismissed under Rule 44.12(1)(a) on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1284 of 2012

SZROB

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia on a visitor’s visa in April 2011. On 18 November 2011, she applied for a protection visa. Her application indicated that she was a national of China and a citizen of Hong Kong. Her reasons for fearing to return to that country were given only in the following terms:
I own [sic: owe] a lot of money to somebody in HK and I do not have enough money to pay back. They threat to kill me if I do not pay back. (See attachment).
No more details were provided in or with the application form, and there was no attachment.
The applicant gave to the Department of Immigration a residential address for the receipt of letters, and a letter was sent to her at that address inviting her to attend an interview to be arranged by contacting the Department of Immigration. That letter was sent on or around 16 January 2012.
However, by 13 February 2012 no contact had been made, and the delegate made a decision to refuse the protection visa application on the ground that the applicant had shown no Convention ground for the harm she fears. That decision was plainly correct.
Notice of the decision was posted to the address given by the applicant, and must have been received by her, since on 14 March 2012 she lodged an application for review by the Tribunal. In her application, the applicant gave the same residential address, but requested that correspondence be sent to a post office box at Haymarket. The application was not supported by any more details or evidence of her claims for seeking protection in Australia.
The Tribunal sent an acknowledgement letter to that address, and also on 5 April 2012 an invitation to appear before the Tribunal at a hearing to be held on 4 May 2012. The letter informed the applicant that the Tribunal had been unable to make a favourable decision on the information provided. It said:
The Tribunal will only change this hearing date for good reason. Please contact the Tribunal immediately if you are unable to attend the hearing on this date. Please note that if you fail to attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.
The letter referred to an enclosed leaflet which the Court has seen on other occasions, although it is not reproduced in the Green Book, and which contains brief advice and contact details in a number of foreign languages.
No response was made by the applicant to the invitation, and there was no attendance at the scheduled hearing.
The Tribunal proceeded to make a decision on 4 May 2012. Inevitably, it affirmed the delegate’s decision on the ground that it could not be satisfied that the claim made in the protection visa amounted to persecution for a Convention reason.
The Tribunal’s notice of its decision was sent to the same post office box as had the previous correspondence. The Tribunal’s decision was undoubtedly received by the applicant, since she filed an application for review in this Court on 12 June 2012.
This was four days outside the 35 day time limit provided by s.477(1) of the Migration Act. However, the Minister has consented to an extension of time under s.477(2). In view of that consent, and somewhat hesitantly, I accept that it has become “necessary in the interests of the administration of justice” to extend time notwithstanding my adverse opinions about the merits of the matter.
In her application to the Court, the applicant presented the following three grounds:
1.The decision of the Refugee Review Tribunal is affected by jurisdictional error.
2.The Refugee Review Tribunal did not comply with its obligation in making of the decision.
3.The Refugee Review Tribunal did not put adverse information to the applicant for comment.
These are unparticularised, and I am unable to give them any substance at all.
The applicant has filed a document purporting to be an affidavit which bears her signature, but no jurat indicating that the contents of it were translated and received her approval. The applicant told me today that she did not read English. The ‘affidavit’ states:
1.I did not arrange interview invited by Department of Immigration and Citizenship because I did not understand the letter. I admit that I received the letter from the Department of Immigration and Citizenship. I was required to contact Immigration Officer Mr Scott Hay to arrange interview for my protection visa. I failed to do so because I did not understand the letter.
2.I was required by Refugee Review Tribunal to attend hearing of 4 May 2012. I did not attend the hearing because I was sick that morning. I felt headache that morning and I did not get up until noon.
The Minister did not take points in relation to the lack of verification of these assertions, and did not seek to cross‑examine the applicant. I shall therefore assume the truth of the statements.
However, in my opinion, even if they were properly verified and corroborated, they do not provide arguable grounds for setting aside the Tribunal’s decision.
The Tribunal was authorised by s.426A(1) as follows:
426AFailure of applicant to appear before Tribunal
(1)If the applicant:
(a)is invited under section 425 to appear before the Tribunal; and
(b)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 allow or enable the applicant to appear before it.
(2)This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
I am satisfied in the present case that the formalities in relation to the Tribunal’s invitation required by ss.425 and 425A and the relevant regulations were complied with. The applicant makes no contention otherwise. The Tribunal therefore had the power under s.426A(1) which it exercised, and I can detect no jurisdictional error which might affect that decision.
It is well established that compliance with s.425A exhausts the Tribunal’s obligations in relation to the affording of a hearing provided under s.425, regardless of the reasons subsequently shown to the Court for the absence of the applicant (see Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC (2006) 150 FCR 439, [2006] FCAFC 73 at [39], and NBBL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 152 FCR 592, [2006] FCA 1045). One possible exception might be the existence of a fraud on the applicant and on the procedures of the Tribunal, but the applicant does not allege this.
The applicant today had little to say to the Court apart from repeating her explanation for her absence. However, in my opinion she has not raised an arguable case for the relief she claims in this proceeding.
I consider that in all the circumstances it is appropriate to dismiss the application pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 30 August 2012