SZROE v Minister for Immigration - [2013] FMCA 135

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZROE v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 135

MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal breached s.424A of Migration Act 1958 – where applicant had several occasions to appear before Tribunal – where applicant provided no reason to Tribunal for eventual failure to attend – where agent unable to attend but provided opportunity to make further representations – whether Tribunal breached s.426A of Act – whether jurisdictional error.

Migration Act 1958 (Cth), ss.36(2)(a), (aa), 424A, 426A

NBBL v Minister for Immigration & Anor (2006) 152 FCR 592
SZFDE v Minister for Immigration & Anor [2007] HCA 35

Applicant:

SZROE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1293 of 2012

Judgment of:

Raphael FM

Hearing date:

21 February 2013

Date of Last Submission:

21 February 2013

Delivered at:

Sydney

Delivered on:

21 February 2013

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,100.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1293 of 2012

SZROE

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of India who arrived in Australia on a visitor’s visa in 2011. On 21 February 2011 she applied to the Department of Immigration for a protection (Class XA) visa. On 20 May 2011 a delegate of the Minister refused to grant a protection visa. On 9 June 2011 an application was sent by the applicant’s agent to the Tribunal seeking review of the delegate’s decision. On 12 September 2011 the Tribunal wrote to the applicant, through her agent, advising her that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to a hearing on 16 November 2011.
On 21 October 2011 the agent wrote to the Tribunal advising it that the agent was no longer acting for the applicant. The Tribunal wrote to her personally on 8 November 2011 advising that it had received information from the agent and requesting a new address for correspondence from her. On 14 November 2011 a second agent wrote to the Tribunal advising that he was acting on behalf of the applicant. He also submitted a medical certificate advising that the applicant was unfit, for medical reasons, between 13 and 18 November. The Tribunal acted upon that information and adjourned the hearing.
On 23 November 2011 the Tribunal wrote to the agent Mr “B” and informed him of a further date for hearing being 22 December 2011. The applicant completed a response to hearing invitation advising that she would attend but for reasons that are not explained, on 20 December 2011, the Tribunal telephoned the representative and advised that the hearing for 22 December had been cancelled. The applicant told me today that she attended at the Tribunal on the scheduled date.
On 12 January 2012 the Tribunal sent to the applicant, through her agent, a notice of a rescheduled hearing for 28 February 2012. On 28 February 2012 the agent sent a facsimile to the Tribunal advising that the applicant was ill and would not be able to attend. A second facsimile was sent on the same day which attached a medical certificate. The Tribunal postponed the hearing and on 6 March 2012 sent a further notice of hearing to the agent advising of a hearing on 18 April 2012. On 16 April 2012 the agent wrote to the Tribunal advising that he was not well and asked to reschedule the date. He sent some medical evidence. The Tribunal considered the request but on 17 April 2012 wrote to the applicant again, through the agent, advising her that:
“The Presiding Member has considered the request carefully but has decided not to postpone the hearing, in light of the multiple previous postponements. Your representative will be granted an opportunity to review the hearing record and will be granted two weeks to file written submissions and other documents as he sees fit.” [CB 233]
The letter continued:
“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 if you fail to attend the scheduled hearing,, the Tribunal may make a decision without taking any further action to allow or to enable you to appear before it.” [CB 233]
There appears in the Court Book from [CB 230 - 239] a series of emails and other forms of correspondence passing between the Tribunal and the agent advising that the hearing would take place. These are dated 17 April and indicate that messages were left for the agent as well as emails being sent.
The applicant did not attend the hearing on 18 April. On 19 April a facsimile was received from the agent advising that the agent was no longer acting for the applicant. The Tribunal wrote to the applicant on 19 April asking whether she wished to appoint another person as agent and asking for her confirmation of her address. On 23 April 2012 the applicant wrote to the Tribunal as follows:
“I am SRP of [address] like to inform that: My sexual preference is now naturally changed. Now I feel naturally heterosexual and so I am more attracted to men. This has been a natural change and not one that has been forced in any way. Naturally a relationship between me and male person named Mr DS has been built. Now I am in a married relationship with the abovementioned man Mr DS. I no longer claim to be lesbian. But I strongly express my fear of persecution in my home country because of my past homosexual life. My new address is [address given]. Please send all my correspondence to my new address.” [CB 246]
On 9 May 2012 the Tribunal determined to affirm the decision under review and sent a copy of the decision to the applicant at the address given on 11 May 2012. The Tribunal at [30] set out the details of the applicant’s dealings with the Tribunal as discussed in these reasons. In its findings and reasons commencing at [31] [CB 253] it noted that the applicant had not attended the hearing and that, in the circumstances, pursuant to s.426A of the Migration Act 1958 (Cth)[1] it had decided to make a decision without taking any further action to enable the applicant to appear before it. Section 426A of the Act is in the following form:
[1] “Act”
“Failure 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.”
The Tribunal noted at [33] the letter written to it by the applicant advising that she claimed to fear persecution in her home country because of her past homosexual life:
“[33]The applicant’s remaining claims are so brief and vague that the Tribunal is unable to establish the relevant facts.
[34]On the limited information before it, given the insufficient information and lack of detail in the applicant’s claims, the Tribunal is not satisfied there is a real chance that the applicant would face serious harm from government officials or members of the local populace in the future for any Convention reason, or that there is a real chance that there would be any systematic and discriminatory withholding of protection in India.
[36]The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.”
The Tribunal also considered whether there was any real risk that the applicant would suffer significant harm as defined in s.36(2)(a) of the Act and concluded that this would not occur and, therefore, the applicant was not a person to whom Australia owed what are now known as “complementary protection obligations” pursuant to s.36(2)(aa) of the Act.
On 14 June 2012 the applicant filed an application with this court seeking review of the Tribunal’s decision. There were three grounds of application. They were:
“1.The Refugee Review Tribunal was in breach of s424A of the Migration Act 1958;
2.The Tribunal failed to afford procedural fairness in the matter of the applicant.
3.The Tribunal did not afford natural justice to the applicant by not disclosing that the Tribunal was going to affirm the decision.”
The first ground of application cannot succeed because there was no information utilised by the Tribunal that fell within the provisions of s.424A of the Act. The second and third grounds of application were articulated by the applicant as a failure by the Tribunal to allow her to appear. In other words, the applicant was attacking the exercise of the Tribunal’s discretion under 426A. She told me in court today that she had also provided a medical certificate to the Tribunal for the last hearing date but that does not appear in the court book and she did not have a copy of it to show me. There is no evidence in the court book that the Tribunal member or his staff were given any indication that the applicant was also unwell and I propose to proceed on the basis that no certificate was provided.
Greenwood J considered the exercise of the Tribunal’s powers under s.426A in NBBL v Minister for Immigration & Anor (2006) 152 FCR 592. At [21] his Honour said:
“Although I accept that the power conferred upon the Tribunal cannot be exercised capriciously and must be exercised reasonably, the election to make a decision on the review is not, by itself, the expression of an unreasonable exercise of the power. It is expressly contemplated by the section.”
At [24] his Honour said:
“It seems to me that in conferring a power upon the Tribunal in terms of s 426A, the Parliament necessarily had regard to the character of the review process undertaken by the Tribunal. Whilst that process might be described as inquisitorial, the power to elect to make a decision on the review in the circumstances of the conjunction of events contained within s 426A(1)(a) and (b) was expressly conferred in the context of the scope and role of the Tribunal under the Act. Further, there is nothing in the material that suggests any basis for inferring or concluding that the Tribunal by electing to make a decision on the review took a speedy or peremptory course involving a failure to consider relevant material. In addition, although the power conferred by s 426A must not be exercised capriciously, there is a clear intention on the part of the legislature not couched in indirect references or equivocal considerations to empower the Tribunal to consider and decide upon the evidence and arguments grounding the review and thus make a decision on the review, should the appellant fail to appear having been afforded an opportunity to do so.”
It will be clear from the recitation of events contained in these reasons that the applicant had on several occasions an opportunity to appear before the Tribunal. It will also appear clear that the Tribunal acted fairly and reasonably in allowing two adjournments when the applicant was sick. On the final occasion, the applicant was not sick, so far as the Tribunal was aware, although the agent probably was. The Tribunal made it clear to the agent that even though he was unable to attend, the proceedings would continue, but that he would be granted 14 days in which to make further representations after being given a copy of the hearing record. This offer by the Tribunal was, to my mind, neither capricious nor unreasonable, but fair.
In those circumstances I am unable to see how the Tribunal would have fallen into jurisdictional error when it determined that it would decide the matter under s.426A in the absence of the applicant. The reasonableness of the Tribunal’s decision was confirmed when within one day of the original hearing the agent advised that he was no longer acting and within five days the applicant herself wrote to the Tribunal informing it that the major plank in her claim for protection had fallen away. The applicant would have been aware at that time that she had not attended the hearing, but she did not request the Tribunal to provide her with a hearing or make any other representations concerning the case.
She tells the court that this may have been due to a lack of communication between her and her agent but the authorities are quite clear that negligence on the part of an agent is not a basis for a claim for a failure of procedural fairness on the part of the Tribunal; SZFDE v Minister for Immigration & Anor [2007] HCA 35 at [53].
The application is dismissed. The applicant must pay the first respondent’s costs assessed in the sum of $4,100.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate:

Date: 1 March 2013