SZSJM v Minister for Immigration

[2013] FCCA 561

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSJM v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 561

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal treated the applicant unfairly and discriminated against her and made a decision on the review without having held a hearing.

Legislation:

Migration Act 1958, ss.36, 425, 425A, 426A, 441A, 441C, 474

Migration Regulations 1994, reg.4.35D

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZSJM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2925 of 2012

Judgment of: Judge Cameron

Hearing date: 23 May 2013

Date of Last Submission: 23 May 2013

Delivered at: Sydney

Delivered on: 23 May 2013

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,700.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2925 of 2012

SZSJM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of China who arrived in Australia on 22 February 2012.  On 2 March 2012 she lodged an application for a protection visa with the Department of Immigration and Citizenship (“Department”), alleging that she feared persecution in China because she had breached China’s One Child Policy and had been forced to have an abortion.  On 8 June 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 2 and 3 of the Tribunal’s decision.  In summary, they were as follows.

2. The applicant made the following claims in her protection visa application:

   a)between 1996 and 1998 she was detained on a number of occasions after being accused of illegally working in a game room;

   b)because she loved children and wanted to have more than the two she already had, she applied to her local street committee to have more children but they refused her application.  She appealed to the city government but was ignored and was told that she would lose her home if she had any more children;

   c)she decided to have another baby without the government’s permission.  When she was two months pregnant she went to the hospital for a check-up and the hospital reported her to the local street committee.  She was forced to have an abortion in January 2012;

   d)she was traumatised by the abortion and protested against the behaviour of the government.  As a result, she was intimidated and threatened; and

   e)if she returned to China and became pregnant, she would again be forced to have an abortion.  If she refused, she would be heavily penalised and eventually would not be able to survive.

The Tribunal’s decision and reasons

1. On 8 October 2012 the Tribunal wrote to the applicant to advise her that it had considered all 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 5 November 2012 to give oral evidence and present arguments. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on her application without further notice. No response was received from the applicant and she did not appear before the Tribunal on the day and at the time she was scheduled to appear. In those circumstances, and pursuant to s.426A of the Act, the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.

2. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or pursuant to s.36(2)(aa) of the Act.

3. The Tribunal found that the applicant’s claims were lacking in essential detail.  It found that while the applicant claimed to fear the Chinese authorities because she had had a forced abortion and had been detained a number of times, there was little detail in her application as to when and why she was detained.  The Tribunal noted that the applicant failed to appear at its hearing and found that, as a consequence, it was unable to question her further as to the veracity of her claims, leaving those claims unclarified and its questions unanswered.  The Tribunal concluded that on the evidence before it, it was not satisfied that the applicant had suffered persecution in the past or that she had a well-founded fear of persecution for a Convention reason.  The Tribunal was also not satisfied that there were substantial grounds for believing, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, that there was a real chance that she would suffer significant harm.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.I was unfairly treated by Immigration Department.

   2.I was unfairly treated by RRT.

   3.I was discriminated.

2. At the hearing of this application the applicant also complained that the Tribunal had proceeded to make a decision on her review application, notwithstanding that she had not received the letter inviting her to the hearing until after the hearing date had passed. 

Service of invitation to attend Tribunal hearing

1. Before considering the matters alleged in the application, and particularly in light of the applicant’s submissions at the hearing of this application, it is necessary to consider whether any error is disclosed by the fact that the Tribunal made its decision without a hearing.  In this connection, certain aspects of the statutory regime under which the Tribunal operated should be considered. 

2. Section 425(1) of the Act provides that the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review, namely the delegate’s decision to refuse to grant the visa. Section 425A of the Act provides:

   425ANotice of invitation to appear

   (1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

   (2)     The notice must be given to the applicant:

   (a)except where paragraph (b) applies—by one of the methods specified in section 441A; or

   (b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

   (3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

   (4)The notice must contain a statement of the effect of section 426A.

3. The only evidence before the Court today is the Court Book, which is exhibit A. Page 69 of the Court Book shows that the Tribunal’s s.425A letter addressed to the applicant at the address she gave in her application to the Tribunal was dated 8 October 2012. A copy of a registered post sticker displaying the number 488967748010 appears on the copy of that letter. At p.76 of the Court Book is a reproduction of Australia Post’s tracking of a letter bearing the tracking identification number 488967748010. I infer that that tracking record relates to the Tribunal’s s.425A letter. That tracking document records that the s.425A letter was received at Seven Hills Post Shop on 10 October 2012 which, it might be noted, is less than three days after the date of the letter. Page 76 of the Court Book satisfied me that the s.425A letter was sent to the applicant within three days of the date it bore and no later than 10 October 2012.

4. In relation to the dispatch of a s.425A notice, s.441A(4) of the Act relevantly provides:

   Dispatch by prepaid post or by other prepaid means

   (4)Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:

   (a)within 3 working days (in the place of dispatch) of the date of the document; and

   (b)     by prepaid post or by other prepaid means; and

   (c) to:

   (i)     the last address for service provided to the Tribunal by the recipient in connection with the review; or

   (ii)     the last residential or business address provided to the Tribunal by the recipient in connection with the review; or …

5. By dispatching its s.425A letter within three days of the letters’ date, to the address given by the applicant in her application to the Tribunal, the Tribunal satisfied the requirements of s.441A(4). Because of this, and by virtue of s.441C(4) of the Act, the notice is taken to have been received by the applicant seven working days after the date which it bears, namely 17 October 2012.

6. When an applicant is invited to a Tribunal hearing, reg.4.35D of the Migration Regulations 1994 provides that in the case of an applicant who is not in immigration detention the applicant must receive the invitation to the hearing fourteen clear days before that hearing. The s.425A letter invited the applicant to a hearing on 5 November 2012. As the applicant was not in detention she had to receive notice of the Tribunal hearing no later than 19 October 2012. As the letter is deemed to have been received on 17 October 2012, the requirements of reg.4.35D were met.

7. In the circumstances, the Tribunal was empowered by s.426A to proceed to make a decision on the review. Consequently, there was no error in it doing so.

Ground 1

1. Turning now to the first ground of the application, it was an allegation that the applicant was unfairly treated by the Department.  This allegation is not capable of being considered in these proceedings because the Court has no jurisdiction to review the actions of the Department in cases which are reviewable by the Tribunal.  Consequently, anything which the applicant might raise in relation to the way her visa application was dealt with by the Department is relevantly something she should have raised with the Tribunal rather than in these proceedings. 

Ground 2

1. The second ground of the application alleges that the applicant was unfairly treated by the Tribunal. As noted earlier, at the hearing of this application the applicant stated that she had not received the Tribunal’s hearing invitation until after the date for the hearing had passed. If so, it is not unsurprising that she might feel that the Tribunal’s procedures were not subjectively fair. However, the Tribunal’s relevant obligations are set out in the provisions of the Act to which reference has already been made in these reasons. The test of fairness which is relevant to this matter is based on compliance with those provisions which I have found did occur. In those circumstances, there was no relevant unfairness in the way the Tribunal treated the applicant.

Ground 3

1. The third ground of the application alleged that the applicant suffered discrimination, presumably at the hands of the Tribunal.  The applicant did not particularise this allegation or indicate the manner in which she believed the Tribunal had discriminated against her.  If this ground related to the Tribunal’s summary disposal of her application for review, then that issue has already been dealt with earlier in these reasons.  In other respects, there is nothing in the Court Book which would suggest anything other than straightforward and ordinary dealings with the applicant and an unexceptionable analysis of the facts before the Tribunal which led to a decision which was open on the evidence.

2. For these reasons, the third ground of the application is not made out. 

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently the application will be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date:  20 June 2013