SZSJN v Minister for Immigration

[2013] FCCA 885

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSJN v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 885

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – bias – procedural fairness – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.426A

Applicant: SZSJN

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2937 of 2012

Judgment of: Judge Manousaridis

Hearing date: 18 July 2013

Delivered at: Sydney

Delivered on: 1 August 2013

REPRESENTATION

The Applicant appeared in person.

Appearing for the Respondents: Ms McCaughan

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The name of the first respondent recorded in the application be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs assessed in the sum of $5,400.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2937 of 2012

SZSJN

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review of a decision of the second respondent (Tribunal) which affirmed a decision of a delegate of the first respondent (Minister) refusing to grant a protection visa to the applicant. The grounds of the application are, first, the Tribunal showed bias and, second, the Tribunal breached procedural fairness.

2. Neither of these grounds is particularized. Further, during the hearing, on being asked whether the applicant had anything to say in support of her application, the applicant only said she did not attend her interview with the delegate because she was not in Sydney at the time of the interview.

3. The unparticularised grounds stated in the application do not state any arguable ground of review, even if regard is had to the brief submission the applicant made to the Court at the hearing. For this reason, it would be appropriate without more for the application to be dismissed for disclosing no arguable claim for relief.

4. I nevertheless consider in these reasons the Tribunal’s reasons for decision for the purpose of determining whether there is anything apparent from them which may suggest the Tribunal made errors which may fall within the unparticularised grounds stated in the application.

Background

1. On 2 March 2012 the applicant, a national of the People’s Republic of China, applied to the Minister for a protection visa. The ground on which the applicant claimed protection was the asserted fear of her being harmed by the Chinese government. The asserted basis of that fear was that she had been detained and beaten by police because she had complained to government authorities about the medical treatment of her partner.

2. By letter dated 10 May 2012, the Department of Immigration and Citizenship (Department) invited the applicant to attend an interview to discuss her application. The letter was addressed to the address the applicant specified in her application. The applicant did not attend the interview and did not otherwise contact the Department. On 7 June 2012 the delegate refused the applicant’s claim for a protection visa, and the applicant was notified of the delegate’s decision by letter.

3. On 4 July 2012 the applicant applied to the Tribunal for review of the delegate’s decision refusing to grant a protection visa. The application attached the first page of the letter dated 7 June 2012 by which the applicant had been notified of the delegate’s decision refusing to grant the visa.

4. By letter dated 3 October 2012, the Tribunal notified the applicant it had considered the material before it and was unable on the basis of that material to make a favourable decision. The letter then invited the applicant to appear before the Tribunal on 8 November 2012 to give evidence and present arguments relating to the issues arising in the applicant’s case[1]. The letter was addressed to the address the applicant had specified in her written application to the Tribunal. The applicant did not attend the hearing.

   [1] In its reasons for decision (CB81 [8]), the Tribunal incorrectly states that the Tribunal wrote to the applicant on 9 October 2012 inviting her to attend before the Tribunal on 29 October 2013. The letter the Tribunal sent is dated 3 October 2012 and nominates 8 November as the hearing date (CB68).

Tribunal’s decision

1. On 8 November 2012 the Tribunal affirmed the decision of the delegate refusing to grant a protection visa. It did so because the application was lacking in essential detail, and the applicant failed to appear before the Tribunal resulting in the Tribunal being unable “to question the applicant as to the veracity of her claim, leaving her claims unclarified and the Tribunal’s questions unanswered”. The applicant was informed of the Tribunal’s decision by letter dated 9 November 2012.

Grounds of review

1. There is nothing in the material before the Court that could possibly suggest bias on the part of the Tribunal. Nor is there anything in the material to suggest the breach of any rule of procedural fairness.

2. The applicant does not assert she was not notified of the hearing date before the Tribunal that was fixed for 8 November 2012. The Tribunal’s letter of 3 October 2012 was addressed to the address the applicant specified in her written application to the Tribunal for review. The letter stated 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”. In these circumstances, the Tribunal was entitled under s 426A of the Migration Act 1958 to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

Disposition

1. The application should be dismissed and the applicant should pay the first respondent’s costs which I fix at $5,400.

2. The name of the first respondent changed after the commencement of this proceeding. I will order that the name of the first respondent currently on the application be amended to reflect the current name.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  1 August 2013