SZTHQ v Minister for Immigration

[2014] FCCA 1529

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTHQ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1529

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – applicants did not appear before Tribunal to give evidence in response to invitation issued by the Tribunal – whether it was open to the Tribunal to make a decision on the review without taking any further action to allow or enable applicants to appear before it – whether Tribunal considered applicants’ claims – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 425, 425A, 426A, 426A(1), 441A, 441A(4)

First Applicant: SZTHQ

Second Applicant: SZTHR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2253 of 2013

Judgment of: Judge Manousaridis

Hearing date: 7 March 2014

Delivered at: Sydney

Delivered on: 16 July 2014

REPRESENTATION

Applicants appeared in person assisted by an interpreter.

Solicitors for the Respondents: Ms Stone
DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The applicants pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2253 of 2013

SZTHQ

First Applicant

SZTHR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In their application for judicial review of a decision of the second respondent (Tribunal), the applicants, who are not legally represented, claim the Tribunal failed to consider their claims and evidence.

2. At least part of the applicants’ claim before the Court is based on the Tribunal’s having decided their application for review without hearing evidence and argument from the applicants. The Tribunal did so because the applicants did not appear before the Tribunal in response to a written invitation that they appear before it at the time and date scheduled for the hearing; and the Tribunal exercised the power conferred on it by s.426A of the Migration Act 1958 (Cth) (Act) to determine their application for review without taking any further action to allow or enable the applicants to appear before it.

3. The applicants say they did not attend the hearing before the Tribunal because, due to the illness of one of the applicants, they did not attempt to collect the Tribunal’s invitation from the post office box to which the Tribunal sent the invitation until after the envelope containing the invitation was returned to the Tribunal. One of the applicants also indicated that it “may be due to my… moving house that… I failed to receive the letter”.[1]

   [1] T6.25-T6.30

4. In these reasons, therefore, I consider whether it was open to the Tribunal to decide the application without taking any further action to allow or enable the applicants to appear before it and, if so, whether the Tribunal considered the applicants’ claims on the material that was before it.

Facts

1. The applicants are husband and wife, and are nationals of the People’s Republic of China.

2. On 15 May 2012 they applied to the first respondent (Minister) for a protection visa. The asserted facts on which they made their claim are as follows:[2] the first applicant owned a factory in his village; he was informed that a Taiwanese investor wished to build a factory on the site of the first applicant’s factory for which he was offered inadequate compensation; angered by the inadequate compensation, the first applicant, through a lawyer, lodged a letter of protest; the first applicant was accosted in his factory, hooded, and his mouth taped, and was warned by the assailants that if the first applicant continued with his appeal his family would be unable to find his body; the first applicant was then severely beaten; the first applicant subsequently discovered that he was offered inadequate compensation because of corruption among officials; the applicants also discovered that a contract killer had been hired by those who favoured the Taiwanese investor and who stood to gain by the investment including corrupt officials; the applicants went into hiding to avoid having to agree to the compensation offered and avoid detection by the contract killer; and the first applicant consequently “fled to Australia for my life”.[3]

   [2] CB83-89

   [3] CB89

3. A delegate of the Minister refused the application for a protection visa on 14 August 2012. The applicants then applied to the Tribunal for a review of the delegate’s decision. In Part C of the application form, the applicants specified a post office box in Hurstville as the address to which the Tribunal should send correspondence about the application.[4]

   [4] CB136

4. There is in evidence a copy of a letter dated 1 July 2013 from the Tribunal to the applicants in which the Tribunal stated that it considered the material that was before it but could not, on the basis of that material, make a decision favourable to the applicants.[5] The letter invited the applicants to appear before it on 29 July 2013 to give evidence and present arguments. It was addressed to the post office box address the applicants recorded in their application form.

   [5] CB145

5. There is evidence before me of the Tribunal’s postal log records for 1 July 2013 which satisfies me that the Tribunal’s letter was dispatched on 1 July 2013.[6] The envelope containing the letter was returned to the Tribunal marked “uncollected”. The envelope also contains handwritten notations “FINAL NOTICE 24/7” and “RTS 30/7”.[7] The Tribunal, in its reasons for decision, notes that the letter was returned to the Tribunal on 12 August 2013.[8]

   [6] Affidavit of A O Wong, 14.02.2014, Annexure “B”

   [7] CB154

   [8] CB165, [4]

6. On 20 August 2013, the Tribunal determined the application for review by affirming the delegate’s decision. The Tribunal set out the claims the applicants made in their application for a protection visa;[9] noted that a letter dated 1 July 2013 inviting the applicants to attend before the Tribunal to give evidence had been sent to the post office box address of the applicants, but the applicants did not appear; and noted that, pursuant to s.426A of the Act the Tribunal decided to make its decision on the review without taking any further action to enable the applicants to appear before it.[10] The Tribunal then set out its consideration of the applicants’ claims.[11]

   [9] CB164-165, [3]

   [10] CB165, [4]

   [11] CB165-166    

7. The Tribunal said:[12]

   The Tribunal has a number of issues upon which it requires a good deal more detail, for example, why the authorities would continue to pursue the applicant in order to obtain his signature if they were acting corruptly, and/or they would engage a contract killer to kill the applicant, and/or why he would leave his children in China if he felt his life was under threat, before it could be satisfied that the applicants are in genuine fear of persecution and that there is a real chance that either or both will be persecuted on their return to China.

   [12] CB166, [11]

8. The Tribunal, therefore, was unable to be satisfied that the applicants satisfied the criteria specified in s.36(2)(a) or s.36(2)(aa) of the Act.

Was it open to the Tribunal to proceed under s.426A of the Act?

1. The Tribunal is required to invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.[13] When inviting an applicant to appear, 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.[14] Where the applicant is not in immigration detention, the Tribunal must give the notice to appear by one of the methods specified in s.441A of the Act. One such method is that specified in s.441A(4) of the Act. It consists of a member, the Registrar, or an officer of the Tribunal dating the notice and then dispatching it within three working days of the date of the document by pre-paid post to (among other places) the last address for service provided to the Tribunal by the applicant in connection with the review.

   [13] Subsection 425(1) of the Act

   [14] Subsection 425A(1) of the Act

2. Under s.426A(1) of the Act, if an applicant is invited under s.425 of the Act to appear before the Tribunal, and the applicant 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.

3. In my opinion, the Tribunal complied with s.425 and s.441A of the Act. As I note above, the letter was dispatched on 1 July 2013; and it was dispatched by registered post to the post office box address specified by the applicants in their application for review. Accordingly, it was open to the Tribunal under s.426A of the Act to make a decision in relation to the applicants’ application for review without taking any further action to allow or enable the applicants to appear before it.

Did the Tribunal consider the applicants’ claims?

1. In their application filed in this Court, under the heading “Grounds of application”, the applicants say:

   The manager supported by the local officer threatened me to sign their agreement. This will make demolishing my factory legally [sic]. To avoid their further persecution, I was forced to flee abroad for protection. The Tribunal member failed considering all my claims and evidence, made jurisdictional error.

2. Only the last sentence of this passage can be regarded as alleging jurisdictional error by the Tribunal.

3. In my opinion, there is no substance to the ground. The Tribunal set out in detail the claims the applicants made in support of their application for a protection visa. That fact, and the reasons the Tribunal gave for its not being satisfied that the applicants were entitled to a protection visa indicate the Tribunal understood the applicant’s claims.

Application for an adjournment

1. At the hearing, the applicant applied for an adjournment. The grounds of the adjournment were that the second applicant was in poor health, and that the applicants desired further time to submit to the Court evidence of their persecution in China. I did not grant the adjournment. I informed the applicants that this Court does not have the power to consider whether the applicants had a well-founded fear of persecution; that was the task of the Tribunal. I informed the applicants that the role of the Court was to consider whether the Tribunal determined the application that was before it according to law.

Conclusion and disposition

1. The applicants’ claim for judicial review fails. I propose, therefore, to dismiss the application and order the applicants pay the Minister’s costs.

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

Associate: 

Date:  16 July 2014