SZTKQ v Minister for Immigration

[2014] FCCA 2982

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTKQ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2982

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – Applicant did not attend Tribunal hearing – no jurisdictional error.

Legislation:  

Migration Act 1958 (Cth), ss.65, 425, 425A, 426, 426A, 441A, 441C
Migration Regulations 1994 (Cth), reg.4.35

Applicant: SZTKQ

Frist Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2568 of 2013

Judgment of: Judge Barnes

Hearing date: 9 December 2014

Delivered at: Sydney

Delivered on: 9 December 2014

REPRESENTATION

Applicant: In person

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2568 of 2013

SZTKQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 25 September 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant, a citizen of Bangladesh, arrived in Australia in July 2012.  In August 2012, he lodged an application for a protection visa claiming, in essence, to fear persecution in Bangladesh from the Awami League for reason of his involvement in the Bangladesh Nationalist Party (the BNP).  His claims included a claim that he had been attacked in December 2011 and again in March 2012 when his business was ransacked.  He also claimed that the police did not investigate when his wife reported the latter incident and that the Awami League had influenced the police to harass him.  He claimed that they were looking for him in relation to a bus destruction in April 2012, that he went into hiding and left the country because his life was threatened.  He provided a number of documents in support of his claims.

3. The Applicant attended an interview with a delegate of the Minister and on 17 October 2012 the delegate refused his application. 

4. The Applicant sought review by application lodged with the Tribunal on 19 November 2012.  Relevantly, he did not appoint an authorised recipient or representative to act on his behalf.  He provided only one address (a residential address), a mobile telephone number and in Part C of the review application form asked that all correspondence be sent to him at that address.

5. On 20 November 2012 the Tribunal wrote to the Applicant acknowledging receipt of his application by letter sent to the address he had provided.  Included in the Court Book is a copy of that letter and attachments, including a notice of important information about receiving letters from the Tribunal.  It advised applicants that the Tribunal may send important letters to them by registered post, that if no one was home, an Australia Post card would be left requesting that the letter be collected from the local Post Office and that if the applicant did not go to the Post Office within the time specified on such a card, the letter would be returned to the Tribunal.  The notice also explained that if the Tribunal did not receive a response to important correspondence by the due date, the case may be decided without further notice, so it was important that an applicant collect such letters without delay. 

6. By letter dated 6 August 2013 the Tribunal wrote to the Applicant, at the address he had provided, advising him 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 appear before it to give evidence and present arguments in relation to the issues arising in his case at a hearing to be held on 24 September 2013 at a place and time specified.  The letter also contained other information, including that if the Applicant failed to attend the hearing, the Tribunal may make a decision without taking further action to allow or enable him to appear before it. 

7. The letter of 6 August 2013 bears a registered post sticker.  The Court Book contains a copy of the letter marked returned to sender on 23 August 2013.  It is apparent from the material in the Court Book that the letter in an envelope bearing the same registered post number as that on the registered post sticker was posted on 6 August 2013 and was returned to the Tribunal unclaimed. 

8. It is clear that the Applicant did not receive this hearing invitation.  A Tribunal case note recorded that on 2 September 2013 a Tribunal officer telephoned the Applicant regarding the returned hearing invitation, but that the mobile phone number he had provided went to an automated message service that provided for the telephone number of the caller to be left and advised that a text would be sent to the mobile phone holder advising that a call had been received.  The Tribunal officer recorded that she left her direct number. 

9. Another message was left on the automated mobile phone answering service for the Applicant on 17 September 2013.  The Applicant did not attend the hearing on the date, time and place specified. 

10. On 25 September 2013 the Tribunal made its decision.  It recorded that it had before it the Departmental file, material referred to in the delegate’s decision, the documents provided in support of the application and the application for review.  The Tribunal summarised the Applicant’s claims made in connection with his protection visa application.  It recorded that on 6 August 2013 it had written to him at the address for correspondence he had provided in his application for review (as set out above) inviting him to a hearing on the basis that it was unable to make a favourable decision on the information before it.

11. The Tribunal also recorded the hearing invitation letter was sent by registered post, that the Applicant did not respond, that on 23 August 2013 it was returned to the Tribunal marked unclaimed and that after the letter was returned, two attempts were made to contact the Applicant on the mobile telephone number he had provided (on 2 September 2013 and 17 September 2013) and messages were left.  However the Applicant did not contact the Tribunal in response to those messages.  Nor did he appear at the hearing or contact the Tribunal about his failure to appear.  The Tribunal observed that the Applicant had not nominated a representative or authorised recipient. 

12. In those circumstances, pursuant to s.426A of the Migration Act 1958 (Cth) (the Act) the Tribunal decided to make its decision without taking further action to enable the Applicant to appear before it.

13. In its findings and reasons the Tribunal again briefly summarised the Applicant’s claims.  However it found that:

    Without more evidence from or on behalf of the applicant than the evidence presently before it, the Tribunal cannot be satisfied about why the applicant left his country, whether he cannot or will not return to Bangladesh because he fears harm there as he claims, whether there is a real chance that he will face serious harm in his country for a Convention reason now or in the reasonably foreseeable future if he returns there or whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk he will suffer significant harm there.

14. In other words, as the Tribunal went on to find, it was not satisfied on the evidence before it that there was a real chance the Applicant would suffer serious harm for the purposes of the Refugees Convention or a real risk that he would suffer significant harm for the purposes of the complementary protection criterion.  Accordingly it was not satisfied on the evidence before it that the Applicant had a well founded fear of persecution within the meaning of the Refugees Convention, that he met the criterion for complementary protection or that he was a person in respect of whom Australia had protection obligations.  The Tribunal affirmed the delegate’s decision not to grant the Applicant a protection visa. 

15. The Applicant sought review by application filed in this Court on 22 October 2013.  There is one general and unparticularised ground, repeated in his affidavit.  It is that his application was not considered by law and that he was “denied justice”.

16. The Applicant did not file written submissions, but was given an opportunity today to make oral submissions.  He told the Court that the Tribunal had sent him a document which he had not received.  He agreed, when asked about this, that he was referring to the Tribunal’s hearing invitation letter and indicated that if he had received the letter, he would have gone to the Tribunal hearing.  He also made claims to fear harm if he returned to Bangladesh.  As I endeavoured to explain to the Applicant, this Court cannot decide whether he is a refugee in these proceedings and his claims about his fears in Bangladesh do not establish jurisdictional error on the part of the Tribunal. 

17. It is not in dispute, and was accepted by the Minister, that the Applicant did not in fact receive the hearing invitation letter, as it was returned unclaimed to the Tribunal.  However it is necessary to consider whether the Tribunal failed to comply with any of its obligations under the Act in relation to inviting the Applicant to the hearing.

18. Under s.425 of the Act the Tribunal is obliged to invite the Applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Under s.425A, if he is so invited, the Tribunal must give the Applicant notice of the day, time and place of the scheduled hearing. The hearing invitation must, in circumstances such as the present, be given by one of the methods specified in s.441A of the Act.

19. The hearing invitation of 6 August 2013 was an invitation pursuant to s.425 of the Act. It provided notice of the date, time and place of the hearing. It was given by a method by which the Tribunal is to give documents to a person in accordance with s.441A(4) of the Act. The document was dated and (as is apparent from the envelope returned to sender) dispatched within three working days of the date of the document by prepaid post (in this case by registered post) to the last address provided to the Tribunal by the Applicant in connection with the review. He provided only one address in his application for review, as both his residential address and the address to which he wanted correspondence sent. The Tribunal complied with the requirements in ss.425 and 425A, including s.425A(2)(a) in relation to the notice.

20. In that respect I note that reg.4.35D(3)(b) of the Migration Regulations 1994 (Cth) (the Regulations) requires 14 days notice of a Tribunal hearing and in this case more than the minimum period of notice was given in the letter of 6 August 2013, as required by s.425A(3) of the Act.

21. I also note, for the sake of completeness, that the hearing invitation contained a statement as to the effect of s.426A of the Act, as required by s.425A(4), which relevantly provides that, if an applicant is invited to s.425 hearing and does not 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. The letter also included a statement as to the effect of s.426(2), in that it gave the Applicant the opportunity to ask the Tribunal to obtain oral evidence from another person or persons.

22. The difficulty that faces the Applicant in a case such as the present is that s.441C(4) of the Act relevantly provides that if the Tribunal gives a document to a person by the method provided for in s. 441A(4) (as it did in this case) then whether or not the person actually received the document, he or she is taken to have received the document seven working days after the date of the document. In this case, as the hearing invitation complied with the requirements of the Act and notification was given to the Applicant in accordance with s.441A of the Act he was taken to have received the invitation on 15 August 2013.

23. Furthermore, insofar as there may be any suggestion that the Tribunal ought as a matter of fairness, to have taken other action to bring the hearing invitation to the Applicant’s attention, the only other contact details that the Applicant provided to the Tribunal consisted of a mobile telephone number.  As set out above, on two occasions (on 2 and 17 September 2013) a Tribunal officer called that telephone number and in circumstances where it recorded that the only facility for a message on that phone was to leave a telephone number, did so.  However, as the Tribunal also recorded, the Applicant did not contact the Tribunal in response to those messages. 

24. In these circumstances it cannot be said that the Tribunal failed to act reasonably in then proceeding as it did pursuant to s.426A of the Act to make its decision on the review without taking any further action to enable the Applicant to appear before it.

25. As to the reasons for the Tribunal decision, no reviewable error is apparent in the Tribunal decision. Under s.65 of the Act, a visa application is to be rejected in the absence of a positive finding of satisfaction that the Applicant meets the criteria for the visa. In this case the Tribunal found that without more evidence and on the evidence before it, it was not satisfied that the Applicant met the either the Refugees Convention criterion or the complementary protection criterion.

26. As indicated, the Tribunal had already indicated in its hearing invitation letter that it had considered all the material before it but was unable to make a favourable decision on that information alone.  It had not received any written claims from the Applicant beyond those made to the Department.  It was open to the Tribunal to find, in the absence of the Applicant attending a Tribunal hearing or providing further evidence, that it was not satisfied that he met the applicable criteria. 

27. It has not been established that the application was not considered by law or that the Applicant was “denied justice” in a manner constituting jurisdictional error (or that there was a lack of procedural fairness in the sense applicable in the context of the Tribunal’s obligations under the Act).  As no jurisdictional error has been established, the application must be dismissed.

28. The Applicant has been unsuccessful.  There is nothing in the circumstances of the case to warrant a departure from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent.  The Applicant told the Court that he did not work.  That is the case with many applicants in his position.  It is not a reason for departing from the normal principle, but it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.  The amount sought is appropriate and reasonable in light of the nature of this and other similar matters.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date: 22 December 2014