SZTPT v Minister for Immigration - [2014] FCCA 2960

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTPT v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 2960

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.425, 425A, 426A

NAVX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 287
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
SZLBR v Minister for Immigration and Citizenship [2008] FCAFC 85
SZTQW v Minister for Immigration & Anor [2014] FCCA 2658

Applicant:

SZTPT

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3023 of 2013

Judgment of:

Judge Barnes

Hearing date:

8 December 2014

Delivered at:

Sydney

Delivered on:

8 December 2014

REPRESENTATION

Applicant:

In Person

Solicitors for the Respondents:

Clayton Utz

ORDERS

The name of the First Respondent be amended to read 'Minister for Immigration and Border Protection’.
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $4,000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3023 of 2013

SZTPT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 14 November 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of the People’s Republic of China, arrived in Australia in May 2008. He applied for protection in October 2012. He provided a written statement in support of his claims which, in essence, focused on a claim that when he returned to China in June 2009, he found that part of the family pig yard had been expropriated to facilitate the building of a railway line. The yard was said to have significantly decreased in size. He claimed that passing trains had led to cracks in the structure of the home and that pigs had suffered miscarriages. He claimed his parents had unsuccessfully asked for compensation. He provided some supporting documentation.
The Applicant claimed that he and neighbours went to the township yard, that police intervened and that he and others were taken to the police station, kicked and threatened and that he organised 20 people to sit in, two days later, at the municipal government office in Fuqing City. He also claimed that the police later came to his home while he was not there, asked after him and told his parents he would need to attend the police station. The Applicant claimed that the next day he fled to Shanghai and then returned to Australia.
The Applicant attended an interview with the delegate. He provided some further information, including the fact that his father had sold the piggery in 2012 and was offered, and accepted, compensation. The delegate also recorded that when asked about his approach to the municipal government, the Applicant responded that he did not go to the municipal government office in Fuqing City. He also stated that he had had no prior conflict with the authorities in China and that he had not pursued the issue after returning to Australia. The delegate found that the Applicant’s claims were vague and generalised and that he lacked knowledge of some specific details. The delegate also had regard to the fact that the matter was settled as the father had sold the piggery and to the delay in the application for protection.
The Applicant sought review by application lodged with the Tribunal on 27 March 2013. In the review application form he appointed a registered migration agent to be his authorised recipient and provided contact details for that representative to receive correspondence. I note that the postal address he provided for the migration agent is incomplete. It refers to a Post Office Box number, but no suburb, State or postcode. Notwithstanding the incomplete postal address, the Tribunal wrote to the Applicant, acknowledging receipt of his application, care of his authorised recipient, at the Post Office Box number in Haymarket (the suburb specified in the address that had been provided for the same authorised recipient in connection with the protection visa application). In other words, the Tribunal inserted the suburb and postcode in the incomplete address provided to it.
The Tribunal also wrote to the Applicant, care of his authorised recipient, by letter sent by registered post to the same address on 23 September 2013. That letter informed the Applicant that the Tribunal had considered the material before it, but was unable to make a favourable decision on that information alone and invited him to attend a Tribunal hearing on 13 November 2013 at a time and location specified. Among other things, the Tribunal advised that if the Applicant did not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable the Applicant to appear before it. The letter bears the same registered post number as appears on an Australia Post track‑your‑item page, which records that the hearing invitation went to the Haymarket Post Shop and had been delivered on 25 September 2013.
In a Response to Hearing Invitation Form dated 28 October 2013 that was received by the Tribunal, the Applicant indicated that he would not be attending the Tribunal hearing.
In its reasons for decision, the Tribunal recorded that the Applicant had declined the opportunity to appear before it to give evidence and to present arguments and that no request for postponement of the hearing had been received. The Tribunal set out the claims made by the Applicant, but found on the material before it that the Applicant’s written claims were so brief and vague that it was unable to establish the relevant facts. It recorded that it understood that it appeared that the Applicant claimed he feared harm at the hands of the authorities in China for reasons of the expropriation of part of the family piggery. However the Tribunal found, on the limited information before it, given the insufficient information and lack of detail in the Applicant’s claims, that it was not satisfied that there was a real chance the Applicant would face serious harm at the hands of the authorities, individuals, groups or other potential agents of harm in the People’s Republic of China for any Convention reason or that there had been any systematic and discriminatory withholding of protection. It also found on the limited information before it, given the insufficient information and lack of detail in the claims, that it was not satisfied there were substantial grounds for believing there was a real risk the Applicant would suffer significant harm. The Tribunal affirmed the delegate’s decision.
It is apparent from the Tribunal reasons for decision that it made its decision on the basis that the Applicant declined the invitation to attend the Tribunal hearing.
There would appear to be no doubt that the Applicant received a copy of the Tribunal decision (sent to the same authorised recipient) which he attached to the affidavit which accompanied his application for review.
The Applicant sought review by application filed in this Court on 5 December 2013. There is one generally expressed and unparticularised ground. It is that the Tribunal made an error in making the decision. The Applicant did not file written submissions, although orders were made to enable him to do so at the directions hearing which he attended with the assistance of a Mandarin interpreter. He was given the opportunity to make oral submissions today.
Initially, the Applicant appeared to take issue with the delegate’s decision or with the merits of the delegate’s findings in raising an issue about calculation of the area of the piggery. Insofar as such a contention relates to the Tribunal decision it seeks impermissible merits review.
However, after hearing the Minister’s oral submissions, the Applicant claimed that he knew nothing about the Tribunal hearing. He claimed that he had only a “relatively cheap lawyer” who, he explained, “was his migration agent”. He claimed that he could not afford a “decent” lawyer and that he did not know about the hearing. He claimed that “perhaps” he did not receive the invitation, or that “perhaps” the lawyer did not tell him “in time””. He asked when the Tribunal hearing was scheduled. I informed him it had been scheduled on 13 November 2013, but that he had responded and indicated that he would not be attending.
The Applicant was given several opportunities to say more, so that I could be satisfied that he was not raising a ground of substance in relation to his failure to attend the Tribunal hearing. However, there is nothing in the material before the Court or anything that the Applicant said today to raise any concern that the Applicant was raising such a ground, including a ground of the nature considered by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35. I note in that respect, the necessity to distinctly plead and prove fraud and the distinction between fraud and bare negligence or inadvertence.
I have considered whether the Applicant was properly invited to the Tribunal hearing. The hearing invitation letter contains the necessary information. Relevantly, it informed the Applicant that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. It gave the Applicant notice of the day, time and place at which the hearing was to be held, as required by s.425A of the Migration Act 1958 (Cth) (the Act). It gave the requisite period of notice. Consistent with s.426A of the Act it advised the Applicant that if he did not attend at the scheduled hearing, the Tribunal may make a decision without taking further action to allow or enable him to appear.
As indicated, when the Applicant applied to the Tribunal, he provided an incomplete postal address for the migration agent who was his authorised recipient. The migration agent’s name and organisation was provided and a Post Office Box number. However the agent was the migration agent who had been his authorised recipient throughout the whole of the protection visa application process. Complete details of the agent’s address had been provided in the Form 956 provided to the Department on 11 October 2012, including not only the Post Office Box number but also the suburb of Haymarket, NSW and the postcode 1240. This was the address to which the Tribunal sent the invitation to the hearing. Indeed it was also the address to which the Tribunal sent the Tribunal decision.
Moreover, not only is there a tracking record which indicates that the item went to Haymarket post shop and was delivered on 25 September 2013 but, importantly, the Response to Hearing Invitation Form was completed and returned to the Tribunal. It is dated 28 October 2013. It is stamped “received” on 11 November 2013.
In these circumstances, the fact that the Tribunal did not send its hearing invitation to a meaningless incomplete address consisting only of a Post Office Box number is not such as to amount to a jurisdictional error. No authority was cited by the solicitor for the Minister in this respect, but there is authority in relation to circumstances where a Tribunal has taken it upon itself to correct infelicities or inaccuracies in the address of an Applicant in circumstances which have not been found to amount to jurisdictional error (see SZTQW v Minister for Immigration & Anor [2014] FCCA 2658 and cases referred to therein). This is such a case.
The Applicant responded to the Tribunal invitation. Whether or not he did so directly or through his migration agent, it is clear that the Response to Hearing Invitation Form was returned to the Tribunal. Although the address used by the Tribunal included more than the details the Applicant provided, there was no practical injustice (see SZLBR v Minister for Immigration and Citizenship [2008] FCAFC 85). In any event, I am not satisfied that the Tribunal failed to invite the Applicant to attend a hearing as required by s.425 of the Act.
On the material before the Court no jurisdictional error is established in relation to the invitation to the hearing and/or the Applicant’s failure to attend the Tribunal hearing.
In circumstances where the Applicant declined to attend the hearing, the remarks made by the Full Court of Federal Court in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 287 at [5] are apposite. In this case, as in that case, the Tribunal had indicated to the Applicant that it was unable to find in his favour on the basis of the material in its possession and had invited him to attend a hearing. When he failed to accept that opportunity, the “inevitable consequence was the rejection of his application” (see NAVX at [5]).
No jurisdictional error is established on the basis contended for in the application or on the basis of the matters that the Applicant raised today in oral submissions. As no jurisdictional error has been established, the application must be dismissed. Before I make the orders I will hear submissions in relation to costs.
The Applicant has been unsuccessful. There is nothing in the circumstances of this case to warrant a departure from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent. Having regard to the nature of this and other similar matters, I am of the view that the sum of $4,000 is an appropriate amount.

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

Associate:

Date: 18 December 2014