SZTRW v Minister for Immigration

[2014] FCCA 1696

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTRW v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1696

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2A), 91R(1), 91R(2) , 415, 417, 425, 425A(1), 425A(3), 426A, 426A(1), 441A , 441A(4), 441C(4)

Applicant: SZTRW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3190 of 2013

Judgment of: Judge Manousaridis

Hearing date: 15 July 2014

Delivered at: Sydney

Delivered on: 31 July 2014

REPRESENTATION

Applicant in person.

Counsel for the Respondents: Mr J Smith

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3190 of 2013

SZTRW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In this application for judicial review, the applicant, who is a citizen of Bangladesh, claims the second respondent (Tribunal) made a number of jurisdictional errors in affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa.

Background

1. The applicant applied for a protection visa through a solicitor. The application was made under cover of a letter from the solicitor dated 10 December 2012. In his opening paragraph, the solicitor said that the application was “primarily designed to elicit the Minister’s residual discretion in accordance with Section 417”.[1] That must have been intended to be a reference to s.417 of the Migration Act 1958 (Cth) (Act) which confers on the Minister a discretion to substitute for the decision of the Tribunal under s.415 a decision that is more favourable to an applicant for review.

   [1] CB1

2. The solicitor’s letter then set out what are intended to be the applicant’s grounds for a protection visa. In short, the applicant claimed that he had previously applied for but failed to obtain a Student Visa (sub-class 573); the applicant, therefore is unable to continue with his studies; and, as a consequence, the applicant has been devastated, a source of  deep humiliation and embarrassment in the eyes of his family. The solicitor accepted that the applicant’s claims “are not persecutory claims”. The solicitor did submit that “if relevant” the applicant’s circumstances did attract “Complementary Protection”.

3. In the application that accompanied the solicitor’s letter, the applicant stated the following in answer to the question “What do you fear may happen to you if you go back to that country?”:[2]

   [2] CB22

   Refer submission attached

   We rely upon

   a)     Invoking Minister’s residual discretion and

   b)     If valid complementary claim

4. To the question “Who do you think may harm/mistreat you if you go back?” the applicant answered:[3]

   Have caused significant upset and turmoil in my family. Have failed to achieve completion of studies at great cost to me and my family.

   [3] CB23

5. And to the question “Why do you think this will happen to you if you go back?”, the applicant answered:[4]

   [4] CB23

   Refer submission attached

   1)Family disappointed and upset you did not complete your studies

   2)Family provided much money to support you from savings

   3)Applicant feels a deep sense of shame and embarrassment and humiliation

   4)Applicant further believes has complied with all student requirements.

6. The applicant’s solicitor advised the Department of Immigration and Border Protection (which was then known as the Department of Immigration and Citizenship) that the applicant had no further claims to submit, and that he wished to waive his right to an interview.[5] On 13 February 2013 a delegate of the Minister refused the applicant’s claim for protection because he was not satisfied the applicant was a person to whom Australia had protection obligations under s.36 of the Act.

   [5] CB55

7. The applicant applied to the Tribunal for a review of the delegate’s decision. On 1 October 2013 the Tribunal despatched a letter to the applicant at the address the applicant nominated in his application for review as his address for service inviting the applicant to attend a hearing before the Tribunal on 20 November 2013.[6] The letter was returned to the Tribunal on 21 October 2013.[7] On 21 October 2013, an officer of the Tribunal, at the request of a member of the Tribunal, attempted to telephone the applicant. The officer reached the applicant’s voicemail and left a message for the applicant asking him to contact the Tribunal regarding the hearing invitation returned to the Tribunal marked as unclaimed.[8] The applicant returned the call on the same day. The applicant informed the officer that he had moved, stated his new address, and said he would advise the Tribunal in writing of his new address. The officer undertook to send the applicant a copy of the hearing invitation to his new address.[9] The Tribunal did so on 22 October 2013 by sending a copy of the letter dated 1 October 2013.[10]

   [6] CB82; affidavit of C A Hillary, [3] and [4]

   [7] CB89, 90.

   [8] CB97

   [9] CB98

   [10] CB107, 108; affidavit of C A Hillary, [5], [6]

8. The applicant did not appear before the Tribunal on 20 November 2013. The Tribunal decided to make a decision on the review application pursuant to s.426A of the Act without taking any further action to enable the applicant to appear before the Tribunal.[11]

   [11] CB119, [5]

The Tribunal’s decision

1. The Tribunal concluded the applicant did not satisfy s.36(2)(a) of the Act because there was nothing before it to suggest that any humiliation or harm that would be inflicted on the applicant would be motivated by his race, religion, nationality, membership of a particular group or political opinion.[12] Further, the Tribunal was not satisfied that the humiliation and embarrassment the applicant claimed he feared did not constitute serious harm within the meaning of s.91R(1) of the Act, given the examples of serious harm listed in s.91R(2) of the Act.[13] Accordingly, the Tribunal concluded it was not satisfied there was a real chance the applicant would suffer from serious harm “for a Convention related reason if he was to return to Bangladesh”.[14]

   [12] CB119, [8]

   [13] CB119, [9]

   [14] CB120, [10]

2. When considering whether the applicant satisfied the criterion specified in s.36(2)(aa) of the Act, the Tribunal said it accepted that families of international students often pay significant funds for their child to study in Australia, and certain expectations are placed on the student as a result.[15] The Tribunal also accepted that where a student does meet such expectations, the student may well experience humiliation, embarrassment, and loss of standing.[16] The Tribunal was not satisfied, however, that the harm the applicant described he would suffer was “significant harm” within the meaning of s.36(2A) of the Act.

   [15] CB120, [12]

   [16] CB120, [12]

3. The Tribunal, therefore, affirmed the delegate’s decision not to grant the applicant a protection visa.

Grounds of application

1. The application raises three grounds of review.

Ground 1

1. The first ground of review is:

   The applicant claims that the Refugee Review Tribunal (the Tribunal) made a procedural mistake that it did not consider that the applicant would suffer harm if he returns to overseas. The Tribunal did not consider its power under the Migration Act 1958 (the Act) to allow further time because of the nature of his claim.

   Particulars

   The applicant claims to fear returning to Bangladesh because of his failure to complete his studies in Australia which have resulted in humiliation and embarrassment for him.

2. The applicant, who is not legally represented, made no submission at the hearing apart from providing to the Court additional written submissions (which I will consider later in these reasons). The applicant did file, however, written submissions in advance of the hearing. Most of the first paragraph on page 2 of the submissions repeats the substance of ground 1 of the application.

3. Counsel for the Minister interprets this ground as raising two issues. The first is a claim that the Tribunal did not consider whether the applicant would suffer harm if he returned to Bangladesh. In my opinion, the Tribunal did consider that question. It accepted that the applicant might well suffer embarrassment, humiliation, and loss of standing. The Tribunal concluded, however, that these matters did not constitute harm of the sort defined in s.91R(1) or s.36(2A) of the Act. In my opinion, it was open to the Tribunal to so conclude.

4. The second issue counsel for the Minister interprets ground 1 as raising is the Tribunal’s decision to determine the application for review pursuant to s.426A of the Act without taking any further action to enable the applicant to appear before the Tribunal. And this raises two questions: whether the Tribunal had the power to make such decision; and, if so, whether the Tribunal’s decision was unreasonable.

5. Whether or not the Tribunal had the power to make the decision requires consideration of a number of provisions. The starting point is s.425 of the Act which requires the Tribunal 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. Section 425A(1) of the Act provides that 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. And s.425A(3) provides that the period of notice given must be at least the prescribed period or if no period is prescribed, a reasonable period. The period of notice has been prescribed, and that is a period that starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which notice is received.[17]

   [17] Reg. 4.35D Migration Regulations 1994 (Cth).

6. 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. Under s.441C(4) of the Act, where notice is sent by pre-paid post, the person is taken to have received the document seven working days after the date of the document, if the document was dispatched from a place in Australia to an address in Australia.

7. 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.

8. In my opinion, the Tribunal complied with s.425 and s.441A of the Act. The letter inviting the applicant to attend a hearing before the Tribunal is dated 1 October 2013; it is addressed to the applicant at the address the applicant specified in his form of application for review; and the letter was dispatched by prepaid post on 1 October 2013. The applicant is deemed by the Act to have received the letter by 8 October 2013, which is more than fourteen days before the date of the appointed hearing. In these circumstances, the Tribunal had the power to proceed with the review under s.426A of the Act without taking any further action to enable the applicant to appear before the hearing.

9. I have considered whether any significance attaches to the Tribunal’s sending to the applicant on 22 October 2013 a copy of the letter of invitation dated 1 October 2013. In particular, I have considered whether it could be said that the Tribunal’s sending the copy letter constituted the sending of a fresh invitation, in which case the letter of invitation could not have been sent in accordance with s.441A(4) of the Act. In my opinion, it could not be so said. All the Tribunal did by sending the copy letter to the new address was to ensure the applicant received actual notice of an invitation it had previously sent.

10. Further, the Tribunal did not act unreasonably by deciding to so proceed. The Tribunal made enquiries of the applicant after the letter sent to the address nominated by the applicant in his application form was returned to the Tribunal, and the Tribunal arranged to send a copy to the applicant to the address the applicant nominated in his telephone conversation with the Tribunal officer. And the Tribunal satisfied itself by reference to postal records that the copy letter had been sent to the new address.[18]

    [18] CB131, [5]

11. Ground 1 of the application for review, therefore, is not made out.

Ground 2

1. The second ground of review stated in the application is as follows:

   The Tribunal made a procedural mistake [in] that it failed to understand the nature of applicant’s claim to the Department of Immigration and Border Protection (the Department). The applicant made his application to the Department to get protection and his inability to provide evidential support for the claim but the Tribunal did not understand the significance of that claim.

   Particulars

   This is an application primarily designed to elicit the Minister’s residual discretion in accordance with section 417 of the Act.

2. I do not understand the applicant’s written submissions to address this ground of review.

3. From the particulars, the ground appears to be that the Tribunal failed to understand that the application was primarily designed to elicit the Minister’s discretion under s.417 of the Act. If that was the purpose of the application for review, the Tribunal had no jurisdiction to consider it. Its jurisdiction was to determine on the material before it whether the applicant satisfied the criteria prescribed by s.36(2)(a) or s.36(2)(aa) of the Act. But even if the Tribunal was required to understand that that was the applicant’s purpose, the purpose has been fulfilled. That is so because the Tribunal affirmed the delegate’s decision, and thus laid the foundation for the applicant to apply to the Minister to make a decision under s.417 of the Act.

4. Ground 2, therefore, also fails.

Ground 3

1. The third ground of review is as follows:

   The Tribunal failed to comply with Migration Act 1958. The Tribunal did not consider the circumstances of the applicant and his inability to provide further evidences before the Tribunal for his application.

2. There is no substance to this ground. The Tribunal did consider the applicant’s claim. And to the extent the ground is intended to incorporate a claim that the applicant was not given an opportunity to provide further evidence and arguments to the Tribunal, that claim has no merit. As I have concluded above, the Tribunal complied with s.425 and s.441A of the Act, and therefore gave the applicant the notice it was required to give him.

Ground 4

1. The fourth ground of review is as follows:

   The Tribunal made a mistake that the Tribunal failed to consider that the applicant was in a situation where he cannot disclose information about his claim for protection because of the nature of his claim. The applicant has been denied procedural fairness.

2. It appears the claim is that the Tribunal made its decision because the applicant did not provide information about a matter but the Tribunal should not have made such a decision because it should have appreciated that the nature of the applicant’s claim was such that the applicant could not disclose the information. If that is the correct interpretation of the claim, it has no merit.

3. First, the applicant does not identify, and it is not apparent from the Tribunal’s reasons for decision, that the Tribunal affirmed the delegate’s decision because the applicant had failed to provide any particular piece or class of information.

4. Second, it appears the information the applicant says he was not at liberty to disclose related to the money others had provided to him to fund the costs of his education, and his fear that his life would be in danger because of the expenses that he had incurred in connection with his study. That is how I interpret the following passage from the applicant’s written submissions provided in advance of the hearing:

   “The applicant had limitation for various reasons to provide further evidences in support of his claim. The applicant spent huge amount of money for his studies and which was supplied by other and he is fear for his life for that expenses. The applicant does not want to discuss his embracement [sic] with others”.

5. Third, even if it is the case the applicant felt he could not, and therefore was unwilling to disclose information to the Tribunal, the Tribunal’s appreciation of that could not amount to jurisdictional error. The Tribunal can uphold an applicant’s claim only if it satisfied the applicant meets the criteria specified in s.36(2)(a) or s.36(2)(aa) of the Act. It cannot be so satisfied if an applicant, for whatever reason, is unwilling or unable to provide information that may be relevant to the applicant’s case.

6. Ground 4 of the application also fails.

The applicant’s second written submissions

1. The applicant filed in court a document that contains additional submissions. Most of the document contains claims relating to his being in danger of harm if he were to be returned to Bangladesh. In addition, however, the submission contains the following paragraph:

   I didn’t attend the interview with the RRT because of the risk of my life. I wasn’t sure the secret will be covered or they will reveal my secret to everyone because once they reveal my secret the people who are friends with me now will also go against me. Later on I got to know about the privacy policy of tribunal that they never reveal any secret but at that time my time was finished and now I really want to go to the tribunal after knowing about their privacy policy.

2. The Minister was not prepared to accept the truth of the assertions contained in that passage. Accordingly, the applicant gave evidence. He confirmed that the reason he did not attend the hearing before the Tribunal was that he feared that the information he would give during the hearing “will spread everywhere”.

3. The applicant was cross-examined. He accepted that his application for a protection visa contained all that the applicant wished to say in support of his claim;[19] the application did not mention anything about the applicant fearing being killed on his return to Bangladesh;[20] the reason that was not mentioned in the application was because the applicant did not so inform the lawyer who prepared the application;[21] he had nothing further to say in connection with his application for a protection visa other than what he had told his solicitor;[22] and that the real reason he did not go to the hearing before the Tribunal was that he had nothing further to say to the Tribunal.[23]

   [19] T19.40

   [20] T20.5

   [21] T20.10

   [22] T20.10

   [23] T22.40

4. I do not accept that the applicant did not attend the hearing before the Tribunal because he was afraid the information he might disclose to the Tribunal would be revealed to persons outside the Tribunal and thus endanger the applicant. Given that the stated primary purpose for which the applicant applied for a protection visa, namely, “to elicit the Minister’s residual discretion in accordance with Section 417”,[24] I find that the reason the applicant did not attend the hearing before the Tribunal was the reason the applicant acknowledged in cross-examination was the reason he waived his right to an interview before the Department - that he had nothing further to say to the Tribunal.

   [24] CB1

Conclusions and disposition

1. The applicant has not established the grounds of review set out in his application. Accordingly I propose to order that the application be dismissed and that the applicant pay the Minister’s costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  31 July 2014