SZTUU v Minister for Immigration

[2015] FCCA 698

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTUU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 698

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – Tribunal decides pursuant to s.426A of the Migration Act 1958 (Cth) (Act) to make a decision on the review without taking any further action to allow or enable the applicant to appear before it – whether the Tribunal provided to the applicant an invitation under s.425(1) of the Act in the manner prescribed by s.441C(4) – whether the Tribunal acted unreasonably in exercising its power under s.426A – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.425, 425(1), 425A, 425A(1), 425A(2), 425A(3), 426A, 441A, 441A(4), 441C(4), 441C(4)(a)

Migration Regulations 1994 (Cth), reg.4.35D(3)

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: SZTUU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 170 of 2014

Judgment of: Judge Manousaridis

Hearing date: 13 August 2014

Delivered at: Sydney

Delivered on: 26 March 2015

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the Respondents: Ms N Blake of Clayton Utz

ORDERS

1. The application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 170 of 2014

SZTUU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The second respondent (Tribunal) affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa. The Tribunal did so after the applicant failed to appear before the Tribunal on a day and at a time the Tribunal invited the applicant to appear before it to present evidence and arguments.

2. In this application for judicial review, the applicant, who is not legally represented, seeks to set aside the Tribunal’s decision on the following three grounds:

   1.I was not giving [sic] an interview.

   2.I was not giving [sic] an opportunity to present my evidence.

   3.I should be giving [sic] my story to RRT and Immigration Department.

3. Although the application contains three grounds, in substance, they state but one ground, namely, that the applicant was not given an opportunity to, and she otherwise did not present, her case to the Tribunal.

4. Although the Tribunal is obliged under s.425(1) of the Migration Act 1958 (Cth) (Act) 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, and the Tribunal must do so in the manner prescribed by s.425A of the Act, the Tribunal has power under s.426A of the Act to make a decision on the review if an applicant, who has been invited by the Tribunal to appear in the manner prescribed by s.425A of the Act, does not appear. The questions that arise on this application for judicial review are whether the preconditions for the Tribunal exercising the power conferred under s.426A of the Act were present in the circumstances of this case and, if so, whether there is anything in the material for suggesting the Tribunal did not exercise that power according to law.

Proceedings before the Tribunal

1. The applicant applied to the Tribunal for review of the delegate’s decision by lodging an approved application form. In her application, the applicant provided a post office box address in Auburn to which the Tribunal should send correspondence about the application.

2. By letter dated 21 November 2013 (hearing invitation) addressed to the post office box address the applicant specified in her application form, the Tribunal invited the applicant to appear before it at 8.30 am on 23 December 2013 to give evidence and present arguments relating to the issues arising in her case. The hearing invitation was sent by registered post.[1]

   [1] CB60

3. There is evidence[2] that the hearing invitation was posted on 21 November 2013, that on 25 November 2013 the letter was awaiting collection at Auburn Post Shop, and that on 9 December 2013 the hearing invitation was collected at the Auburn Post Shop.

   [2] CB67-68

4. The applicant did not appear before the Tribunal on 23 December 2013. The Tribunal then decided, 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. The Tribunal then considered the applicant’s claims, and found them to be “vague, lacking in detail and unpersuasive”[3] and, because of their vagueness, the Tribunal formed the view the applicant had not been truthful in her evidence, and, for that reason, rejected the applicant’s claims.[4]

   [3] CB75, [13]

   [4] CB76, [15]

Did the occasion for exercising power under s.426A arise?

1. Subsection 425A(1) of the Act provides that an invitation issued under s.425 must give the applicant notice of the day on which and the time and place at which the applicant is scheduled to appear. Subsection 425A(2) of the Act provides that a notice under s.425 must, where the applicant is not in detention, be given by one of the methods specified in s.441A of the Act. One of the means specified in s.441A is that provided by s.441A(4), that is by an officer of the Tribunal dating the notice and dispatching it within three working days of the date of the notice by prepaid post or by other prepaid means to the last address for service provided to the Tribunal by the recipient in connection with the review. Finally, s.425A(3) provides that the period of notice must be at least the prescribed period or, if no period is prescribed, a reasonable period. A period has been prescribed under reg.4.35D(3) of the Migration Regulations 1994 (Cth), namely, 14 days after the day a person receives notice of the invitation to appear.

2. The Tribunal’s letter of 21 November 2013 specifies the date, time and place of the hearing. The letter is addressed to the applicant at the address the applicant specified in her application for review as the address to which the Tribunal should send correspondence about the applicant’s application. And, as I note above, there is evidence that shows the letter was dispatched on 21 November 2013, which obviously is within three working days of the date of the letter. Because of s.441C(4)(a) of the Act, the applicant is deemed to have received the letter 7 working days after the date of the document. Given the date of the letter is 21 November 2013, the applicant is deemed to have been given the letter seven working days after that date, namely, on 3 December 2013. That is more than 14 days before the appointed hearing day of 23 December 2013.

3. Thus, the preconditions for the exercise by the Tribunal of the power conferred by s.426A were satisfied, and the Tribunal could at the very least consider whether it should decide to make a decision without taking any further action to allow or enable the applicant to appear before it.

Did the Tribunal act unreasonably?

1. The power under s.426A is discretionary which means the legislature is taken to have intended that it will be exercised reasonably.[5]

   [5] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, at page 362 ([63]) (Hayne, Kiefel, and Bell JJ)

2. There is nothing in the material that suggests the Tribunal acted unreasonably in deciding to make a decision without taking any further action to allow or enable the applicant to appear before it. There is nothing that was before the Tribunal that could have suggested that the applicant did not receive the letter. In those circumstances, having sent the letter to the applicant according to the method prescribed by s.441A(4) of the Act, the Tribunal was entitled to assume the applicant received the letter; and the Tribunal was further entitled to assume the applicant did not wish to avail herself of the invitation to appear before the Tribunal at the appointed date and time to give evidence and present arguments.

Applicant’s submissions at the hearing

1. At the hearing before me each of the three grounds of review contained in the application were interpreted to the applicant, and I invited the applicant to make submissions in relation to each of the grounds. The applicant made submissions only in relation to the first ground. The applicant stated that she wanted another opportunity to attend an interview. When I asked on what grounds, the applicant said that she did not receive the letter from the Tribunal.

2. Even if the applicant were to have made that statement on oath, I would not have accepted the applicant did not receive the Tribunal’s letter. In any event, whether or not the applicant received the letter is not relevant to whether the Tribunal could exercise the power under s.426A of the Act. Subsection 441C(4) of the Act provides that if a document has been given to a person by the method provided for in s.441A(4), the person “is taken” to have received the document in the time stated in that subsection. And, at least in the absence of any evidence that suggests the Tribunal was aware before it decided the application for review that the applicant did not receive the invitation, the fact the applicant may not have received the letter cannot affect the reasonableness of the Tribunal’s exercising the power under s.426A of the Act as it did.

Conclusion

1. The Tribunal made no jurisdictional error by deciding under s.426A of the Act to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

2. I propose, therefore, to dismiss the application and order that the applicant pay the Minister’s costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 26 March 2015