SZTUU v Minister for Immigration and Border Protection
[2015] FCA 886
•12 August 2015
FEDERAL COURT OF AUSTRALIA
SZTUU v Minister for Immigration and Border Protection [2015] FCA 886
Citation: SZTUU v Minister for Immigration and Border Protection [2015] FCA 886 Appeal from: SZTUU v Minister for Immigration & Anor [2015] FCCA 698 Parties: SZTUU v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 368 of 2015 Judge: RANGIAH J Date of judgment: 12 August 2015 Catchwords: MIGRATION – appeal from Federal Circuit Court – refusal to grant protection visa – where application to Refugee Review Tribunal decided in appellant’s absence – whether any jurisdictional error – appeal dismissed Legislation: Migration Act1958 (Cth) ss 36(2), 426A, 426A(1), 425, 425A, 425A(3), 426A(1A)(a), 436A and 441A(4)
Migration Regulations 1994 (Cth) reg 4.35D(3)Date of hearing: 12 August 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 15 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Counsel for the Respondents: The respondents did not appear
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 368 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTUU
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
12 AUGUST 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The name of the second respondent be amended to “Administrative Appeals Tribunal”.
2.The appeal is dismissed.
3.There be no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 368 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZTUU
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE:
12 AUGUST 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from a judgment of the Federal Circuit Court of Australia. That Court dismissed the appellant’s application for constitutional writs directed to the Refugee Review Tribunal (“the Tribunal”). The Tribunal had affirmed a decision of a delegate of the first respondent to refuse the appellant a Protection (Class XA) visa.
The first respondent has not appeared at the hearing of the appeal. The appeal has proceeded in the absence of any representation for the first respondent, although I have taken into account written submissions filed on behalf of the first respondent.
The grounds set out in the notice of appeal are:
1. I was not giving an interview.
2. I was not giving an opportunity to present my evidence.
3. I should be giving my story to the RRT and Immigration Department.
(Errors in original.)
These are the same grounds relied on by the appellant before the Federal Circuit Court. The grounds of appeal appear to assert that the appellant was denied procedural fairness before the Tribunal.
The appellant’s complaint stems from the fact that the Tribunal decided her application in her absence when she did not appear at the hearing and without giving her the opportunity to participate in an interview.
The appellant’s application to the Tribunal nominated her address for correspondence as PO Box 1535, Auburn, New South Wales. On 21 November 2013 the Tribunal sent a letter to the appellant at that address inviting her to appear before the Tribunal and present arguments on 23 December 2013. The appellant did not appear at the hearing.
The Tribunal decided that the requirements of s 426A(1) of the Migration Act1958 (Cth) were satisfied and it proceeded to decide the application. The Tribunal found that the appellant’s claims were vague, lacking in detail and unpersuasive. The Tribunal decided that the criteria in s 36(2) of the Migration Act were not satisfied. Accordingly, it affirmed the decision under review.
Before the Federal Circuit Court, the appellant claimed that she had not received the Tribunal’s letter inviting her to attend the hearing. The primary judge held that whether or not the appellant received the letter was not determinative. His Honour held that, at least in the absence of any evidence that the Tribunal was aware the appellant had not received the letter, the fact that she had not received it did not affect the reasonableness of the Tribunal’s exercise of power under s 426A of the Migration Act.
Before this Court the appellant repeated her submission that she had not received the letter from the Tribunal. She contends that she should have been given the opportunity to attend an interview with the Tribunal.
Section 425 of the Migration Act provides, relevantly:
(1)The Tribunal must invite the 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 426A provides, relevantly:
Scope
(1) This section applies if the applicant:
(a)is invited under section 425 to appear before the Tribunal; but
(b)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.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a)by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
…
In this case, the Tribunal was satisfied that the appellant had been invited under s 425 to appear before the Tribunal and that she had not appeared. Section 425A provides, relevantly:
(1)If the applicant is invited to appear before the Tribunal, 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.
(2) The notice must be given to the applicant:
(a)except where paragraph (b) applies–by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention–by a method prescribed for the purposes of giving documents to such a person.
(3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.
Under s 441A(4), one of the methods of giving a document consists of an officer of the Tribunal dating the document and dispatching it within three working days of that date by prepaid post to the last address for service provided to the Tribunal. Regulation 4.35D(3) of the Migration Regulations 1994 (Cth) prescribes the period of notice for s 425A(3) to be 14 days after the person receives the notice of invitation to appear.
The Tribunal decided that the requirements of s 426A were satisfied. The appellant has not demonstrated an error of any kind in the Tribunal’s decision. The Tribunal was entitled to proceed pursuant to s 426A(1A)(a) to make a decision on the review without taking any further action to allow or enable the appellant to appear before it. Neither has the appellant demonstrated any error in the judgment of the Federal Circuit Court.
The appeal must be dismissed. In the absence of any appearance for the first respondent, I will make no order as to costs.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 3 September 2015
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