SZUIB v Minister for Immigration
[2015] FCCA 979
•14 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUIB v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 979 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether the Tribunal failed to consider “critical and significant relevant materials” provided by the applicant after the date on which the Tribunal dispatched its reasons for decision – whether the Tribunal failed to accord procedural fairness to the applicant by making its decision before support letters were received – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.430A, 441A, 441C(4) |
| Minister for Immigration v SZQOY [2012] FCAFC 131 Minister for Immigration v SZRNY [2013] FCAFC 104 SZRNJ v Minister for Immigration [2014] FCCA 782 |
| Applicant: | SZUIB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1250 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 14 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 14 April 2015 |
REPRESENTATION
| Applicant in person assisted by an interpreter and represented by her husband. |
| Solicitors for the Respondent: | Ms D Watson of Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1250 of 2014
| SZUIB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
In an amended application for review filed on 14 September 2014 the applicant, who is not legally represented, claims the second respondent (Tribunal), failed to consider an article that had been published in the Sunday Telegraph, and acted contrary to a representation the applicant claims the Tribunal made that it would wait until it received the article from the applicant before it would write its decision.
The ground stated in the amended application for review is narrower than the ground stated in the application as initially filed on 12 May 2014. In that form of the application, the applicant claimed she informed the Tribunal at the hearing that the applicant and her husband had documents and materials relevant to her claims that she wanted to put before the Tribunal, and the Tribunal informed the applicant that she should fax them to the Tribunal, and the Tribunal informed the applicant it would wait for the documents before it would make the decision. In these reasons, I will also consider the ground as initially stated in the application for judicial review that was filed on 12 May 2014.
The determination of the applicant’s claims largely turns on what occurred at the hearing before the Tribunal on 23 April 2014. Before I consider what occurred at that hearing, it would be useful to set out the applicant’s claims for protection and the Tribunal’s reasons for rejecting those claims.
The applicant is a citizen of Tonga. Before the Tribunal the applicant claimed that in around 2002, when she was 16 years of age, her parents had arranged her marriage to an older man whom she did not wish to marry. The marriage was due to take place in December 2012. The applicant claimed she fears her parents will harm her if she returns to Tonga because she has not entered into the marriage and because she has instead married another person in Australia. She did not wish to seek the protection of the Tongan authorities because she did not wish to see her parents go to prison.
In a decision made on 24 April 2014, the Tribunal rejected the applicant’s claims because it did not find the applicant and the witness who supported the applicant’s claims (who was, in fact, her husband) to be credible. The Tribunal found the responses of the applicant and of the witness to questions asked by the Tribunal to be brief, vague, and evasive. The Tribunal found incredible the applicant’s claim that her parents arranged a marriage when the applicant was 16 years of age which was to take place some 10 years later. The Tribunal also found that the applicant travelled in and out of Tonga on a number of occasions without her parents’ supervision, and this belied the applicant’s claims she had been mistreated by her parents and was subject to their authority.
There is in evidence a transcript of the hearing before the Tribunal which reveals the following.[1] It was the applicant who first gave evidence. After the Tribunal member explained how and on what basis the Tribunal will make its decision on the applicant’s case, the Tribunal asked the applicant questions. The subjects on which the Tribunal questioned the applicant were the applicant’s travels in and out of Tonga, the applicant’s having married in Australia, the applicant’s employment in Australia, the reasons why the applicant provided to the Tribunal a copy of this Court’s reasons for judgment in SZRNJ v Minister for Immigration[2] (which I note was a decision in which the applicant’s husband was the applicant), and what the applicant believed would happen to her if she returns to Tonga.
[1] Affidavit of N Lam, 07.04.15, annexure “A”
[2] [2014] FCCA 782
The applicant’s husband then gave evidence. He explained the reason why the applicant could not go back to Tonga, and he was asked the grounds on which he had applied for protection and why he could not return to Tonga. Towards the end of the hearing, the following exchange took place:
Tribunal Member: . . . I’ve discussed with you my concerns, so if you have anything more that you wanted to provide in writing, then please do so.
Applicant’s Husband: oh I’ve got these the support letters from the church that was the only thing we forgot.
Tribunal Member: sorry?
Applicant’s Husband: the support letters
Tribunal Member: have you got those letters with you?
Applicant’s Husband: no, no, we forgot
Tribunal Member: do you want to send them to me? Can you bring them in tomorrow or send them in?
Applicant’s Husband: yes, yes.
Tribunal Member: okay . . . .
As I have already noted, the Tribunal gave its decision on 24 April 2014. The evidence before me establishes the Tribunal dispatched its reasons for decision to the applicant on 28 April 2014. There is no issue that the Tribunal’s decision was dispatched to the applicant according to one of the methods prescribed by s.441A of the Migration Act 1958 (Cth)[3] and that the decision was deemed to have been received by the applicant within 14 days after the day on which the Tribunal made its decision.[4] There is also no issue that the decision was given to the secretary within 14 days after the day on which the Tribunal made its decision. The significance of these matters is that after the day on which the Tribunal’s decision was dispatched, the Tribunal had fully exercised its power of review in relation to the applicant’s claims, and there was nothing further the Tribunal could lawfully do in relation to the applicant’s claims (see Minister for Immigration v SZRNY[5] and Minister for Immigration v SZQOY[6]).
[3] Which means that, by the application of s.441C(4) the applicant is taken to have received the decision by 7 May 2014.
[4] As required by 430A of the Act.
[5] [2013] FCAFC 104
[6] [2012] FCAFC 131
On 29 April 2014, one day after it dispatched its decision, the Tribunal received by fax three documents. One was a letter dated 26 April 2014 from an Anglican Church addressed to “To Whom It May Concern” requesting that the applicant be permitted to remain in Australia and acquire permanent resident status. The letter contains the names and signatures of around 100 persons. The second document was a letter of support dated 27 April 2014 from a person who described himself as a personal friend of the applicant, and who was a member of the same Anglican Church as the signatories who signed the letter dated 26 April 2014. The third document the Tribunal received is an article titled “An Unequal Marriage”. The article relates to a story of an Indian woman[7] who entered into a marriage arranged by her parents, as a result of which the woman suffered misfortune and abuse.
[7] This is incorrect. The article is about a woman from South East Asia.
As I have previously stated, the applicant is unrepresented. At the hearing, however, the applicant was accompanied by her husband, who applied to represent the applicant. I allowed the husband to appear on behalf of the applicant after the applicant informed me she consented to her husband representing her. During the hearing there was an interpreter who interpreted to the applicant what occurred at the hearing.
The applicant’s husband filed in Court written submissions. It was there submitted that the applicant and her husband:
…informed the Tribunal that there are relevant critical materials relevant to my claims that I want to put before the Tribunal for the Tribunal to have regard and take into account, and that the Tribunal should give me time to provide these materials.
It was further submitted in the written submissions that the Tribunal:
…obliged and promised to wait until it had received the materials before it will make its decision.
It was submitted that the Tribunal failed to do what it promised, and as a result failed to accord the applicant natural justice.
The transcript of the hearing before the Tribunal does not support what the applicant in her written submissions says occurred at the hearing. As I note above, the only documents that the applicant’s husband informed the Tribunal he wanted to send were support letters. Accordingly, to the extent the application for review relies on the written submissions, it cannot succeed.
I next turn to the grounds stated in the amended application. There is nothing in the transcript which suggests the applicant informed the Tribunal she would be providing to the Tribunal any article, and there is no suggestion that the Tribunal member indicated she would wait until the applicant provides to the Tribunal any article or other information before the Tribunal will give its decision. There is also nothing in the transcript which indicates the applicant’s husband informed the Tribunal he would be providing to it any article. For these reasons, the ground as currently stated in the amended application must also fail.
Finally, I turn to the grounds as stated in the initial application. The passage from the hearing before the Tribunal I have reproduced shows the applicant’s husband stated that the applicant and he had forgotten to provide support letters. The Tribunal asked the applicant’s husband to “bring them in tomorrow or send them in”. The question that arises is whether the Tribunal failed to accord the applicant procedural fairness by making its decision on 24 April 2014 in circumstances where on 23 April 2014 it informed the applicant’s husband that he could bring in the letters of support “tomorrow or send them in”.
The answer at least in part depends on how a person possessing the apparent capacities and characteristics the transcript reveals the applicant’s husband and the applicant possessed would have reasonably understood the Tribunal’s words “bring them in tomorrow or send them in”. Here there are two particularly relevant factors. The first is the applicant’s husband stating to the Tribunal that “I’ve got these the support letters from the church that was the only thing we forgot”. That is a statement that there already existed support letters and that the only reason those letters were not before the Tribunal was that the applicant and her husband had forgotten to bring them. The second relevant factor is the Tribunal using the word “tomorrow”. These two factors considered together would have indicated to a reasonable person in the position of the applicant and the applicant’s husband that the Tribunal had given the applicant until the following day to provide the letters of support.
It is true that the word “tomorrow” is attached to the words “bring them in” and is not attached to the words “send them in”. It would have been unreasonable, however, for a person in the position of the applicant and her husband to have interpreted what the Tribunal said as requiring the applicant to bring the documents in on one day yet send them in on an unspecified other and later day. The only reasonable interpretation of the Tribunal’s words would have been that the Tribunal allowed the applicant and her husband to bring in or send the support letters on the following day.
At the hearing before me the applicant’s husband submitted that the day after the hearing was a public holiday. I do not accept the applicant’s submission. There is no evidence that 24 April 2014 was a public holiday. That was a matter which the applicant needed to prove. Ms Watson for the first respondent asserted that 24 April 2014 was not a public holiday. To ensure that the applicant would not lose purely on the basis of the onus of proof I have taken the liberty to visit the New South Wales Government Industrial Relations website that lists New South Wales’ public holidays for 2014-2016.[8] The website does not record 24 April 2014 to be or to have been a public holiday.
[8] (Page accessed on 14 April 2015)
Even if, contrary to what I have concluded, the Tribunal’s words could reasonably have been interpreted as permitting the applicants to provide letters of support after the day following the day on which the hearing took place before the Tribunal, the applicant did not suffer any unfairness. The Tribunal permitted the applicant to provide to it support letters the applicant’s husband represented to the Tribunal the applicant already held, but which the applicant and her husband forgot to bring to the hearing. Neither the applicant nor her husband requested the Tribunal that the applicant be given time to obtain support letters, and the Tribunal did not give the applicant time to obtain support letters. There is no unfairness in the applicant not being provided time to do something which the applicant did not ask time to do.
For these reasons the grounds contained in the application as initially filed would fail.
For the reasons I have just given therefore I propose to order that the application be dismissed and that the applicant pay the first respondent’s costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 17 April 2015