SZUIG v Minister for Immigration
[2015] FCCA 559
•3 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUIG v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 559 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – applicant failed to attend hearing before Tribunal to give evidence and present argument in response to invitation sent by the Tribunal – whether it was open to the Tribunal 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 acted unreasonably in deciding to exercise the power under s.426A of the Migration Act 1958 (Cth) - no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.425, 425A, 425A(1), 425A(2), 425A(3), 426A, 441A, 441A(4), |
| SZLBE v Minister for Immigration and Citizenship [2008] FCA 1789 |
| Applicant: | SZUIG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1277 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 3 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2015 |
REPRESENTATION
| Applicant in person assisted by an interpreter. |
| Solicitors for the Respondent: | Ms E Warner-Knight of Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1277 of 2014
| SZUIG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant, who is a national of the People’s Republic of China and a resident in the Hong Kong Special Administrative Region, seeks judicial review of a decision of the second respondent who affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The alleged facts on which the applicant applied for a protection visa are as follows:
a)The applicant married in 1996. Unexpectedly, in 2010, she discovered her husband was addicted to gambling.
b)She was abused by her husband in 2010 and the applicant indicated she intended to divorce him. After initially deciding not to divorce her husband, the applicant resolved to divorce her husband no matter what.
c)Her husband became furious when he found out and the applicant feared the husband would harm her and her family if she proceeded with her intention to divorce him.
d)The applicant applied for a visa to Australia to escape from her husband. After the applicant arrived in Australia her husband found out and he became angry and threatened to kill her family if she did not return to China.
The delegate refused to grant the applicant a protection visa because the delegate was unable to make findings on the applicant’s credibility. The delegate noted the applicant did not attend an interview, and otherwise noted the applicant’s claims were vague.
By letter dated 7 March 2014 the Tribunal invited the applicant to appear before it on 4 April 2014 to give evidence and present arguments. On 28 March 2014 a Tribunal officer contacted the applicant with the use of an interpreter. The applicant confirmed she received the hearing invitation, and she knew her hearing was scheduled to occur on 4 April 2014 and that she would attend the hearing. The applicant, however, did not appear at the scheduled hearing. The Tribunal decided pursuant to section 426A of the Migration Act 1958 (Cth) (Act) to decide the applicant’s review without taking any further action to allow or enable the applicant to appear before it.
In its reasons the Tribunal described the applicant’s claims and referred to the applicant’s not attending an interview before the delegate. The Tribunal then observed that the applicant’s claims were vague, unsubstantiated, and, in the absence of further details, amounted to mere assertions. The Tribunal further noted that by not attending before it, the applicant had not provided the Tribunal with an opportunity to explore with the applicant her claims. The Tribunal identified the questions regarding the applicant’s claims which remain unanswered.
The Tribunal concluded it was not satisfied on the limited evidence that was before it that the applicant was a victim of domestic violence or that her husband had threatened to kill her family if the applicant does not return to Hong Kong or that there is any basis for the applicant to fear harm from her husband or anyone else if she returned to Hong Kong.
The application for review raises three grounds. The first is “RRT has bias against me”. There is nothing in the material that is before the Court to support that claim. The ground therefore fails.
When I asked the applicant, who is not legally represented, whether she had any submissions to make in relation to ground one, the applicant said that she was scared that the Immigration Department will say she is not a refugee and that she was afraid that there would be prejudice against her because she is a refugee. None of those submissions make good ground one of the application or otherwise disclose any jurisdictional error on the part of the Tribunal.
The second ground in the application is “RRT failed to give me another hearing”. I have taken this ground to be a complaint that the Tribunal proceeded to make a decision without making any further attempt to invite the applicant to appear before the Tribunal to present evidence and argument.
As I have already stated, the Tribunal relied on s.426A of the Act to decide not to take any further action to allow or enable the applicant to appear before it. The Tribunal could only have been entitled to do that if the Tribunal had first given the applicant an invitation to appear before it under s.425 of the Act in the manner required by s.425A of the Act. Under s.425A(1) of the Act 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.
Under s.425A(2) of the Act a notice under s.425 must, where the applicant is not in detention, be given in one of the ways specified in s.441A of the Act. One of the means allowed in s.441A is that provided by s.441A(4), that is by an officer of the Tribunal dating the notice and despatching it within three working days of the date of the notice by prepaid post 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. That period has been prescribed under reg.4.35D(3) of the Migration Regulations 1994 to be 14 days after the day a person receives notice of the invitation to appear.
The Tribunal’s letter of 7 March 2014 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. There is no evidence, however, that the Tribunal despatched the letter by prepaid post within three days of its date. That, however, does not by itself entitle me to find the Tribunal did not despatch the letter within the time required by s.441A(4) of the Act.
The onus is on the applicant to show the Tribunal failed to despatch the letter within three days of its date. There is nothing before the Court to suggest the Tribunal failed to despatch the letter within three days of its date. Given I am not satisfied the Tribunal did not give the applicant notice of the scheduled hearing of 4 April 2014, I am satisfied the Tribunal had power under s.426A of the Act to make a decision on the applicant’s case without making any further attempt to invite the applicant to appear before the Tribunal to present evidence and argument.
I am also satisfied there is nothing in the material before me that could indicate the Tribunal acted unreasonably in deciding to exercise the power under s.426A in the manner it did. Before me the applicant submitted that she wanted another opportunity to present her case. The applicant submitted that she was entitled to be given such opportunity but she could not understandably articulate any arguable grounds on which she could submit she was entitled to be given another opportunity by the Tribunal to again reconsider her case. There is nothing before me which indicates that the applicant is entitled to have her case reconsidered by the Tribunal. Ground two therefore also fails.
The third ground stated in the application is: “I was sick and couldn’t attend the scheduled hearing”. Before me the applicant said she had “heartache” and for that reason could not attend the Tribunal hearing. She acknowledged that she did not contact the Tribunal but she said that she didn’t know who to ring.[1] There is otherwise no evidence that the applicant was sick or that she was unable to attend the scheduled hearing before the Tribunal because she was sick. And there is no evidence the applicant informed or attempted to inform the Tribunal she was sick and for that reason could not attend the hearing.
[1] The audio recording of the hearing actually records the applicant said “I didn’t know which telephone to ring, I couldn’t get through by telephone”.
Even if the applicant were sick as she claims it cannot reasonably be argued the Tribunal acted unreasonably in exercising its power under s.426A to make a decision without making any further attempt to invite the applicant to appear before it to present evidence and argument if the applicant did not contact the Tribunal and inform it she was sick. Ground three also fails.
In these circumstances I propose to make an order dismissing the application and an order that the applicant pay the Minister’s costs.
RECORDED : NOT TRANSCRIBED
When I completed delivery of my reasons for decision, Ms Warner-Knight, the solicitor for the Minister, submitted that I may have made an error of law. The potential error of law relates to what I said about ground three. The potential error is that I dealt with that ground on the assumption that what the applicant said from the bar table about her inability to attend the Tribunal hearing through sickness was true.
There are two potential errors. The first is what the applicant said from the bar table about her sickness is not evidence; and, the second error is based on what was said in SZLBE v Minister for Immigration and Citizenship[2] about the potential impact of an applicant’s being unwell to that applicant’s being given the opportunity to participate in a hearing before the Tribunal.
[2] SZLBE v Minister for Immigration and Citizenship [2008] FCA 1789
When these matters were raised there was some discussion about the word “heartache” that the interpreter used to interpret the sickness the applicant claimed she had which prevented her from attending the Tribunal hearing. Although the interpreter was unsure, she said that perhaps the proper word was “coronary disease”. After I adjourned to consider this part of my reasons that I am now delivering, the interpreter said that the correct interpretation of the word she had initially interpreted as “heartache” was “angina”.
I asked the applicant a number of questions, the effect of the answers to which are as follows:
a)She said she did have medical evidence of her condition, but that evidence was in Hong Kong.
b)She said that she did not have any medical evidence of her suffering from the condition she said she suffered which prevented her from attending the Tribunal hearing.
c)She did say that she was suffering from the same condition today that she said she suffered on the day she did not show up to the Tribunal hearing.
There are therefore two questions I must consider. The first is whether I was entitled to assume for the purposes of this application the truth of what the applicant said from the bar table about her medical condition on the day she was required to appear before the Tribunal. The answer to that question is obviously no. I was not so entitled to assume. What the applicant said from the bar table is not evidence.
That means that when dealing with ground three of her application I must deal with it on the basis that there is no evidence before the Court which shows that the applicant was sick on the day of the Tribunal hearing, and which prevented her from attending that hearing. For that reason alone ground three must fail.
Perhaps not learning my lesson well enough, I propose also to consider whether what the applicant has said about her condition is such as would give rise to jurisdictional error on the part of the Tribunal. In that regard the applicant, as I have said before, indicated to me that she is suffering now – that is to say before me – the same condition she said she suffered at the time she was required to appear before the Tribunal.
From my observations of the applicant I am not satisfied that the condition she manifests in participating in this proceeding is such which prevented the applicant from attending the scheduled hearing before the Tribunal and otherwise prevented her from effectively participating in a hearing before the Tribunal and, in particular, giving evidence and providing submissions to the Tribunal in support of her case. I therefore conclude that even if the applicant did suffer from the medical condition she claims she suffered, the Tribunal did not act unreasonably in deciding the application for review pursuant to s.426A of the Act without making any further attempt to invite the applicant to appear before the Tribunal to present evidence and argument.
I therefore again confirm that I propose to order that the application be dismissed and that the applicant pay the Minister’s costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 11 March 2015
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