SZULK v Minister for Immigration

[2015] FCCA 1538

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZULK v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1538

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – allegation that the Tribunal’s decision affected by jurisdictional error by reason that the applicant had not received notification of the Tribunal’s hearing.

Legislation:

Migration Act 1958, ss.36, 425, 425A, 441A, 474

Migration Regulations 1994, reg.4.35D
Federal Circuit Court Rules 2001, r.44.12

Cases cited:
General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Agar v Hyde (2000) 201 CLR 552
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: SZULK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1466 of 2014

Judgment of: Judge Cameron

Hearing date: 19 May 2015

Date of Last Submission: 19 May 2015

Delivered at: Sydney

Delivered on: 19 May 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents Ms M. Stone of DLA Piper Australia

ORDERS

1. Pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001 the application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1466 of 2014

SZULK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Lebanon who arrived in Australia on 17 November 2012.  On 15 January 2013 she lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that she feared persecution in Lebanon because she had married without her father’s approval.  On 8 August 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. The matter is before the Court for consideration of the applicant’s application that the respondents should show cause why relief should not be granted to her.

3. At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed (pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (“Rules”)) if the applicant does not have an arguable case against the respondents. The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576 [57]).

4. It should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, to be successful in the present application the applicant had to demonstrate that it was at least arguable that the Tribunal’s decision was effected by jurisdictional error.

5. For the reasons which follow, the application will be dismissed.

Background facts

Protection visa application

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa.  As summarised by the Tribunal, the applicant claimed that she feared returning to Lebanon because her father and family in Lebanon objected to her marriage which had occurred in Australia.  The applicant claimed that if she returned to Lebanon she would be homeless because her relatives and other people in her village had heard that she had married without her father’s approval and would not help her.  In support of her application the applicant provided a marriage certificate stating that she had married on 25 April 2013.

2. The delegate refused the applicant’s application on the basis that he was not satisfied that the applicant had married against her father’s wishes.

Tribunal proceedings

1. The applicant sought review of the delegate’s decision with the Tribunal.  In her application form to the Tribunal, the applicant provided as her contact details an address in Yennora, a suburb in Sydney, a mobile telephone number and an email address.  The applicant did not appoint a representative or authorised recipient and nominated her street address in Yennora and her email address as places to which correspondence from the Tribunal should be sent to her.

2. On 24 September 2013 the applicant faxed to the Tribunal a “Change of Contact Details” form updating her contact details by providing a facsimile number, a new residential address in Merrylands, also a suburb of Sydney, and a new mobile telephone number (which she also indicated was her daytime telephone number).  The applicant’s email address remained the same.

3. In a letter dated 18 February 2014 and addressed to the applicant’s Merrylands address advised in her “Change of Contact Details” form, the Tribunal invited the applicant to attend a hearing scheduled for 24 March 2014.

4. On 20 March 2014 the applicant’s husband telephoned the Tribunal and advised that he and the applicant were no longer living together and that he had all of her paperwork related to her Tribunal application.  A file note made by a Tribunal officer recorded that the applicant’s husband asked what the outcome would be if the applicant did not attend her Tribunal hearing.  The officer advised the applicant’s husband to put in writing anything which he wished to submit.

5. On 20 March 2014 the Tribunal again wrote to the applicant at her Merrylands address advising her that her hearing had been postponed and that she would be advised of a new hearing date when one became available.  An officer of the Tribunal telephoned the applicant on 21 March 2014 on the mobile number she had provided in her “Change of Contact Details” form and left a voicemail message through an interpreter advising her of the postponement of her hearing.  The same day the Tribunal also sent an email to the applicant at the email address that she had provided both in her application form and in her “Change of Contact Details” form advising her of the postponement of the hearing. 

6. On 25 March 2014 the applicant’s husband attended the Tribunal’s registry and provided a letter dated 20 March 2014.  The applicant’s husband advised the Tribunal officer who attended to him that his wife had submitted her “Change of Contact Details” form when she had been moving into his house but was no longer living with him at the Merrylands address.  He said that he had received the telephone message and email sent on 21 March 2014 which were intended for his wife.  The applicant’s husband said that he would telephone the Tribunal and provide a contact telephone number for his wife.  In his letter submitted to the Tribunal the applicant’s husband stated that he no longer lived with the applicant and intended to divorce her, that she had only married him in order to obtain a permanent visa to stay in Australia and that if she was granted such a visa she intended to bring her parents to Australia.  The applicant’s husband also stated that the applicant was unaware of her Tribunal hearing and they were not on speaking terms.  The applicant’s husband provided in his letter a contact mobile telephone number which was the same as the one provided by the applicant in her “Change of Contact Details” form.  

7. In a letter dated 27 March 2014 and sent to the applicant at the facsimile number she had provided in her “Change of Contact Details” form, the Tribunal invited the applicant to a rescheduled hearing on 28 April 2014.  The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on her application without further notice. 

8. On 1 April 2014 an officer of the Tribunal left a telephone message for the applicant requesting that she confirm her postal address.  The file note recording that event did not indicate the number on which the Tribunal officer attempted to contact the applicant.  A further file note dated 3 April 2014 indicated that a Tribunal officer attempted to telephone the applicant on her “previous mobile number” and left a message for her to contact the Tribunal.

9. On 7 April 2014 the Tribunal wrote to the applicant at the Merrylands address seeking her comments or response to the information which had been provided by her husband.  The applicant was advised that if the Tribunal did not receive a response by 30 April 2014 or within such extended time as might be granted, it might proceed to make a decision on the review without taking any further action to obtain her views on that information.  The Tribunal did not receive from the applicant a response to either the hearing invitation letter or to the letter seeking her comments or response and she did not appear before the Tribunal on the day and at the time she was scheduled to appear.  The Tribunal noted that it had not received any notification that the applicant had changed her residential address or that her marital status had changed.  In those circumstances, it proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it. 

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act.

2. While the Tribunal accepted that the applicant’s marriage to her husband had occurred, it found that the applicant had not provided sufficient details for it to be satisfied of the credibility of her claims.  It noted that without the opportunity to test the applicant’s credibility at a hearing and without receiving further evidence from her, it could not be satisfied that her relationship with her husband was genuine and continuing or that her family continued to be angry at her and to threaten her as a result of the marriage.  In the absence of further evidence about the possible support available to the applicant in Lebanon, the nature of the harm she feared and the likelihood of her father pursuing her beyond their local area, the Tribunal was not satisfied on the evidence before it that the applicant would be unable to relocate in Lebanon away from her father.  The Tribunal concluded that the applicant had not provided sufficient evidence to support her claims and consequently it was not satisfied that she had a well-founded fear of persecution for a Convention reason or that she faced a real risk of significant harm if she returned to Lebanon.

Proceedings in this Court

1. In the application commencing these proceedings the applicant alleged:

   1.The Tribunal failed to contact me.

   2.I received the decision on 23/5/2014.

   3.I wait for a copy of my file to understand why the Tribunal failed to contact me.  The lawyer as well as my husband are responsible to mislead me and the Tribunal and I was never been invited to attend a hearing.

2. Dealing with each of these in turn:

   a)the fact that the Tribunal did not succeed in making contact with the applicant prior to the hearing it scheduled is not, without more, demonstrative of jurisdictional error on the Tribunal’s part;

   b)the date on which the applicant received the Tribunal’s decision also does not provide any basis to conclude that that decision is affected by jurisdictional error; and

   c)the allegation that the applicant was not invited to the Tribunal’s hearing is doomed to failure because the evidence makes it clear that she was.  The allegation that the applicant and the Tribunal were misled is unparticularised and so, without more, would not support a finding of jurisdictional error.

3. The application, therefore, does not raise an arguable case for the relief claimed.

4. Notwithstanding that finding, it is appropriate to make some further comments on the Tribunal’s decision to proceed to a decision without hearing from the applicant.  The Tribunal attempted to make contact with the applicant on or about 18 February 2014, 20 March 2014, 21 March 2014, 27 March 2014, 1 April 2014, 3 April 2014 and 7 April 2014 variously by letter, telephone, facsimile and email.  Each attempted contact was made to an address or number provided by the applicant to the Tribunal, most particularly the contact points identified in her “Change of Contact Details” form. 

5. The Tribunal went to considerable effort to contact the applicant, although it does appear that it was unsuccessful.  However, the fact that the Tribunal was unsuccessful does not mean that its decision was affected by jurisdictional error.  Relevantly, the Tribunal sent its notification of the new hearing date to the only contact point which the applicant’s husband had not said would lead to him, rather than the applicant, receiving the notice, that is to say the facsimile number provided in the “Change of Contact Details” form.  Plainly the Tribunal was endeavouring to contact the applicant and the fact that it failed to do so does not appear to result from any failure on its part.

6. It appears implicit from the information in the Court Book, which was exhibit A, and the applicant’s submissions and general presentation at the hearing of this application that her husband did not facilitate the Tribunal’s communication with her and may even have prevented it. However, that cannot affect the outcome of the case before this Court. This is because I find that the fact that the facsimile was sent to the nominated facsimile number on 27 March 2014 for a hearing on 28 April 2014 satisfied the relevant statutory and regulatory requirements which permitted the Tribunal to proceed to a decision without a hearing, namely, ss.425, 425A and 441A(5) of the Act and reg.4.35D of the Migration Regulations 1994.

7. As the applicant’s application does not disclose an arguable case, it must be dismissed. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 5 June 2015