SZUSB v Minister for Immigration

[2016] FCCA 2391

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUSB & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2391

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to invite the second applicant to its hearing.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

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

Migration Regulations 1994, reg.4.35D

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

First Applicant: SZUSB

Second Applicant: SZUSC

Third Applicant: SZUSD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUANL

File Number: SYG 1928 of 2014

Judgment of: Judge Cameron

Hearing date: 5 September 2016

Date of Last Submission: 5 September 2016

Delivered at: Sydney

Delivered on: 5 September 2016

REPRESENTATION

The Second Applicant appeared in person

Solicitors for the Respondents: Ms N. Blake of Clayton Utz

ORDERS

1. Order 3 made on 15 December 2014 be vacated.

2. The application, to the extent that it was brought by the second applicant, be dismissed.

3. The application, to the extent that it was brought by the first and third respondents, be dismissed pursuant to rule 13.0C(1)(c) of the Federal Circuit Court Rules 2001.

4. The second applicant pay the first respondent’s costs fixed in the amount of $6,646.00.

5. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1928 of 2014

SZUSB

First Applicant

SZUSC

Second Applicant

SZUSD

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction     

1. The second applicant is a citizen of India who arrived in Australia on 26 April 2012.  Her husband and their son, the first and third applicants respectively, also citizens of India, arrived in Australia in October 2012.  On 4 June 2013 the applicants lodged applications for protection visas with what is now the Department of Immigration and Border Protection.  The first applicant was the primary visa applicant whilst the second and third applicants were included in the application as members of his family unit.  

2. On 16 December 2013 a delegate of the first respondent (“Minister”) refused the applicants’ applications for protection visas. They then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision but were unsuccessful. On 10 July 2014 the applicants applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.  Subsequently, the first and third applicants departed Australia and returned to India.    

3. In these judicial review proceedings the Court cannot rehear the applicants’ application for visas. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

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

Background facts

1. As indicated earlier, the first applicant was the primary visa applicant for the protection visa.  His claims were summarised by the Minister in his written submissions in the following terms:

   10.The primary applicant claimed to fear harm in India from Hindu extremists on account of his Catholic religious beliefs and involvement in Christian organisations.  The primary applicant claimed he was attacked by Hindu extremists in India.  Fearing for his safety he relocated to, where he claims he was again attacked.

   11.The primary applicant also claimed that after he married the [second] applicant and returned to Italy, the [second] applicant received a number of threatening phone calls from Hindu extremists relating to his Christian activities.  Those threatening calls, which were received by the [second] applicant while she remained in India, caused her to relocate to Italy to join the primary applicant.  Despite continuing to fear harm from the Hindu extremists, the primary applicant claimed they subsequently returned to India to make application for the [second] applicant to obtain a student visa to come to Australia.  The real purpose of the application was, however, to obtain safety from the Hindu extremists.

2. It should be noted that the first applicant did not claim that he was attacked in Italy, as referred to by the Minister in his written submissions.  Rather, he claimed that he had received threatening telephone calls.  Apart from this correction, I adopt the Minister’s summary.

3. It should also be noted that the first applicant submitted various documents in support of the application.

The Tribunal

1. The first applicant appeared before the Tribunal on 19 June 2014 to give evidence. 

2. After discussing the claims made by the first applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicants were persons to whom Australia had 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. The Tribunal’s findings and reasons were also summarised by the Minister in his written submissions. I adopt that summary:

   12.The Tribunal did not find the primary applicant to be a credible witness.  The Tribunal found that inconsistencies in the primary applicant’s oral submissions before the Tribunal, the evidence given at his Departmental interview, and the contents of his written statement were sufficient to impugn his central protection claim.  The Tribunal did not accept the primary applicant’s explanation that the inconsistencies were caused by his poor recollection, state of confusion, and difficulties with the interpreter.  The Tribunal did not accept that documents submitted by the primary applicant to corroborate his various claims overcame its credibility concerns and gave them no evidentiary weight.

   13.Nevertheless, the Tribunal was prepared to accept that the primary applicant and his family were Catholics.  As such, the Tribunal proceeded to assess whether that factual antecedent, without more, sounded in a real risk of harm to the primary applicant and his family.  In light of the country information before the Tribunal, the Tribunal was not persuaded that they would be harmed on account of their religion if they returned to India. …  (references omitted)

Proceedings in this Court

Second applicant

1. In her amended application the second applicant alleged:

   The RRT invited my husband, my child and I for the hearing.  Although I intended to attend the hearing I could not attend the hearing as I had faced abuse from my husband in a verbal, physical emotional and financial manner.  My husband prevented me from attending the hearing.  I therefore lost the opportunity to present my own case in respect of my refugee convention and complementary protection claims before the RRT for me in Australia.  The RRT did not invite me, after my husband’s hearing, for a separate hearing and/or to make submissions in writing in respect of my claims for my protection/complimentary [sic] protection in Australia.  Therefore the RRT failed to exercise its power that was required by law in my circumstances.  This honourable Court should send my case back to the RRT for a new hearing in which I can provide my own Convention claims and/or complementary protection claims which I have with independent evidence.  I have attached herewith a summary of my Convention/complementary protection claims.  

2. The second applicant gave evidence at the hearing of this application, reiterating what she had said in an affidavit she had deposed on 1 September 2016, to the effect that she had been unaware of the hearing invitation sent by the Tribunal because, although it had been sent to a post office box in her name, her husband had taken the key to the post office box and she had been denied access to it.  Her evidence was, and I accept, that she did not have access to the post office box and was unaware that the Tribunal had written advising of the hearing date to which she, the first and the third applicants were invited.

3. I also accept the second applicant’s evidence that had she known of the Tribunal hearing, she would have wished to have appeared before the Tribunal in order to recount instances of domestic violence which she said she had suffered.  I note that the second applicant’s claims to have suffered domestic violence are corroborated by annexures to her affidavit of 1 September 2016.  I appreciate the Minister’s submissions that that evidence would seem to be contradictory of the passive attitude which the second applicant had plainly taken to the protection visa application process and to the Tribunal review process.  Nevertheless, as I say, I accept the second applicant’s evidence that she would have wished to raise that matter.  I was impressed by her as a witness and accept her evidence.

4. I was originally concerned that the late involvement of a migration agent may have affected the efficacy of the hearing invitation sent to the applicants because, following the Tribunal’s letter of 5 May 2014 inviting the applicants to attend the Tribunal hearing in June 2014, there was correspondence from the migration agent endeavouring to postpone the hearing date.  I was distracted by that correspondence and only latterly realised that, in fact, the hearing date had never changed from the one which had been originally notified to the applicants in the Tribunal’s letter of 5 May 2014.

5. The relevant fact is therefore that the Tribunal did write to the applicants at the address nominated in the review application lodged with the Tribunal and, although I cannot identify any evidence that the letter was actually sent within three days of the date of the letter, I am willing to assume that it was. 

6. On that basis, the notification of the Tribunal hearing to the applicants appears to me to have met the notification criteria found in ss.425A, 441A and 441C of the Act and reg.4.35D of the Migration Regulations 1994.  Therefore, the denial of procedural fairness which the second applicant alleged in her amended application, namely, that the Tribunal had not invited her to attend the hearing, cannot be made out.  The steps taken by the Tribunal satisfied its notification obligations.  If the second applicant was not aware of the invitation, and I am willing to find that she was not, that cannot affect the efficacy of the notification which is deemed to have occurred by reason of the statutory and regulatory provisions to which I have referred. 

7. For these reasons, I find that the second applicant has not demonstrated jurisdictional error on the part of the Tribunal in the manner alleged, and so the application as far as she is concerned will be dismissed. 

First and third applicants

1. Next, I need to consider the position of the first and the third applicants. 

2. On this matter’s first court date on 4 August 2014, there was no appearance by or for any of the applicants.  The affidavit of Esther Louise Dwyer of 29 August 2016 indicates that the first and the third applicants departed Australia on 3 August 2014.  In the circumstances it is not surprising that there was no appearance by any of the applicants on 4 August 2014. 

3. The matter was stood over to 11 August 2014 and on that occasion the second applicant appeared.  As I recall it, and as also recorded in the report of listing on the court file, the second applicant believed that the first and third applicants had departed Australia for India.  They have played no role in this case. 

4. On 15 December 2014 I granted the second applicant leave to file an amended application and I also directed that the name of the file be amended to record her as the sole remaining applicant.  That latter order was in error and I vacate it.  The title of the proceedings should return to one which it originally had. 

5. It is apparent that the first and the third applicants are no longer in Australia.  I note that they did not appear on the first return date, a date of which the first applicant was aware.  At the suggestion of the Minister, I propose to dismiss the application to the extent that it was brought by the first and the third applicants and to do so by reason of their non-attendance on 4 August 2014.  Given the circumstances, I see no reason why an order should not be made in that connection nunc pro tunc. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 13 September 2016