SZVGD v Minister for Immmigration

[2015] FCCA 2898

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVGD v MINISTER FOR IMMMIGRATION & ANOR [2015] FCCA 2898

Catchwords:
MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 425, 425A, 426A, 441A, 441C

Migration Regulations 1994 (Cth)

Minister for Immigration v SZFHC [2006] FCAFC 73

Applicant: SZVGD

First Respondent: MINISTER FOR IMMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2794 of 2014

Judgment of: Judge Driver

Hearing date: 27 October 2015

Delivered at: Sydney

Delivered on: 27 October 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A Day of DLA Piper

INTERLOCUTORY ORDERS

1. The name of the second respondent is amended to the “Administrative Appeals Tribunal”.

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2794 of 2014

SZVGD

Applicant

And

MINISTER FOR IMMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 17 September 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is from India.  Background facts relating to his protection claims and the decision of the Tribunal on them is set out in the Minister’s outline of submissions filed on 20 October 2015. 

3. The applicant is a male citizen of India born on 2 February 1982.[1]

   [1] Court Book (CB) 27

4. The applicant applied for a protection (Class XA) visa on 26 July 2013.[2]  His claims were set out in his application.[3]

   [2] CB 1-26

   [3] CB 18-21

5. The applicant claimed to fear harm in India by a local political leader on the basis that he was arranged to marry the leader's daughter, yet chose to marry another woman instead because they were in love.  He claimed his family opposed the marriage and that they were now in hiding as a result of his inter-religious marriage

6. The applicant failed to attend his interview scheduled with the Minister’s Department for 29 January 2014.[4]

   [4] CB 43

7. On 3 February 2014, a delegate of the Minister refused to grant the visa[5] on the basis that there was insufficient information to make any findings of fact in relation to the applicant's claims.[6]

   [5] CB 40-48

   [6] CB 43

8. The applicant applied to the Tribunal for review of the delegate's decision on 25 February 2014.[7]  The applicant provided a copy of the delegate’s decision to the Tribunal with his application for review.[8] 

   [7] CB 49-54

   [8] CB 59-67

9. The Tribunal wrote to the applicant on 6 August 2014 inviting the applicant to attend a hearing on 16 September 2014.[9]  This letter was sent by registered post to the mailing address given by the applicant on his Application for Review.[10] 

   [9] CB 71-77

   [10] CB 52; affidavit of Nicole Marie Maddocks affirmed on 16 January 2015 (Maddocks Affidavit) at Annexure A

10. The applicant did not reply to the letter and did not attend the hearing on 16 September 2014.[11]

    [11] CB 79-82; 85 see [3] of the decision record

11. The Tribunal proceeded to make its decision on 17 September 2014,[12] without taking further action to enable the applicant to appear before it, pursuant to s.426A of the Migration Act 1958 (Cth) (Migration Act).[13]

    [12] CB 84-88

    [13] see [3]

12. The Tribunal sent a letter to the applicant notifying him of the outcome of its decision on 18 September 2014.[14]  

    [14] CB 83

The Tribunal’s decision

1. The Tribunal noted that it had various questions it wished to ask the applicant[15] and that, in the absence of a chance to do so, rejected the entirety of the applicant's claims.[16] 

   [15] see [13]

   [16] CB 87 at [14]

2. The Tribunal concluded that the applicant did not satisfy the criteria for grant of the visa in s.36(2)(a) or in s.36(2)(aa) of the Migration Act.[17]

   [17] CB 87 at [15], [19]

The present proceedings

1. These proceedings began with a show cause application filed on 8 October 2014.  The applicant continues to rely upon that application.  The ground in that application is reproduced at [15] of the Minister’s submissions:

   1. I was not able to attend my hearing and I was not allowed to submit more evidence.  My application was not fully considered.

2. The applicant has not taken up the opportunity I afforded him on 19 November 2014 to file and serve an amended application or additional evidence. 

3. At the outset of today’s hearing, the applicant sought an adjournment of four to five weeks to obtain legal representation.  He explained that, because of his lack of familiarity with the English language, he had not had a sufficient opportunity to prepare for today’s hearing.  I declined that request, noting the length of time that the application had been before the Court and the fact that the applicant had signed and consented to the orders that I made on 19 November 2014.  The applicant had attended that directions hearing with the assistance of a Hindi interpreter.

4. I received into evidence the applicant’s affidavit made on 17 September 2014, the court book filed on 3 December 2014 and the affidavit of Nicole Marie Maddocks made on 16 January 2015. 

5. Ms Maddocks deposes as to the circumstances of the dispatch of the Tribunal’s hearing invitation to the applicant.  She was not required for cross-examination. 

6. The applicant also drew to my attention that he had not received the court book.  Exhibit R1 is a letter dated 3 December 2014 from the Minister’s solicitors to the applicant at his nominated address for service, providing a copy of the court book.  The applicant conceded that it was possible that that letter was delivered to his address but said that, because of his lack of familiarity with the English language, or possibly because the correspondence was taken by someone else, it had not come to his attention.  I provided the applicant with the original court book from the court file.  I am satisfied that the applicant has not been disadvantaged by the late provision of the court book.

7. I explained to the applicant the issues, as I saw them, bearing upon this case.  The central issue is the applicant’s non-attendance at the Tribunal hearing which, in effect, predetermined the outcome of the review, given that the Tribunal was unable to make a favourable decision on the papers alone.

8. The court book and the affidavit of Ms Maddocks establish that the hearing invitation was sent in accordance with the requirements of the Migration Act and Migration Regulations 1994 (Cth) (Regulations). Accordingly, the applicant was deemed to have received the hearing invitation, whether or not he in fact received it. Even if those requirements had not been met, it does not appear that there would have been any consequential procedural unfairness. The applicant conceded from the bar table that it was entirely possible that the hearing invitation was delivered to his address. He has no recollection of it, apparently because of his lack of familiarity with the English language.

9. It appears that the applicant made no arrangement, either for the purpose of his review application to the Tribunal or indeed for the purpose of his application to this Court, for correspondence to be read to him by someone fluent in the English language.  That has put him at an obvious disadvantage but could not support any assertion of jurisdictional error.

10. The Tribunal records at [3] of its decision that, in the circumstances presented to it, following the non-attendance of the applicant at the time and place scheduled for the hearing, it elected, pursuant to s.426A of the Migration Act, to make its decision without taking any further action to enable the applicant to appear before it.

11. I asked the applicant whether he at any stage followed up his review application with the Tribunal to see what was happening to it.  He told me from the bar table that he did not make any inquiry of the Tribunal.  I have no reason to disbelieve him.

12. It follows, in my opinion, that there was nothing before the Tribunal to suggest that it might be inappropriate for the Tribunal to exercise its discretion to proceed to make its decision.  I see no arguable case of error in the Tribunal’s approach.  I otherwise agree with the Minister’s submissions.

13. Pursuant to s.425 of the Migration Act, the Tribunal invited the applicant to attend a hearing scheduled for 16 September 2014 by letter dated 6 August 2014 and addressed to the applicant.

14. The hearing invitation dated 6 August 2014 specified the date, time and location of the scheduled hearing as required by s.425A(1) of the Migration Act, and contained a statement to the effect of s.426A as required by s.425A(4) of the Migration Act.

15. Section 425A(2)(a) of the Migration Act requires that the hearing invitation is given to the applicant by a method specified in s.441A. On its face, the hearing invitation was sent to the applicant by the method specified in s.441A(4); namely, by prepaid post to the last address for service provided to the Tribunal by the applicant in connection with the review.

16. Section 441A(4)(a) requires that the hearing invitation is dated and dispatched within three working days of the date of the document. The hearing invitation was dated 6 August 2014 and was dispatched on 7 August 2014.[18] As such, the hearing invitation was sent in compliance with s.425(2)(a) of the Migration Act.

    [18] CB 71; Maddocks Affidavit at Annexure A

17. Section 425A(3) and Regulation 4.35D of the Regulations require that the hearing invitation give the applicant at least 14 days notice of the hearing. Section 441C(4) provides that if a document is given to a person by the method set out in s.441A(4), then the person is deemed to have received that document 7 working days after the date of the document. As the letter was dispatched in accordance with s.441A(4), the applicant is deemed to have received the hearing invitation on 17 August 2014. The applicant was therefore given more than 14 days' notice of the hearing listed on 16 September 2014.

18. In circumstances where the Tribunal hearing invitation complied with the statutory requirements as to content and dispatch provided in the Migration Act and Regulations, it was open to the Tribunal to proceed in accordance with s.426A and exercise its discretion to make a decision on the basis of the material before it.

19. The Tribunal acted reasonably in the exercise of its discretion under s.426A. This is particularly in circumstances where the applicant failed to attend an interview with the delegate of the Minister to discuss his claims, and there was no indication from the applicant that he had any desire to appear before the Tribunal. Further, the Tribunal is under no obligation to make any inquiry as to the failure on the part of an applicant to appear.[19] 

    [19] Minister for Immigration v SZFHC [2006] FCAFC 73 at [38]-[39]

20. In circumstances where the Tribunal complied with its statutory obligations pursuant to Division 4 of Part 7 of the Migration Act, the applicant's assertion that he was unable to attend the scheduled hearing is, with respect, irrelevant.

21. Further, the applicant asserts that he was not allowed to submit further evidence to the Tribunal.  There is nothing to suggest that the applicant sought to provide any evidence to the Tribunal or that he was denied such an opportunity.  To the contrary, letters sent to the applicant made clear that he could present material at the hearing, and at any stage of the review.  For example, the acknowledgement of application letter dated 4 March 2014 sent to the applicant stated “If you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible”.[20]  The hearing invitation letter further advised the applicant he could submit evidence at hearing and/or attach any additional information to the “Response to hearing invitation” that he wished for the Tribunal to consider.[21] 

    [20] CB 68-69

    [21] CB 71-72

22. The Tribunal dealt with the applicant's claims and made findings of fact reasonably open to it, on the evidence and material before it.

23. I conclude that the applicant has failed to demonstrate any arguable case of jurisdictional error by the Tribunal. I will accordingly order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

24. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale.  The scale amount at the time the application was filed was $3,326.  The applicant claims he is impecunious, but, as has been repeatedly stated, that is not a reason for the court to refrain from making a costs order.

25. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  29 October 2015