SZVHI v Minister for Immigration
[2016] FCCA 284
•4 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVHI v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 284 |
| Catchwords: MIGRATION – Application to review decision of the Administrative Appeals Tribunal (formerly the Refugee Review Tribunal) – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss. 425, 426A, 441AA, 441A, 441C Migrations Regulations 1994 (Cth), reg. 4.35D |
| Kaur v Minister for Immigration and Border Protection (2014) 141 ALD 619; [2014] FCA 915 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51; [2011] FCA 1358 SZRFC v Minister for Immigration and Citizenship & Anor [2012] FMCA 417 |
| Applicant: | SZVHI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2885 of 2014 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 28 October 2015 and 4 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 4 February 2016 |
REPRESENTATION
| The Applicant: | In person |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $7,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2885 of 2014
| SZVHI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application for review of a decision of the Administrative Appeals Tribunal, formally the Refugee Review Tribunal, dated 30 September 2014. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant sought protection by application lodged on 2 September 2013. The application was refused and she sought review by the Tribunal. In her review application she provided the Tribunal with an address for correspondence consisting of a specified post office box in Auburn, New South Wales.
The Tribunal wrote to the Applicant at that address on 23 July 2014 inviting her to attend a hearing on 12 September 2014. The letter included the information required under the Migration Act 1958 (Cth) (the Act) in relation to an invitation to a hearing under s.425 of the Act. Among other things, it informed the Applicant:
If you are not able to attend the hearing you should advise the Tribunal as soon as possible. Please note that the Tribunal will only change this date if satisfied that you have a very good reason for being granted an adjournment. If the Tribunal does not advise you that an adjournment has been granted, you must assume that the hearing will go ahead. If you do not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable you to appear before it.
The Applicant responded to the invitation letter. She returned a completed Response to Hearing Invitation form on 1 August 2014.
However, on 12 September 2014, the day of the scheduled hearing, the Tribunal received a medical certificate for the Applicant dated 11 September 2014 expressed in general terms stating that due to a “medical condition” the Applicant was unfit for work on 12 September 2014.
The Tribunal treated this as a request that the hearing be postponed. It wrote to the Applicant by letter dated 12 September 2014 (addressed to the same address as the hearing invitation) informing her that the presiding member had agreed to the request and that the hearing had been rescheduled to a specified time and place on 25 September 2014.
No response was received by the Tribunal to the letter of 12 September 2014. In its reasons for decision the Tribunal recorded that the Applicant did not appear before it on 25 September 2014 and did not contact it to explain her failure to attend or request that that hearing be rescheduled.
In these circumstances, the Tribunal decided to make its decision on the review without taking any further action to enable the Applicant to appear before it (see s.426A of the Act).
In its reasons for decision the Tribunal set out the basis on which the Applicant claimed to fear harm in China. It found that many questions about her claims about past harm remained unanswered and that her claims were vague, unsubstantiated and without detail and amounted to mere assertions. The Tribunal stated that if the Applicant had attended the hearing it would have had the opportunity to discuss her claims in more detail and test their veracity. It set out issues it would have raised with the Applicant and further information it would have sought had she attended the hearing.
The Tribunal referred to the fact that the initial hearing invitation letter had put the Applicant on notice of the fact that on the information before it the Tribunal was unable to make a favourable decision and that after she had provided a medical certificate which indicated that she was unfit for work on 12 September 2014 she had been invited to attend a rescheduled hearing and advised (in the letter of 12 September 2014) that if she did not attend the rescheduled hearing the Tribunal may make a decision without taking further action to allow or enable her to appear before it.
The Tribunal found that the evidence presented by the Applicant (about past harassment and adverse attention of the authorities because she complained about closure of her restaurant, and her claims that she was physically assaulted by gangsters and detained by the authorities) was not sufficiently clear, credible or detailed to enable it to be satisfied that the Applicant had suffered the harm she claimed to have suffered in the past or that there was any basis for concluding she would suffer any harm if she returned to China. It found it had insufficient evidence to be satisfied that the events and circumstances claimed were factual. It did not accept the Applicant’s claims. The Tribunal was not satisfied that if the Applicant were to return to China she would face “any harm for any reason”. It was not satisfied that the claimed past complaints, detention, assault and threats had occurred. Nor was it satisfied that she would face any harm because of debts she owed or because she would be forced to pay an outstanding fine. Nor was is satisfied that she would be motivated to complain about the actions of Chinese officials. For the same reasons, in the absence of sufficient detail, the Tribunal found that the Applicant did not meet the complementary protection criteria.
The Applicant sought review by application filed in this court on 17 October 2014. In the application she stated that she disagreed with the Tribunal decision not to grant her a protection visa. She claimed that in her circumstances if returned to China she would be arrested and not protected by the authorities. She sought review and the grant of a protection visa. The accompanying affidavit attached a copy of the Tribunal decision, but did not clarify the grounds of review. The Applicant did not file written submissions.
When this matter came before the court for hearing, the Applicant raised, for the first time, a claim that she did not receive the Tribunal letter of 12 September 2014 granting her request for a postponement and advising her of the adjourned hearing date. She agreed that it was addressed to her at her post office box address but claimed she checked the box and that the letter was not there. She did not contact the Tribunal after she sent the medical certificate.
Accepting these claims for present purposes, an issue arises as to whether the Tribunal fell into error in relation to the postponement invitation and the decision to proceed to make a decision without taking further action to enable the Applicant to appear before it.
The hearing was adjourned to enable the Minister to put on further evidence. The Minister filed and relied on an affidavit of John Macleod affirmed on 7 December 2015.
Mr Macleod is a team leader at the Tribunal with relevant supervisory responsibilities, including in relation to sending correspondence to review applicants. He attested to the online case management system and the Tribunal procedure in relation to dispatch of letters. Annexed to his affidavit is a copy of the postal dispatch register created on 12 September 2014 from which it can be inferred that the Tribunal’s letter of 12 September 2014 was dispatched to the Applicant that day. It indicates that mail in an envelope addressed to the Applicant (at the correct address) was physically received by the Tribunal’s mail room for collection by Australia Post and was collected by Australia Post on 12 September 2014.
The only substantive issue the Applicant raised was that she did not receive this letter. In oral submissions today she contended that the Tribunal should have sent the letter by registered mail.
Before dealing with these contentions, I note that the application for review does not raise any arguable ground of jurisdictional error. It seems to seek impermissible merits review. There is no challenge to the Tribunal reasoning. In any event, it was open to the Tribunal on the evidence before it to find that the claims that the Applicant made about past events, including harassment by the Chinese authorities, were not made out.
No issue is taken by the Applicant with the initial hearing invitation of 23 July 2014. As submitted for the First Respondent, that invitation complied with the requirements of ss.425 and 425A of the Act. It was addressed to the same P.O. Box as the letter of 12 September 2014. There is no evidence that it was sent by registered mail. It can be inferred that it was received by the Applicant because she responded to the invitation.
Under s.426A of the Act, if an applicant is invited under s.425 to appear before the Tribunal but does not appear on the day, time and place scheduled the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. However, it may postpone the Tribunal hearing. On the day the hearing was scheduled, 12 September 2014, the Tribunal received a medical certificate. At that point it decided to grant the Applicant the postponement sought. It was open to the Tribunal to proceed in that way. No issue is taken, and nor is any apparent, with the fact that the Tribunal decided to postpone the hearing as the Applicant sought. What is in issue is whether the events that followed involved jurisdictional error in any way.
A Tribunal discretion must not be exercised unreasonably (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1). In this case, the Tribunal wrote to the Applicant by letter that was sent by ordinary (rather than registered) mail. The provisions of the Act and Migrations Regulations 1994 (Cth) (including the prescribed period of notice in reg.4.35D) in relation to an invitation to a Tribunal hearing applied to the initial invitation. Such an invitation had to be given by one of the methods specified in s.441A of the Act. Section 441A(4) applies in relation to documents given by mail. It requires only prepaid post.
There was no statutory obligation on the Tribunal to send the postponement letter by registered mail. In some circumstances sending a letter to an applicant by ordinary post (rather than by registered mail) and then failing to take any further action where there was no reply to such a letter may well be such that a Tribunal may be seen to fall into jurisdictional error.
However this is not such a case. It has not been established that the Tribunal fell into jurisdictional error, whether in the manner in which it sent the letter agreeing to the postponed hearing, in notifying the Applicant of the adjourned date or in the reasonableness of the exercise of a discretion or otherwise.
The first hearing invitation (sent, it appears, by ordinary mail, as provided for in s.441A(4) of the Act) informed the Applicant that if the Tribunal did not advise her that an adjournment was granted she “must assume” the hearing would go ahead and that if she did not attend the scheduled hearing the Tribunal may make a decision without taking further action to allow or enable her to appear before it. The Applicant received this letter. She sent a medical certificate to the Tribunal, but there is no suggestion of any further follow up by her with the Tribunal. She did not attend the scheduled hearing – despite not having been advised that an adjournment was granted.
There is no specific provision of the Act in relation to letters postponing hearings and how they must be given. However it is apparent that the letter of 12 September 2014 was sent in accordance with a method provided for in s.441A of the Act (and see s.441AA). If a Tribunal gives a document to a person by one of the methods specified in 441A then, pursuant to 441C(4), where it is dispatched by prepaid post from a place in Australia to an address in Australia the person is taken to have received it seven working days after the date of the document.
Hence even if the Applicant did not in fact receive the postponement letter, she was taken to have received it on 23 September 2014, seven working days after 12 September 2014 (which was also its date of dispatch).
The hearing was rescheduled for 25 September 2014. I am satisfied that, as contended for by the Minister (and also see Ogawa v Minister for Immigration and Citizenship(2011) 199 FCR 51; [2011] FCA 1358 and SZRFC v Minister for Immigration and Citizenship & Anor [2012] FMCA 417) in this case reasonable notice was given of the rescheduled hearing having regard to the Tribunal’s compliance with the original notice period prescribed, the ample opportunity that the Applicant had before the original hearing date to prepare to participate in the hearing, and the opportunity she had from the time her application was first lodged to assemble materials in support of her claim. The Applicant had sought the postponement on the hearing date on the basis of ill-health for an undisclosed reason. The adjournment sought was at the Applicant’s instigation and convenience and not at the Tribunal’s instigation.
The fact that the letter of 12 September 2014 was not sent by registered post and that nothing else was done by the Tribunal after 12 September 2014 to contact the Applicant was not in these particular circumstances unreasonable. The Applicant was on notice from the letter of 23 July 2014 (sent to the same address) that if the adjournment was not granted she must assume the hearing would go ahead. She received that letter. The letter of 12 September 2014 was not returned to sender. It has not been established that the Tribunal acted unreasonably in failing to take some further steps to attempt to notify the Applicant of the adjourned date or to contact her when she failed to attend on 25 September 2014.
It was open to the Tribunal to proceed to make a decision on the review without taking any further action to allow or enable the Applicant to appear before it. The circumstances in this case, including the conduct of the Applicant and the Tribunal and their communications prior to the ultimate hearing date, are not such that the Tribunal acted unreasonably in not taking additional steps to find out why the Applicant did not appear at the rescheduled hearing (cf Kaur v Minister for Immigration and Border Protection (2014) 141 ALD 619; [2014] FCA 915).
As no jurisdictional error has been established, the application must be dismissed. The Applicant has been unsuccessful. It is appropriate that she meet the Minister’s costs. In circumstances where a fresh ground was raised for the first time at the hearing (notwithstanding the opportunity the Applicant had to file an amended application prior to that time) additional costs were occasioned by the need for an adjournment so that the ground could be considered. The costs sought by the Minister are reasonable and appropriate having regard to the nature of this and other similar matters.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 12 February 2016
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