SZWBU v Minister for Immigration

Case •

[2015] FCCA 873

•

8 April 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWBU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 873
Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – procedural fairness – no jurisdictional error.

Legislation: 

Migration Act 1958, ss.425, 425A, 476
Minister for Immigration and Multicultural and Indigenous Affairs v SZFDE (2006) 150 FCR 439
SZBCS v the Minister for Immigration and Multicultural Affairs [2005] FCA 1457
SZIGQ v the Minister for Immigration and Citizenship [2007] FCA 328
Applicant: SZWBU
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 304 of 2015
Judgment of: Judge Street
Hearing date: 8 April 2015
Date of Last Submission: 8 April 2015
Delivered at: Sydney
Delivered on: 8 April 2015

REPRESENTATION

The Applicant appeared in person
Solicitors for the Respondent: Mr E. Eskerie
Sparke Helmore

ORDERS

  1. The application be dismissed.

  2. The Applicant pay the First Respondent’s costs fixed in the sum of $6825.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 304 of 2015

SZWBU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

  1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision by the Tribunal made on 8 January 2015 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. The application identifies the following grounds:

    1. The Tribunal failed give proper consideration in relation to the applicant's claims without considering the procedural fairness and committed jurisdictional error.

    Particulars

    • The Tribunal failed to follow the procedure in contacting the applicant for an interview to give proper and realistic consideration in relation to the applicant's fear and possible serious harm which might be caused if he returns to Sri Lanka.

    • The Tribunal further failed to consider whether the applicant had a well- founded fear of persecution in relation to his claims.

    2. The Tribunal failed to contact the applicant to follow procedural fairness just depending on the agent's response and decided without considering circumstances and further information.

    Particulars

    • The Tribunal decided that the agent could not contact the applicant, whereas the applicant informed the agent his correct address and phone numbers for communication in advance.

  2. The applicant filed an affidavit in support of the application in which was annexed an email from Shaun Latta, apparently associated with an entity called Outback Rush Pty Limited, that purports on 26 January 2015 to affirm that the applicant’s phone was stolen and that Shaun Latta assisted the applicant in trying to contact the Immigration Department.  There is nothing in the email provided by Shaun Latta that suggests that he was engaged by the applicant to communicate with the Department to communicate the change of mobile phone number by the applicant.  The email records:

    What initialised the call to IMMI was a call to your office with the information that his phone was stolen.

  3. The applicant gave oral evidence which confirmed the engagement of John Vrachnas Lawyers in September 2013 to act for the applicant, and the applicant confirmed that John Vrachnas had been acting for him since September 2013.  The address of John Vrachnas and his telephone numbers were clearly on the application for review to the Refugee Review Tribunal as the authorised recipient for the applicant to which correspondence could be sent. 

  4. The applicant confirmed that he has been living at the same address for the last year and a half.  There is evidence before the Court that the applicant had the same email address and same residential address as communicated to his legal representative at the time that notification was sent by the Tribunal to the applicant’s authorised representative of the proposed hearing date on 5 January 2015. 

  5. A communication was sent by John Varachnas to the Tribunal on 22 December 2014 confirming the applicant’s scheduled appearing date for 5 January 2015 and confirming attempts to contact the applicant by letter to his residential address. The specified address was the correct address. Communications were also sent by email to the applicant’s correct email address. Calls were made to a phone number that the applicant says was changed and no longer correct after his phone was lost.  There is no other corroborative evidence that has been adduced to the Court about the changed phone number. 

  6. I do not accept the applicant as a witness of truth. The applicant’s evidence was inconsistent, contradictory and evasive. I do not accept that the applicant lost the phone.  I do not accept that the applicant did not receive notification of the hearing date.  In any event, it is clear that the agent of the applicant received notification and was an authorised agent for the applicant. This is not a case where there was any suggestion of fraud by the agent. 

  7. The Tribunal complied with ss.425 and 425A of the Migration Act by inviting the applicant to attend the hearing of 5 January 2015, and the fact that the applicant may have been unaware of the hearing is of no legal significance and does not establish jurisdictional error; see SZBCS v the Minister for Immigration and Multicultural Affairs [2005] FCA 1457 at [32]. I do not, however, accept the applicant’s evidence. I am not satisfied that the applicant was not notified of the hearing date or that the applicant was unaware of the hearing date, given the evidence he has given this Court. It is also clear the applicant was able to read English including numbers, from the evidence that he gave.

  8. Accordingly, it was open to the Tribunal to proceed to decide the matter in the circumstances of this case without conducting any further enquiries; see SZIGQ v the Minister for Immigration and Citizenship [2007] FCA 328 at [5]. I note that the Tribunal was under no obligation to look for some other avenue for communicating with the applicant, who did not respond to the hearing invitation; Minister for Immigration and Multicultural and Indigenous Affairs v SZFDE (2006) 150 FCR 439 at [39].

  9. The hearing invitation complied with the requirements of s.425 and s.425A of the Migration Act.  It was clearly open to the Tribunal to make a decision to proceed without taking further action in the circumstances recorded in the Tribunal’s reasons at paras.3 and 4:

    3. On 23 October 2014 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 5 January 2015. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. On 22 December the applicant’s registered migration agent advised the Tribunal that since receiving the invitation they had been unable to contact the applicant by any method (telephone, letters and emails) and that they were unable to lodge a response to the hearing invitation. They also advised that they had attempted to contact him on a daily basis and would continue to do so. On 29 December 2014, they faxed a letter to the Tribunal to the same effect. An SMS hearing reminder message was sent to the applicant’s mobile number on 2 January 2015. On the morning of the scheduled hearing, the agent called the Tribunal and advised that they had been unable to contact the applicant and it was unlikely that he would appear.

    4. The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. Nor have the applicant or his agents since provided the Tribunal with any reasons or evidence to explain his non-attendance. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

  10. It is clear that the Tribunal properly assessed the material before it, and in particular, the alleged fear of possible harm if returned to the applicant’s country of citizenship, being Sri Lanka.  In particular, those fears were fully addressed at paras.49-61.  Further, the Tribunal squarely made an adverse finding in relation to whether the applicant had a well-founded fear of persecution in para.58 of the Tribunal’s reasons.  There is no substance in ground 1 of the application.

  11. In relation to ground 2, the proposition that the applicant informed his agent of his correct address and phone number for communication in advance was contradicted by the applicant’s own sworn evidence.  It does appear that the applicant changed his phone number, but the circumstances in which that change occurred are not explained.  What is clear is that the applicant gave no evidence to suggest that he provided any changed phone number to his agent. It is also clear that his agent continued to have his correct address for correspondence and correct email address. I am satisfied communications as to the hearing date were sent by the applicant’s authorised agent to the applicant and that the authorised agent received the notification as to hearing date.

  12. In these circumstances, there is no substance in the alleged denial of procedural fairness, and it was entirely open to the Tribunal to decide to proceed with the conduct of the review and to determine the application, given the applicant’s failure to attend the hearing date on 5 January 2015.  The findings made by the Tribunal were open.  The Tribunal complied with the statutory requirements of the Act.  There was no jurisdictional error in the conduct of the review or in the Tribunal deciding to proceed to make a decision in the circumstances identified by the Tribunal.  The application is dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  13 April 2015

CORRECTIONS

The cover page was amended by deleting ‘SYG347 of 2015’ and substituting ‘SYG304 of 2015’.

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