SZQDX v Minister for Immigration & Anor [2011] FMCA 689 (2 September 2011)

Last Updated: 3 November 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQDX v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 689

MIGRATION – Review of decision of the Refugee Review Tribunal – application for extension of time – non-appearance by the applicant – matter heard pursuant to r.13.03C(1)(e) of the Federal Magistrates Court Rules 2001 (Cth) – application dismissed as not competent.

Migration Act 1958 (Cth), ss.36, 65, 424A, 425, 425A, 426A, 441A, 441C, 476, 477 Federal Magistrates Court Rules 2001 (Cth), r.13.03 Migration Regulations 1994 (Cth), reg.4.35D

Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 MZXTA v Minister for Immigration and Citizenship [2008] FMCA 1201 MZXTA v Minister for Immigration and Citizenship [2009] FCA 1186; (2009) 112 ALD 89

Applicant:

SZQDX

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 746 of 2011

Judgment of:

Nicholls FM

Hearing date:

2 September 2011

Date of Last Submission:

2 September 2011

Delivered at:

Sydney

Delivered on:

2 September 2011

REPRESENTATION

The Applicant:

No appearance

Appearing for the Respondents:

Ms J Ingram

Solicitors for the Respondents:

Clayton Utz

ORDERS

(1) The application made on 18 April 2011 to extend time pursuant to s.477(2) of the Migration Act 1958 (Cth) is refused.
(2) The substantive application made on 18 April 2011 is dismissed as not competent.
(3) The applicant pay the first respondent’s costs set in the amount of $3,500.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 746 of 2011

SZQDX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me an application made on 18 April 2011, under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 11 March 2011, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

2. The applicant is a citizen of Indonesia of Chinese ethnicity who arrived in Australia on 20 September 2008 on a student visa. The applicant applied for a protection visa on 31 August 2010 (Court Book – “CB” – CB 1 to CB 24).

Claims to Protection

3. The applicant claimed to have suffered discrimination in Indonesia by reason of his Chinese ethnicity.
4. The applicant claimed that, while at school and at college, he was physically assaulted by fellow students and that, during riots in Indonesia, his house was robbed and belongings were taken by “native Indonesians”, and he was afraid to go out onto the street (CB 17.5).
5. He further claimed that, after his college graduation in 2008, he was unemployable and was threatened by what he described as “native Indonesians” because of his Chinese ethnicity (CB 17.6).

The Delegate

6. The applicant was invited to attend an interview with the Minister’s delegate by letter dated 1 October 2010 and sent to him by registered post to the address for service that he had provided for that purpose (CB 25). However he made no response to this invitation (CB 33.7).
   As the delegate noted in her decision record, the applicant did not contact the Department to arrange an interview or to advise that there was a reason why he was unable to attend for an interview. I note that the letter, although addressed to the address for service, appears to have been returned as “unclaimed” to the Minister’s department on 17 November 2010 (CB 35).

The Tribunal

7. Following the refusal of the application by the delegate, the applicant applied to the Tribunal for a review of the delegate’s decision made on 30 November 2010 (CB 36 to CB 40). On 1 December 2010 the Tribunal wrote to the applicant acknowledging receipt of the application for review. The letter was sent to the address for service provided by the applicant, which is an address in Castlereagh Street, Sydney, New South Wales (CB 41). This letter also was subsequently returned as “unclaimed” to the Tribunal (CB 42).
8. In any event, on 31 January 2011 the Tribunal again wrote to the applicant inviting him to a hearing before it scheduled for 11 March 2011 (CB 43). The Tribunal, in that letter, advised the applicant that, on the information before it, it could not be satisfied that the protection visa must be granted. The hearing was the applicant’s opportunity to present evidence and arguments, and the applicant was so informed. Again, this invitation was sent by registered post to the address for service, the same address in Castlereagh Street, Sydney, New South Wales. Yet again this letter was returned as “unclaimed” to the Tribunal on 18 February 2011 (CB 44).
9. Not surprisingly in these circumstances, the applicant did not appear at the scheduled time. The Tribunal noted in its decision record that no response was received to its invitation, but the Tribunal took steps to confirm that the invitation was sent to the most recently advised address. The applicant had not provided any telephone contact number, as he had been invited to do in the application. Therefore the Tribunal felt that it had done everything that could be done to “properly” notify the applicant. In those circumstances, and in the absence of the applicant, the Tribunal proceeded, pursuant to s.426A of the Act, to make a decision (CB 46 to CB 51).
10. Under the heading of “Findings and Reasons” in its decision record the Tribunal noted that it was not its role to make the applicant’s case out for him, nor was it required to uncritically accept any allegations made by the applicant ([22] at CB 50). As a result of the lack of any evidence provided, and the inability of the Tribunal to have a number of its questions about the bare claims answered by the applicant, the Tribunal was not satisfied that the applicant had suffered, or would suffer, persecution in a Convention sense if he were to return to Indonesia ([24] at CB 50). It therefore affirmed the delegate’s decision.

Application to the Court

11. It is not clear how, given that the Tribunal’s letter of notification of its decision appears again to have been addressed to the address for service from which Australia Post continued to return letters of correspondence to the Tribunal as being “unclaimed”, nonetheless the applicant did, at some point, know of the Tribunal’s decision, because he made an application to this Court complaining about that Tribunal decision. That application, as I said, was made on 18 April 2011. The Tribunal’s decision was dated 11 March 2011. Section 477(1) of the Act requires such applications to the Court to be made within 35 days of the date of the Tribunal’s decision; 18 April is three days out of time.
12. In those circumstances, the applicant applied to the Court for an extension of time pursuant to s.477(2) of the Act. In that application the applicant provided the following reasons why an extension of time shall be granted:
    • “1. My visa valid until 19 April 2011. I thought I can appeal before my visa expired.
    • 2. Thus, I did not appeal in 35 days after the Refugee Review Tribunal made the decision.”

[Errors in the original.]

13. The substantive application contains three bare and unparticularised grounds:
    • “1. The Second Respondent failed to provide in writing to the applicant particulars of adverse material.
    • 2. The Second Respondent failed to invite the applicant to comment upon the adverse material.
    • 3. The Second Respondent has not discharged its statutory function properly.”

Before the Court

14. When the applicant filed his application, the Court’s Registry gave him a time and a place for attending at the first Court date in this matter and which was in this very Court where we are now conducting this hearing, on 4 May 2011. The applicant appeared in person, and was assisted on that day by an interpreter in the Indonesian language.
15. Amongst other things, at that time the Minister’s solicitor handed up Short Minutes of Order that had been translated for the applicant by the interpreter who had attended to assist the applicant. I note also that on that day the applicant had indicated to the Court that he did not wish to participate in the Court’s RRT Legal Advice Scheme (“RRTLAS”) as he had a migration agent, albeit in Darwin, who was going to assist him before the Court.
16. Nonetheless, at that time I stood the matter down so that the applicant could reconsider. On resumption the applicant notified that he wished to participate in the “free” legal advice scheme. I note from the Court’s record that a lawyer on the panel of that scheme was assigned to the applicant, and written advice was ultimately provided to the applicant in relation to his application.
17. Also at that time I made orders that the matter be set down for hearing today at 10.15am before me here in this Court. When the matter was called outside the Court there was no appearance by the applicant.
    I adjourned for a period in case the applicant was delayed in travelling to the Court. When the matter resumed, about 35 minutes after the scheduled time, again there was no appearance by the applicant.
18. The Minister sought leave, which was subsequently granted, to tender into evidence a copy of a letter, dated 24 August 2011, from the Minister’s solicitors, addressed to the applicant at the address for service, serving him with written submissions and the affidavit of Ms Ingram. The letter reminded the applicant of the time, date and place of the hearing (“RE1”).
19. I was satisfied, based on his presence at the first Court date, and in light of “RE1”, that the applicant had notice of the hearing today. Nothing has been heard from the applicant by way of seeking an adjournment of the hearing or to explain his absence. I determined, in the circumstances, that it was appropriate to proceed pursuant to r.13.03C(1)(e) of the Federal Magistrates Court Rules 2001 (Cth) to a final hearing in the applicant’s absence.
20. At that hearing, Ms J Ingram appeared for the respondent Minister and relied on written submissions that were filed by the Minister in this matter. I note also that I granted leave for Ms Ingram’s affidavit, annexing the relevant postal record in relation to letters sent to the applicant inviting him to a hearing before the Tribunal, to be read into evidence (see also CB 43).

Consideration

Extension of Time

21. Section 477(1) of the Act requires that an application of this type be made to the Court within 35 days of the date of the Tribunal’s decision. This has not occurred. Section 477(2) does provide that the Court may extend the time if it is in the interests of the administration of justice to do so. The applicant has applied for such consideration.
22. A number of elements are relevant to this consideration, including the extent of the delay, any satisfactory explanation for it, any merits in the grounds of review such that the applicant’s case should proceed, the impact on the applicant, and any prejudice to the Minister.
23. The applicant’s explanation for the delay in making his application to the Court is, in my view, a satisfactory explanation in all the circumstances. It is the case that the period of time is extremely short – three days including a weekend. He appears to have had some misunderstanding as to the time available. It is also the case that, in these circumstances, I cannot see that any prejudice to the Minister would ensue if the extension of time were to be granted.
24. But while there would be an impact on the applicant if the extension of time were to be refused (ultimately he would most probably need to leave Australia) the lack of any merit whatsoever in the grounds of the application and, indeed it must be said, the applicant’s own unexplained conduct in failing to attend first, an interview with the delegate, then a hearing before the Tribunal, and his unexplained failure to attend the hearing now before the Court, means that I cannot see that it is in the interests of the administration of justice, even just on that alone, to extend time.
25. In looking at the applicant’s history once having made his application for a protection visa, it is hard to escape the conclusion that the applicant has embarked on this course merely to extend his time in Australia. It must be said, if the applicant had genuine claims, having failed to attend an interview on one occasion with the delegate can perhaps be put down to many factors. Having failed to attend the Tribunal hearing, and in the circumstances having failed to ensure that he was in a position where he would receive correspondence sent to the address for service that he himself had provided to the Tribunal, again may have some lesser explanations.
26. But a failure to attend Court today, in circumstances where he had personally been told by the Court of the importance of the hearing, and of the time date and place of the hearing, with a total lack of any explanation or any communication of any difficulty for attending, can only lead to the conclusion that the applicant’s pursuit of this matter before the Court is, in such circumstances, an abuse of the Court’s processes.
27. Beyond that, the applicant’s grounds themselves are so lacking in merit that they provide, in my view, an additional reason for refusing the extension of time in that I cannot see that there is any utility in extending time merely to then immediately dismiss the application.
28. The applicant’s grounds, even taken at their best, misconstrue the Tribunal’s decision. The reason the application for review was unsuccessful was that the unexplained absence of the applicant from the Tribunal hearing meant that the Tribunal could not reach the requisite level of satisfaction such that the visa must be granted.
29. Sections 65 and 36(2) of the Act state that the decision-maker, in this case the Tribunal, must reach a requisite level of satisfaction that, in effect, the applicant meets the definition of refugee as set out in Article 1A(2) of the Refugees Convention. If the Tribunal cannot reach that level of satisfaction then refusal is mandated. The Tribunal, in the circumstances, could not reach that requisite level of satisfaction because the applicant did not attend to prosecute his claims, to explain his claims, or to present his evidence. The Tribunal was left in a state no better than it was from the time when the applicant brought his application for review to it.
30. The applicant’s complaint now, that the Tribunal failed to provide him with particulars of adverse information, is, at best, disingenuous. If he had gone to the Tribunal hearing, presumably this would have been the opportunity to hear of any adverse material that may have existed in his case.
31. But what the applicant fails to understand is that the decision of the Tribunal did not rely on any adverse view of any material other than the view that the Tribunal took of the bare claims made by the applicant, which were such and in circumstances where the applicant was on notice, given the delegate’s decision record and the Tribunal’s letter to him, that those bare claims would not lead to a successful outcome for him.
32. That is the reason for the refusal. It did not involve any failure to provide opportunity to comment on adverse material. In any event, if indeed that phrase can be taken to encompass his own material, that was hardly “adverse material”, it was what he had put in his protection visa application. But in any event, as I have said, it was his own action in not attending the hearing that lead to his not being told this in person, as opposed to the Tribunal putting it to him in writing.
33. There is no error evident in the Tribunal’s exercise of its discretion, pursuant to s.426A, to proceed to a decision in the absence of the applicant. The applicant was invited to a hearing pursuant to s.425 of the Act. The letter complied with all of the statutory and regulatory requirements. I am satisfied that it was, on the evidence before the Court, sent to the address for correspondence that the applicant himself had provided to the Tribunal (s.425, s.425A, s.441A, s.441C and reg.4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”) and included a statement to the effect of s.426A).
34. When the applicant did not attend at the scheduled time, and no request for an adjournment or any explanation was given, the Tribunal was entitled to proceed as it did, noting, as I said earlier, that the Tribunal took steps to satisfy itself that the letter had been sent to the right address and that there was no other information before it, for example a telephone number, such that it could otherwise contact the applicant.
35. The exercise of the discretion, in all the circumstances, was neither arbitrary, nor capricious, nor unreasonable. There is no error evident in the way that the Tribunal went about exercising its discretion in all those circumstances.
36. The Minister submits that the mere fact that an applicant makes claims to fear persecution does not mean that those claims will be accepted. The applicant provided very little detail in his application, and then did nothing at all to prosecute his case before the delegate or the Tribunal. It is trite to say that the Tribunal does not have to make out the applicant’s case for him. Nor is it required to uncritically accept whatever an applicant has put (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265).
37. The circumstances of this case fall squarely within what a Full Federal Court said in the matter of NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (at [5]): in relation to circumstances where an applicant provides little detail in his application he is clearly told this [in this case both by the delegate and then the Tribunal in its letter of invitation to the hearing] and, with no explanation, does not attend the hearing and provides no explanation to the Tribunal in these circumstances, the Tribunal’s decision is, as the Court said, the “inevitable consequence” of the applicant’s own inaction.
38. Grounds one and two of the substantive application may, at best, and as the Minister submits, be said to be an assertion of some failure by the Tribunal to discharge its obligations pursuant to s.424A(1).
39. That, in my view, is a generous reading of the grounds. As stated above, a mere assertion of “adverse material” does not immediately conjure up adverse information. No reference is made to s.424A. Nonetheless, being very generous to the applicant, it may be said that that is one way of reading it. But as the Minister submits, and in the circumstances that I have already referred to above, such grounds have no relevance, and no merit.
40. The only information possibly caught by s.424A(1) is what the applicant himself put in writing in his application for a protection visa, and such information is excluded from the operation of s.424A(1) by virtue of s.424A(3)(ba) and, to the extent that is may have been put before the Tribunal for the purpose of the review, s.424A(3)(b).
41. Again, even if the grounds were to be read in such a way, that is the only information that could be said that the Tribunal, at some point, considered would be the reason for affirming the delegate’s decision. No other information, other than the applicant’s own claims, figured in the Tribunal’s consideration.
42. I should just note also, again being generous to the applicant, that if the applicant were to assert that the Tribunal failed to provide, in writing, issues adverse to his claims, drawn from the words “adverse material”, quite clearly the Tribunal discharged its obligation pursuant to s.425 of the Act. It invited the applicant to a hearing, and that is the opportunity and indeed the obligation on the Tribunal, to discuss the issues in the review.
43. The applicant’s complaint, however, is a failure to provide such issues in writing. There is no such obligation. In fact, with regard to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592, the obligation to expose issues to the applicant by the Tribunal is in discharge of its procedural fairness obligations, pursuant to s.425, at a hearing.
44. In any event, in the current case the “issue” of the paucity of the applicant’s unexplained and unadorned claims was squarely the issue or the reason for the delegate’s decision. As such the applicant would have been squarely on notice as of that point by the time the matter came before the Tribunal.
45. Ground three, it must be said, is meaningless without any particulars. To just assert, in some general terms, that the Tribunal had not discharged its statutory function properly, in the absence of such particulars is meaningless.
46. I note that at the first Court date, an order was made giving the applicant the opportunity to file and serve an amended application giving particularity to his claim. I am satisfied that the applicant has had access to legal advice and indeed, on his own assertion, had access to other, albeit limited, assistance from a migration agent (in the context that migration agents are clearly not competent to provide legal advice, unless they happen also to be lawyers).
47. Nonetheless, again even at its most generous reading, if what is meant is some failure by the Tribunal to apply the relevant statutory code then such an allegation, in the circumstances, plainly cannot succeed.
48. As I said earlier, in circumstances where the Tribunal is not satisfied that it can make a decision in favour of the applicant, s.425 of the Act requires the Tribunal to invite the applicant to appear before it so as to give evidence on the issues relevant to the decision under review.
49. As I have said, the Tribunal wrote to the applicant inviting him to a hearing. The letter was, I am satisfied, sent by one of the methods set out in the relevant part of the Act and the Tribunal complied with the periods of notice (s.441A(4) and s.441C(4)). I should just note the letter of invitation put the applicant on notice of the effect of s.426A, had relevant notice to s.425, and took into account the matters required under s.424A. That is, reasonable period, notice, time and place of hearing.
50. The invitation was sent to the applicant providing 29 days notice of the scheduled hearing time, which the Minister correctly submits is in excess of the prescribed notice period as set out in r.4.35D of the Regulations, and the applicant was put squarely on notice that if he could not attend the hearing he was to immediately contact the Tribunal, as a failure to attend may result in the Tribunal make a decision without taking any further action.
51. It is the case that there is evidence before the Court that the applicant did not physically take receipt of this letter. No error on the part of the Tribunal is revealed in these circumstances. The Tribunal’s statutory obligation, focusing on the applicant’s words in his ground, was properly discharged by sending the letter to the latest address for correspondence in the manner that it did, and with the meeting of all of the requirements set out by the Act and Regulations. The fact that the applicant provided an address for service and then did not claim the letter, or that the letter was undeliverable to him, does not mean that the Tribunal failed in any statutory or regulatory obligation. There is no breach of ss.425 or 425A or the other sections that I have alluded to.
52. If an applicant is invited to appear before the Tribunal pursuant to s.425 of the Act and there is non-appearance then the Tribunal, as I have said, is entitled to proceed to make a decision without taking any further action to allow or enable the applicant to appear before it. As the Minister correctly submits, relying on authority, this discretion is a wide discretion and, in any event, in the circumstances, I am satisfied the Tribunal properly exercised that discretion (MZXTA v Minister for Immigration and Citizenship [2008] FMCA 1201, affirmed in MZXTA v Minister for Immigration and Citizenship [2009] FCA 1186; (2009) 112 ALD 89).
53. I should just emphasise that the Tribunal, as I have said, had very little information before it, and could only rely on what was put in the applicant’s protection visa application. It is not for the Tribunal to make out the applicant’s case. Nor is it required to uncritically accept any or all of the applicant’s claims. I can only agree with the Minister’s submission that it was inevitable, in all the circumstances, that the applicant’s claims would be rejected, given that he did not take the opportunity to elaborate at a hearing.
54. Whatever may be meant by ground three, and even on the most generous of readings, it just would not assist the applicant in revealing jurisdictional error on the part of the Tribunal.
55. In considering all of the material before the Court, no other jurisdictional error is otherwise evident. The grounds of the application, in the circumstances, in my view, have no merit. While the period of delay in the application to the Court is, as I said, extremely short, for the reasons that I have already given I cannot see that it is in the interests of the administration of justice to extend time merely to dismiss a greatly unmeritorious application to the Court. Had there been something of merit in the grounds, that may have swayed me to a different conclusion, even if those grounds ultimately were revealed as not being successful. But in circumstances where the grounds have no merit, grossly misinterpret and misunderstand the Tribunal’s decision record, and are of such a general character as to be really meaningless, I cannot see that the interests of administration of justice requires any extension of time.

Conclusion

56. The application to extend time pursuant to s.477(2) is refused. I will make an order in those terms. It follows therefore that the substantive application to the Court is not competent, and therefore should also be dismissed on that basis, noting of course that I proceeded to these conclusions by way of r.13.03C(1)(e) of the Federal Magistrates Court Rules 2001 (Cth) after having been satisfied that I should proceed with the hearing generally in this matter in the absence of the applicant. I will make those orders.

I certify that the preceding 56Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !fifty-sixfifty-six (56) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 31 October 2011