FEDERAL COURT OF AUSTRALIA

SZNCO v Minister for Immigration and Citizenship [2009] FCA 1274

SZNCO and SZNCP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 751 of 2009

GRAHAM J

2 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                   The appeal be dismissed.

2.                   The appellants pay the respondent Minister’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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REASONS FOR JUDGMENT

1                     The appellants are citizens of India.  The first appellant claims to have a well founded fear of persecution for a Convention reason.  The second appellant makes no separate claim for refugee status, but joins in her husband’s application as a spouse of a non citizen to whom s 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’) is said to apply. 

2                     The appellants obtained passports from the Republic of India in 2003 and 2007.  They obtained visas to enter Australia in February 2008, which permitted them to stay for three months.  On 23 March 2008 they departed India, and on 24 March 2008 they arrived in Australia.

3                     On 21 April 2008 they lodged an application for Protection (Class XA) visas.  So far as the second appellant was concerned, her application was as a member of the family unit who did not have her own claim to be a refugee, but was included in the first appellant’s application.  On 17 July 2008 the delegate of the Minister decided to refuse the appellants’ applications. 

4                     On 6 August 2008 the appellants lodged an application for review in the Refugee Review Tribunal (‘the Tribunal’).  The application for review was acknowledged by the Tribunal by letter dated 12 September 2008.  The application gave as the address to which correspondence should be sent a Post Office box in Griffith, New South Wales.

5                     By letter dated 3 October 2008 sent to the appellants at the address so provided, the Tribunal informed the appellants that it had considered the material before it, but it was unable to make a favourable decision on that information alone.  In the circumstances, the appellants were invited to attend a hearing before the Tribunal on 21 November 2008.  As it transpires, the Tribunal found it necessary to reschedule the proposed hearing, and on 31 October 2008 a communication was sent by the Tribunal, by registered post, to the first appellant at the address given in the application for review informing the appellants that the hearing had been postponed to 4 December 2008.

6                     As it transpired, the Tribunal convened a hearing for 4 December 2008 in Griffith, but neither appellant attended.  As it transpires, a letter had been sent by the first appellant to the Tribunal on 12 September 2008.  It was recorded that that communication had been sent by hand.  It gave an address in Mildura and a ‘postel Add’ also in Mildura.  It requested that a letter be sent to, ‘my postel addres’, however it did not request that the address given in the application for review be changed.  The Tribunal member, before whom the application for review came, proceeded to determine the application in the absence of the appellants. 

7                     On 8 December 2008 the Tribunal affirmed the decisions of the Minister’s delegate not to grant the appellants Protection (Class XA) visas. 

8                     By an application filed 5 January 2009 in the Federal Magistrates Court of Australia, the appellants sought constitutional writ relief in respect of the Tribunal’s decision.  That application contained two grounds of review interspersed with references to various statutory provisions.  There was an allegation that the Tribunal had failed to accord procedural fairness, in which reference was made to s 424A of the Act.  There was an alleged failure to reach a conclusion satisfactory to the appellants in respect of the claimed refugee status of the first appellant.  There was an alleged failure to analyse properly the ‘future harm’ the appellants may face if they had to go back to India.  And there was a claimed failure to assess or carry out the ‘real chance’ test before dismissing the appellants’ claim. 

9                     The application for judicial review came before the Court constituted by Raphael FM on 2 July 2009.  On that day his Honour held that the application for review should be dismissed, and he ordered the appellant to pay the respondent Minister’s costs, assessed in the sum of $4000.

10                  The evidence before the learned Federal Magistrate included evidence of a telephone call in which the first appellant told the Tribunal that he would be attending the hearing, but that he did not do so, because he was sick.  The appellant confirmed that he had received a call from the Tribunal, and that he had not gone to the Tribunal hearing because he was sick. 

11                  In SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 the High Court considered the consequences of a failure to appear at a Tribunal hearing.  The particular circumstances of that case do not have any application to the present case.  However, it is instructive to have regard to what their Honours said at [34]-[35], which is of general application, as follows:

‘34       The consequence of failure to appear upon invitation under s 425 is spelled out in s 426A.  This provides:

“426A(1)        If the applicant:

(a)    is invited under section 425 to appear before the Tribunal; and

(b)    does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

(2)        This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.”

35        What is the content of the expression “does not appear”  in para (b) of s 426A(1)?  Certainly it is a jurisdictional fact upon which depends the occasion for the exercise of the decision-making power of the Tribunal given by the balance of the sub-section.  Further, s 426A(2) enables the Tribunal to respond to cases of force majeure and the like which cause the applicant to fail to appear.  In Minister for Immigration and Multicultural Affairs v Bhardwajby error of the Tribunal it proceeded to determine a review application adversely to the applicant without having regard to a prior written adjournment application; the Tribunal, later being apprised of its error made a second decision (favourable to the applicant).  A challenge by the Minister to the competency of the second decision failed in the Federal Court and in this Court.’

(footnotes omitted)

12                  When addressing me, the appellant indicated that he did not turn up at the hearing before the Tribunal on 4 December.  It was suggested, as I understood it, that both the appellants were sick at the time, so they could not attend.  If I understood the appellant correctly, he suggested that he was suffering from some skin disease at the time and that prevented his personal attendance. 

13                  It seems to me that it was clearly within the power of the Tribunal to do as it did and decide the matter in the absence of the appellants without taking any further action to allow or enable them to appear before it.  The Tribunal member carefully considered the application for a Protection (Class XA) visa and the matter contained in the four typed pages constituting the first appellant’s answers to questions 41, 42, 43, 44 and 45 of Part C of the application form.

14                  The first appellant claimed to have a well-founded fear of persecution for reason of his political opinion and, arguably, for reason of his religion as a Hindu who offered support to Muslims and lower caste people in his area who had been downtrodden and who suffered in communal riots between Hindus and Muslims. 

The Tribunal member was unable to be satisfied that the requisite criteria for the grant of a visa had been met in the first appellant’s case.  The Tribunal member referred to the claims as being expressed in vague and general terms, using the words ‘no details’, ‘no information’, ‘insufficient details’, ‘unclear’, ‘insufficient information’, and so on.

15                  The Tribunal member was not satisfied that the first appellant had been persecuted for a Convention reason in the past or that there was a real chance that he would be persecuted for a Convention reason in the reasonably foreseeable future.  The Tribunal was not satisfied that the first appellant had a well-founded fear of persecution for a Convention reason. 

16                  The first appellant had little to say in support of the grounds of appeal raised in his Notice of Appeal filed 22 July 2009, which demonstrated a somewhat scattergun approach to the matter.  The first appellant could only say that if he returned to India he feared that he would be killed, but also said that he came to Australia because he feared that if he went to the police in India they would put him in custody and because the police went to his home he had to go on the run and had to come here.

17                  Plainly, what the first appellant seeks is a merits review of his case which it is not open to this Court to afford him.  The Tribunal did not, in my opinion, commit any jurisdictional error which would warrant the orders sought.  In my opinion the appeal should be dismissed.

Associate:

Dated:         6 November 2009

The First Appellant appeared in person.

The Second Appellant did not appear.

The Second Respondent filed a submitting appearance.