M169 of 2002 v Minister for Immigration

Case •

[2004] FMCA 930

•

3 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M169 of 2002 v MINISTER FOR IMMIGRATION [2004] FMCA 930
MIGRATION – Application for protection visa – whether jurisdictional error.

Migration Act 1958, ss.426A(1), 441A(4)(c)(ii),486A

VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255
ReRuddock; ex p Reyes (2000) 177 ALR 484
NAWJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 54 (5 February 2004)

Applicant: APPLICANT M169 of 2002
Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
File No: MLG 794 of 2003
Delivered on: 3 December 2004
Delivered at: Melbourne
Hearing Dates: 11 June 2004 and 23 July 2004
Judgment of: McInnis FM

REPRESENTATION

Applicant: In person by video link
Counsel for the Respondent: Mr D Star
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The Application be dismissed.

  2. The Applicant shall pay the Respondent’s costs and disbursements fixed in the sum of $10,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 794 of 2003

APPLICANT M169 of 2002

Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

  1. The applicant commenced proceedings in the High Court remitted to the Federal Court and then by order of that court made on 23 July 2003 transferred to the Federal Magistrates Court.  An application for order of review was filed in the Federal Court on 20 June 2003 in accordance with orders of that court and the applicant filed facts and contentions prepared by his then solicitors on 27 June 2003. 

  2. A registrar of this court fixed the matter for hearing initially on 27 May 2004.  On that date the court was advised that it was anticipated there would be no appearance on behalf of the applicant.  A solicitor, however, was still on record and ultimately in the absence of any notice of practitioner ceasing to act or advice to the court the matter was adjourned with other orders made in relation to costs payable which


    I do not need to recite in this judgment.  In any event, the matter again came before the court on 11 June 2004 and the applicant appeared in person via video-link and orders were made further adjourning the matter for a video-link hearing to 23 July 2004 and the applicant was directed to file and serve any further submissions in writing on or before 16 July 2004.  An interpreter assisted the applicant on that occasion.

  3. On 23 July 2004 the applicant again appeared by video-link with the assistance of an interpreter.  At all material times the applicant has been a prisoner at Port Phillip Prison on remand pending certain criminal charges.  When the matter came before the court on 11 June 2004 he indicated he was being represented by Victoria Legal Aid in respect of the criminal charges and expressed a view that he thought he may get legal assistance in relation to this application and hence the matter was adjourned.  The respondent was then required to ensure that the applicant was provided with all relevant documents, and I am satisfied this has occurred.  It included transcript of the proceedings of 11 June 2004 and I am otherwise satisfied the applicant had in his possession all relevant documents.

  4. The chronology of events has been appropriately set out in the respondent's contentions of fact and law filed 26 August 2003.

  5. The chronology commences with the applicant arriving in Australia from Sri Lanka as a student on 23 September 1996.  On 24 May 1999 the applicant made application for a protection (class AZ) visa to the respondent.  On 21 June 1999 the minister's delegate refused to grant the protection visa ("the primary decision").  On 11 December 2000 the Refugee Review Tribunal (the RRT) affirmed the primary decision (the RRT decision). 

  6. On 3 December 2001 the High Court by consent made orders quashing the first RRT decision and remitting the application to the RRT to be decided according to law (CB64-65).

  7. On 30 May 2002 a differently constituted RRT affirmed the decision not to grant a protection visa to the applicant for a second time (the second RRT decision) (CB83-106).

  8. On 2 October 2002 the applicant filed an application for an order nisi in the High Court in relation to the second RRT decision and on 7 February 2003 the High Court dismissed certain paragraphs of the applicant's application for order nisi in relation to the second RRT decision and, as indicated earlier, otherwise remitted the remaining parts to the Federal Court which in turn on 23 July 2003 transferred the matter to the Federal Magistrates Court.

  9. Hence, the application remitted by the Federal Court to the Federal Magistrates Court is the application for order nisi filed in the High Court previously remitted to the Federal Court.  As indicated earlier, in order to comply with orders of the Federal Court the applicant filed what is described as "an application for order to review" on 18 June 2003 which appears to contain grounds different or differently expressed to those remaining in the application for an order nisi remitted by the High Court to the Federal Court.  The respondent assumes, and I accept it is proper to assume, that the applicant only seeks to argue the grounds in that document and otherwise abandons the formulations of the surviving grounds in the application for order nisi remitted by the High Court to the Federal Court.

  10. It was submitted by the respondent in the circumstances that it remains inappropriate for the applicant to file what is described as "an application for order of review" and the document should properly be entitled "Particulars of the grounds of review relied upon by the applicant".  I accept that criticism, and to the extent that it is necessary to do so, will amend the document accordingly having regard to the fact that the applicant is unrepresented.

  11. It is appropriate at this point to set out the relevant law in relation to jurisdictional error following the decision of the High Court in S157.

  12. In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255 where the Court states:-

    “16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”

  13. It is noted that the respondent had relied upon a notice of objection to competency filed on 28 May 2003 in the Federal Court objecting to jurisdiction of the court to try the application for writs of prohibition and certiorari on the basis that the application was not filed within the time required by s.486A of the Migration Act 1958 (the Act).

  14. The respondent seeks orders that the application be dismissed and that the notice of objection to competency be allowed.  I should add that there are two respondents in this application, the second respondent being the member of the RRT.  In my view, it is inappropriate for that person to be named (see ReRuddock; ex p Reyes (2000) 177 ALR 484 per McHugh J at [22] – [25]). In the circumstances I do not propose making a formal order. It should be noted that reference to the respondent in this judgment is a reference to the first respondent, namely the Minister for Immigration & Multicultural & Indigenous Affairs.

  15. In brief terms, the claims and evidence before the RRT included an assertion by the applicant in his application for a protection visa that he is a national of Sri Lanka.  He is Sinhalese and was born on 27 December 1971.  He was married on 25 May 1995 and has one child.  His younger sister is in Australia while his spouse, son and parents remain in Sri Lanka.  He undertook a secondary school education in Sri Lanka and worked there in the garment trade at various employers until September 1996 when he left for Australia.  During his employment in Sri Lanka he undertook study connected with the clothing industry and arrived in Australia in September 1996 on a student visa and studied at the Melbourne Institute of Textiles from 1996 to 1997.  He left Sri Lanka on a passport issued on 26 June 1996 in his own name and apparently had no difficulty obtaining it.  His student visa was renewed on 6 April 1998 and this was valid till 15 March 1999.  He had lived in Sri Lanka at the same address up until the time he left.

  16. The applicant made detailed claims in a statement dated 21 May 1999 which was before the RRT.  In its findings and reasons the RRT referred to the applicant's claim that his father was a well-known supporter of the United National Party (UNP) and the applicant claims he became interested in politics when he was employed as a work study officer and also became a supporter of the UNP.  He claimed that in September 1994 when he went with two friends to assist in the decoration of a church for the centenary celebrations he and his friends were attacked by assailants armed with guns and clubs with the result that two of his friends were killed.  He claimed that during this melee he assaulted the secretary of a minister in the PA government and claimed that the leader of the UNP was to attend the church celebrations the next day.

  17. At the hearing before the RRT the applicant made further claims including a claim that he received threats from the secretary of a government minister but did not give any details of the alleged threats.  The RRT found his claim was vague and general and lacking relevant details.  It otherwise examined the material and was prepared to accept that the applicant was a supporter of the UNP at the time of the alleged incident in September 1994, though accepted that following the applicant's marriage in 1995 he became "aloof from politics".  The RRT otherwise considered events which occurred after the incident at the church in September 1994 and ultimately did not accept many of the applicant's claims and found implausible assertions made by the applicant in relation to material allegedly kept on a video cassette concerning the incident. 

  18. The RRT considered in detail the allegations about the attack as alleged by the applicant at the church.  It otherwise considered country information clearly relevant to the application and concluded on the evidence as a whole that it was not satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

  19. In the applicant's document filed 27 June 2003, which I take to be particulars, it seems to me that essentially the applicant chooses to challenge the findings of facts of the RRT by claiming it failed to consider whether the particular event of physical violence and witnessing what happened to others provided a basis for a well‑founded fear of persecution.  The applicant otherwise claims not to have been given an opportunity to provide further information or evidence to the RRT in order that it failed to provide procedural fairness by not considering options to locate the applicant and hearing the matter in his absence.  Further, it was claimed there was a failure to consider other factors involved including the involvement of the UNP.

  20. The respondent submitted that the RRT has in fact complied with its obligations under the act and did not act in breach of its duty to accord procedural fairness.  The key issue which requires some attention was the matter conceded by the respondent that the second RRT decision was made without the applicant having a hearing and where the applicant was unaware of the invitation for a hearing offered to him by the second RRT, albeit that it had the benefit of the material which had been placed before the first RRT hearing.

  21. Reference was made to the RRT complying with its statutory obligations in acting in the manner in which it did, namely forwarding correspondence dated 8 February 2002 inviting the applicant to the hearing to be held on 14 March 2002 (see CB66-67). It is noted that the address to which that letter was forwarded was the last residential address provided to the RRT by the applicant for the purposes of s.441A(4)(c)(ii) of the Act and had been listed as the address for service in the original application of the RRT dated 25 June 1999. An updated address was not provided by the applicant to the RRT and various checks undertaken by the RRT revealed it was the most current address for the applicant at the relevant time. It is noted that the letter was also sent to the applicant's then solicitors on record in the High Court proceedings.

  22. A further invitation was forwarded to the applicant to a new hearing on 10 April 2002 addressed to the applicant at two addresses, the first being the one on record and the second supplied by his solicitors in correspondence dated 13 March 2002. It was submitted the first address satisfied the RRT's obligations under s.441A(4)(c)(ii) and though noted that both letters were returned to sender. Again additional searches were made and no other addresses were located.

  23. It was submitted that in all the circumstances the second RRT decision was made without taking any further action to enable the applicant to appear before it. The RRT was able to do this as a result of s.426A(1) of the Act which provides:

    “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.”

  24. Reference was made to decision of NAWJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 54 (5 February 2004) at paragraphs 25-26 and 30-33 as follows:-

    “25 Prior to the hearing in this Court, I wrote to the Minister’s representatives pointing out that the RRT appears to have known by 29 July 2003 that the applicant may have changed her address, yet did not send her a further copy of the letter of 15 July 2003 at her new address. I invited further submissions on the significance, if any, of that fact for the RRT’s compliance with the statutory scheme laid down in Part 7, Divs 4 and 7A of the Migration Act.

    26The Minister’s representatives responded with written submissions (in the form of a letter), to which was attached a copy affidavit, sworn by a Graduate-at-Law employed by the Minister’s solicitors. The affidavit annexed documents establishing, among other things, that the letter of 15 July 2003 was posted by the RRT to the applicant on that day. The significance of this is that s 441A (4)(a) of the Migration Act provides that an invitation under s 424 to provide further information can be given by dating the document and dispatching it within three working days by prepaid post to the last address for service provided to the RRT by the recipient. If that is done, the document is taken to have been received by the recipient seven working days after the date of the document.

    …

    30 I am satisfied that the letter of 15 July 2003, inviting the applicant to provide additional information, was dispatched on the date it bears and was sent by prepaid post to the last address for service provided by the applicant in connection with the review. It follows that the invitation was given in accordance with the procedure laid down in s 441A(4) of the Migration Act. The invitation is therefore deemed to have been received seven working days after its dispatch – that is, on 24 July 2003 (s 441C(4)). If it matters, I am satisfied on the balance of probabilities that the applicant actually received the letter no later than 24 July 2003.

    31 Since the applicant did not provide the additional information within the time specified (or at all), the RRT was not obliged to invite the applicant to appear before it to give evidence and present arguments in relation to the decision under review (ss 424C(1), 425(1), 2(c)). Moreover, the applicant was not entitled to appear before the RRT (s 425(3)). Thus the RRT was entitled to decide the application on the documentation before it without giving the applicant an opportunity to appear.

    32 It is not to the point that the RRT was notified of a change of address on 8 August 2003 or perhaps as early as 29 July 2003. By the latter date the invitation of 15 July 2003 had been dispatched and had been received by the applicant. Unfortunately, she chose not to respond to the invitation and thus the RRT was not given any of the additional information it had requested.

    33 The applicant complained that the RRT had failed to pay sufficient regard to the matters she had raised in her original application. But this amounts only to a complaint that the RRT erred on the merits. It does not establish jurisdictional error. In any event, it is difficult to see what other decision the RRT could have reached on the material before it.”

  25. In my view, on a proper reading of the chronology of events and correspondence I am satisfied that the second RRT was entitled to proceed to a hearing without undertaking further searches or indeed taking any further action to allow and enable the applicant to appear before it.  It is incumbent upon applicants to ensure that an up-to-date address for service is provided, either directly to the respondent or via solicitors then on record acting for and on behalf of an applicant. 


    I accept that in the circumstances there is no basis upon which a review could succeed having regard to the chronology of events and the correspondence inviting the applicant to attend the RRT hearing.  It is of note that the RRT in any event comprehensively dealt with all significant matters raised by the applicant and indeed those matters now claimed to be of concern in the applicant's particulars filed on 27 June 2003.

  26. On a proper reading of the RRT's decision I can see no basis upon which it can be claimed there is jurisdictional error.  The RRT considered carefully all the matters raised and relied upon by the applicant and further considered country information.  To the extent that I am required to do so, I would otherwise find the objection to competency should be allowed.  My preference, however, is to simply dismiss the application with costs on the basis that I am satisfied there is no jurisdictional error. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate: 

Date:  3 December 2004

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