M172 v Minister for Immigration & Anor

[2004] FMCA 23

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M172 v MINISTER FOR IMMIGRATION & ANOR [2004] FMCA 23

MIGRATION – Application for review of decision of the Refugee Review Tribunal – procedural fairness/natural justice – whether applicants were denied natural justice at the Tribunal hearing – applicants did not appear – notice of invitation to appear – Tribunal proceeded pursuant to section 426A of the Migration Act – applicant claims that the migration agent was not authorised to tell the Tribunal that he would not be attending the hearing and that they were misled by their migration agent – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.424C, 424C(1), 424C(2), 425, 425A, 425(1), 425(1)(a), 425(1)(b), 425(1)(c), 425(2)(b), 426A, 426A(1), 426A(1)(a), 426(1)(b), 426(1)(c), 426A(2), 441A

Plaintiff S157/2002 v Commonwealth of Australia (2002) HCA 2
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2002) HCA 1
Australian Broadcasting Tribunal v Bond (1990) 70 CLR 321
Al-Mehdawi v Secretary of State for the Home Department (1990) 1 AC 867
Tewedros Tadesse Haile v Immigration Appeal Tribunal (2002) INLR 283
Merie Hassa v Secretary of State for the Home Department (2003) EWHC 396 (Admin)
Maqsood v The Special Adjudicator the Secretary of State for the Home Department (2001) EWHC (Admin) 1003
SHJB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 303
Re MIMIA; Ex parte Lam (2003) HCA 6
Re MIMIA; Ex parte 'A' (2001) 185 ALR 489
Sullivan v Department of Transport (1978) 20 ALR 323
NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC

Applicant: M172

Respondent: THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION & ANOR

File No: MZ 513 of 2003

Delivered on: 23 January 2004

Delivered at: Melbourne

Hearing date: 14 January 2004

Judgment of: Bryant CFM

REPRESENTATION

Counsel for the Applicants: In person

Solicitors for the Applicants: In person

Counsel for the Respondent: Ms Riley

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. THAT the Application be dismissed.

2. That the Applicant pay to the Respondent's costs fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 513 of 2003

M172

Applicant

And

THE HONOURABLE PHILIP RUDDOCK, MINISTER FOR IMMIGRATION & ANOR

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants are husband and wife and claim to be citizens of Thailand.  They arrived in Australia on 29 March 2001.  On 20 April 2001 they lodged an application for protection (Class XA) visas with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth), (“the Act”) On 6 September 2001, a delegate of the Minister for Immigration refused to grant protection visas and on 4 October 2001 the applicants applied for a review of that decision.

2. The applicants originally arrived in Australia on visitors visas.  The second applicant makes no claims of her own but relied upon being a  member of the first applicant's family unit. 

3. By letter dated 1 July 2002 the Refugee Review Tribunal ("the Tribunal") invited the applicants to attend an oral hearing on 1 August 2002. The letter noted that if the applicants did not attend the hearing. the Tribunal could proceed to make a decision on the case without further notice. The applicants' authorised representative advised the Tribunal that the first applicant would not be attending the hearing. Neither applicant appeared at the hearing. In the circumstances, the Tribunal proceeded, pursuant to s.426A of the Act to make its decision. The Tribunal affirmed the decision under review by decision handed down 23 August 2002.

4. The applicants filed a draft Order Nisi in the High Court on

   
   

   27 September 2002.  On 7 February 2003 the matter was remitted to the Federal Court and on 19 May 2003 the matter was transferred to the Federal Magistrates Court.  The applicants in person filed contentions dated 25 June 2003.  On 26 June 2003 the applicants' former solicitor filed a notice of ceasing to act.

The applicant’s claims

1. The first applicant said in his application for a protection visa that he was a farmer with his own fields.  He further said that he feared that he would continue to be exploited and victimised by corrupt officials of the government.  In a statement lodged with his application he said that:

   ·He is a farmer who has been struggling since he can remember;

   ·They had been hard hit by corrupt government officials who accept bribes for everything.

   ·The officials set the price for the crops which is too little to support the farmers or allow them to make any progress.

   ·They have tried to bring this matter to the attention of the relevant authorities with numerous complaints and representations but nothing seems to be done about it.

   ·He realised that he does not fall within the strict guidelines of refugee status but asked to be considered on humanitarian grounds.

2. In his application to the Tribunal the applicant said that he feared he would be exploited if he returned to Thailand.  He made no further written submissions and did not attend the Tribunal hearing. No specific claims were made by the second applicant. 

3. The Tribunal noted that Thai farmers had made representations to government about their situation.  On this basis the Tribunal was prepared to accept that Thai farmers had more in common than just a shared occupation and that they constituted a particular social group within the meaning of the Refugees Convention.  The Tribunal found that the applicant was a member of a particular social group comprised of Thai farmers.

4. The Tribunal accepted that the applicant, along with other Thai farmers, had been the victim of corrupt officials who had taken a cut of the price received for crops produced by the farmers, with the result that the farmers faced economic hardship.  The Tribunal noted that the Refugees Convention does not give protection from economic hardship as such, although serious economic discrimination may suffice.

5. In this case the Tribunal noted that the applicants had not provided any details of the scale of the corruption, the amounts of money involved, whether further victimisation followed the complaints to the government or any other information that would assist the Tribunal to assess the nature and severity of the hardship that the applicants claimed.  In the circumstances, the Tribunal considered that it could not be satisfied that the applicants suffered economic hardship that was sufficiently severe or discriminatory as to constitute persecution. 

Grounds of review

1. The draft Order Nisi sets out the grounds of review but lists a broad array of alleged errors providing no particulars.  The applicants' contentions address only one issue.  The applicant did not make any submissions beyond what was contained in his contentions of fact and law.

2. The applicant contends that he was denied natural justice because he was not given the chance to put his case to the Tribunal.  He alleges that he did not authorise his migration agent to tell the Tribunal that he would not be attending the hearing. 

3. The Tribunal invited the applicants to attend the hearing. Section 425 of the Act says as follows:

425 – Tribunal must invite Applicant to appear

"(1) The Tribunal must invite the applicant to appear before the      Tribunal to give evidence and present arguments relating to the issue arising in relation to the decision under review.

Subsection (1) does not apply if:

(a)  The Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it or:

(b)  The applicant consents to the Tribunal deciding the review without the applicant appearing before it or:

(c)    Subsection 424C (1) or (2) applies to the applicant.

(3)If any of the paragraphs in subparagraph (2) of this section apply, the applicant is not entitled to appear before the Tribunal." 

1. Section 425A provides the information that must be contained in an invitation to appear and says as follows

425A – Notice of invitation to appear

"(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

(2) The notice must be given to the applicant:

(a)  Except where paragraph (b) applies - by one of the methods specified in s 441A or

(b)   If the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such persons.

(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

(4) The notice must contain a statement to the effect of s 426A." 

1. Section 426A deals with the manner in which the Tribunal is entitled to proceed if the applicant fails to appear and says as follows.

426 A – Failure of Applicant to appear before Tribunal

"(1) If the applicant:

(a)  Is invited under s 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;

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

This section does not prevent the Tribunal from re-scheduling 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 re-scheduled."

1. A letter was sent by the Tribunal dated 1 July 2002 to the applicant inviting him and his wife to come to a hearing of the Tribunal to "give oral evidence and present arguments in support of your claims".  The invitation advised that the date of the hearing was 1 August 2002 at

   
   

   2 pm.

2. On the 29 July 2002 an email transmission was sent from the applicant's migration agent to Michael Newman, who was identified in the letter of 1 July as the contact person in the Department.  The email transmission said that the applicant would not be attending the hearing.

3. The applicant asserts that his migration agent said he would handle the application and he was to leave everything to him.  He told the agent that he wanted to appeal to the Refugee Review Tribunal and an appeal was lodged.  He says that the agent told him of the letter inviting him to attend the hearing and that he was told by the agent that he would take care of it.  He contends that he never told the agent he did not want to appear at the hearing and gave the agent no authority to write to the Tribunal and tell them he would not be attending. He contends that he was denied natural justice in that he was not able to give an account to the Tribunal of the persecution he suffered at the hands of corrupt government officials.

4. Having received notification from the applicant's agent that he did not intend to appear, subject to s.426A, the Tribunal was entitled to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. Alternatively, s.425(2)(b) of the Act does not require the Tribunal to invite an applicant to appear at hearing if the applicant consents to the Tribunal deciding the case in the absence of the applicant.

5. The denial of procedural fairness or natural justice complained of in this case is unlike other cases in which Courts have found there has been a denial by the Tribunal of procedural fairness. It is not contended that the applicants were mislead by the Tribunal. It is not contended that there was any omission or failure to comply with the Act on the part of the Tribunal. It is contended that the breach of natural justice arose from the information given to the Tribunal by the applicant's migration agent.

6. The applicant contends that this is a serious breach of natural justice in that he was prevented from putting his case to the Tribunal and as such amounts to a jurisdictional error. Plaintiff S157/2002 v Commonwealth of Australia (2002) HCA 2; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2002) HCA 1.

The respondent's contentions

1. The respondent contends that an error of law consisting of a failure to address or comply with an express statutory provision will not always constitute a jurisdictional error, even in the absence of a privative clause.  It is submitted that only a "manifest" or "serious" error would amount to a jurisdictional error Plaintiff S157/2002 at paragraphs (12), (13) and (18) per Gleeson CJ, and [160] and(163) per Callinan J. The respondent further contends that if in a particular case the Tribunal is found to have been in error, relief will only be available to the applicant if in the absence of the error the decision could have been different.  Australian Broadcasting Tribunal v Bond (1990) 70 CLR 321 at 384.

2. More importantly however, the respondent contends that this case falls within the rubric of the decision of the House of Lords in Al-Mehdawi v Secretary of State for the Home Department (1990) 1 AC 867, where the House of Lords held that a party could not complain of a denial of natural justice where he lost the opportunity of presenting his case, not through any action of the decision maker but through the fault of his own advisers. Al-Mehdawi was concerned with an immigration case but the applicant was not a refugee. The solicitors then acting had erroneously sent notice of the hearing date to the applicant at a previous address and he had never received it.

3. Lord Bridge at page 893 identified the question as follows:

   "Does certiorari lie to quash a decision given without hearing the applicant for certiorari when the Tribunal giving a decision has acted correctly in the procedure adopted but the applicant was deprived of the opportunity to put his case by the negligence of his own legal advisers or otherwise without personal fault on the part of the applicant."

4. After identifying a number of matters in which a litigant might be left with no remedy through the failure of his own legal advisers, Lord Bridge concluded at page 898:

   "These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his advisers to whom he has entrusted the conduct of a dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him, at all events, when the subject matter of the dispute raises issues of private law between citizens.  Is there any principle which can be invoked to lead to a different conclusion where the issue is one of public law and where the decision taken is of an administrative character rather than the resolution of a lis inter partes?  I cannot discover any such principle or none has been suggested in course of argument."

5. In noting that the decision appeared harsh, Lord Bridge pointed out (at page 901) that the Secretary of State had discretion to extend the time if he was of the opinion that by reason of special circumstances it was right and just to do so.

6. The respondent in this case has submitted that a similar discretion exists under the Act. Section 417 enables the Minister to make a more favourable decision if the Minister thinks it is in the public interest to do so. The respondent submits therefore that the application of Al-Mehdawi would not result in the applicant being left without any remedy. 

Conclusion

1. The respondent was unable to direct me to any Australian case in which Al-Mehdawi had been directly applied in similar circumstances. However, Al-Mehdawi has been distinguished in several asylum cases in England : Tewedros Tadesse Haile v Immigration Appeal Tribunal (2002) INLR 283 at paragraph 26,  Merie Hassa v Secretary of State for the Home Department (2003) EWHC 396 (Admin) at paragraph 46, and Maqsood v The Special Adjudicator the Secretary of State for the Home Department (2001) EWHC (Admin) 1003. In Maqsood, Mr Justice Stanley Burnton said , at paragraph 43:

   "Haile is authority for the proposition that, at least in an asylum case, in the interests of justice, a decision of a tribunal (in that case the Immigration Appeal Tribunal) may be quashed even where it has made no error, if, through no fault of the tribunal or the parties, it was unaware of facts relevant to the issue before it and where the failure to bring the matter to the attention of the tribunal was that of the appellant's legal representatives.  It is understandable that the position in relation to asylum cases should be different, given the potential consequences to an appellant of the mistaken rejection of his claim."

2. There is however reason to be cautious in relying on English authorities in this area: SHJB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 303, at paragraphs 29 to 31. All the Australian authorities require some defect in the decision making process. Re MIMIA; Ex Parte Lam (2003) HCA 6, where at paragraph 105 McHugh and Gummow JJ said:

   "But the failure to meet that expectation does not reasonably found a case of denial of natural justice. The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in this particular case. The ends sought to be attained by the requirement of natural justice may be variously identified. But at least in a case such as this the concern is with the fairness of the procedure adopted rather than the fairness of the outcome. It is with the decision-making process not the decision, as Lord Brightman put it (98). What is delivered by the requirement of natural justice is the right to a hearing, a technical expression in law, before action is taken."

3. See also Re MIMIA: Ex Parte ‘A’ (2001) 185 ALR 489 and Sullivan v Department of Transport (1978) 20 ALR 323 at page 343 where Deane J said:

   "In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable "opportunity" to present his case. Neither the Act nor the Common Law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled."

4. In NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous (2003) FCAFC 52, Lindgren and Stone JJ suggested that it is necessary to determine the scope and content of the requirements for natural justice in the particular factual circumstances of the case and whether those requirements were met. What must be demonstrated is “unfairness” and the concern of the law is to avoid “practical injustice”.

5. The applicants were unrepresented. Not surprisingly, no authorities were cited in support of their contentions. The assertion of the applicants that they were misled by their migration agent was not an admitted fact, and no evidence was led to support it. A mere allegation falls far short of establishing procedural unfairness, however described, and the applicants have failed to make out their case and the application must be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate:  Peter Smith

Date:  23 January 2004