MZXDU v Minister for Immigration
[2006] FMCA 691
•12 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXDU v MINISTER FOR IMMIGRATION | [2006] FMCA 691 |
| MIGRATION – Protection visa – Refugee Review Tribunal – applicant not receiving notice of Tribunal hearing – whether procedural fairness require Tribunal to give notice to applicant's addresses in previous court proceedings – whether Tribunal's duty to give notice satisfied by giving notice to the address provided to the Tribunal. |
| Migration Act 1958 (Cth), ss.425-426A,441A,441C |
| Minister for Immigration & Multicultural Affairs v Mohammad [2000] FCA 1275, 101 FCR 434 Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759, [31] |
| Applicant: | MZXDU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| File number: | MLG 1336 of 2005 |
| Judgment of: | Phipps FM |
| Hearing date: | 21 March 2006 |
| Date of last submission: | 21 March 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 12 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fitzpatrick |
| Solicitors for the Applicant: | Satchi & Co |
| Counsel for the Respondent: | Mr Heerey |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs fixed at $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1336 of 2005
| MZXDU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Sri Lanka. After arriving in Australia in May 1997 he applied for a protection visa. The visa was refused and he applied to the Refugee Review Tribunal. In April 2000 the Tribunal affirmed the delegate’s decision.
The Tribunal's decision was set aside by consent in the Federal Court and remitted for reconsideration. The applicant did not attend at the time and place fixed by the Tribunal for the remitted hearing. He did not attend because he did not receive the Tribunal's notice of the hearing. The Tribunal sent the notice to the address it had for the applicant, but the applicant no longer lived there. In the court proceedings which led to the first Tribunal decision being set aside, the applicant had given other addresses in affidavits that were filed.
The Tribunal at the remitted hearing again affirmed the delegate’s decision. The issue in this application is whether there was a breach of natural justice or procedural fairness, or any breach of essential statutory requirements, in the way in which the Tribunal sent notice of the hearing to the applicant. The applicant submits that the Tribunal should have given notice to at least one of the addresses given in his affidavits.
History of application
The applicant’s visa application was in a different name to his passport name. In a written statement in support of the second application, he claimed that his passport name was false, and set out the background to his claim for refugee status.
When he made his application for review with the Tribunal on
20 September 1997 the applicant used his passport name. He gave 20/6 Garnett Street, Brunswick as both his home address and his address for service. The application stated that the applicant wished copies of correspondence to go to his adviser.
A letter from the applicant to the Tribunal dated 20 January 1998 gives 20/6 Garnett Street, Brunswick as his address and states that his previous adviser is no longer acting for him. It states that his visa application name is his real name and his passport name was a name used to enter Australia.
A letter from the Tribunal dated 17 March 2000 to the applicant at 20/6 Garnett Street, Brunswick invited him to appear at a hearing on
18 April 2000. It was returned marked not at this address. The same occurred with a further letter dated 27 March 2000.
On 26 April 2000, and by reference to the applicant's passport name, the Tribunal affirmed the delegate's decision not to grant a protection visa. The Tribunal's decision found that the department's movement records indicated that the applicant was not in Australia and that he left Australia on 15 October 1997. Consequently he did not satisfy the requirement for a protection visa that he be in Australia.
The applicant joined the Muin and Lie proceeding in the High Court. After the success of the proceeding the applicant filed an application in the High Court on 20 May 2003. That application was remitted to the Federal Court, and on 30 August 2004 consent orders were made setting aside the Tribunal decision and remitted it for reconsideration.
The Tribunal wrote to the applicant at 20/6 Garnett Street, Brunswick on 18 September 2004. The letter was returned unclaimed. The Tribunal wrote again on 30 September 2004 advising that it was unable to make a decision on the basis of the information given and inviting the applicant to attend the hearing.
The applicant did not attend the hearing and the Tribunal again affirmed the delegate's decision not to grant a visa.
The Tribunal's decision
The Tribunal accepted that the applicant is a Sri Lankan National.
He claims he is of the Sinhalese ethnicity and Christian religion.
The Tribunal accepted that he was of Sinhalese ethnicity, but noted that the applicant had not indicated in his application which Christian denomination, if any, he practices.
The Tribunal set out questions it would have asked the applicant if he had attended the hearing and then said that based on the limited evidence before it, it was not satisfied that he was a Christian as claimed. That meant that the Tribunal found that the applicant has not suffered persecution on the basis of his religious beliefs as a Christian. These included his claims in relation to harassment from Buddhist monks during the visit of the Pope to Sri Lanka, and his general claim to persecution on account of his Christian religion.
The applicant claims that he and his father were active supporters of the United Nation Party, that he was a prominent platform speaker and that as a result of his political involvement he suffered harm from supporters of rival parties.
The Tribunal said that the applicant had not provided a membership card to indicate he was ever a member of the UNP. The Tribunal set out a series of questions it would have asked him if he had attended the hearing. It said that based on the limited information before it, it was not satisfied that the applicant was ever a member or active supporter of the UNP or that he was a prominent platform speaker. It found that it was not satisfied about the alleged threats, including a specific claim of an incident when youths came to his home. It therefore was not satisfied that he had been persecuted or threatened because of his political affiliation.
The Tribunal referred to the applicant’s claim that when he returned to Sri Lanka in 1996 he was detained at the airport for a few hours.
He claimed he was subsequently released but that he continued to be harassed on the basis of his religion and his imputed political opinion. He claimed that in his absence police had raided his house and harassed his mother, stating that he would be severely dealt with if he did not surrender to police. He claimed that the government had used thugs to damage his belongings and his house.
The Tribunal said that if the applicant had attended the hearing it would have asked him a series of questions which the Tribunal set out. It then said that based on the limited information it had, it was not satisfied that the alleged incidents took place.
The Tribunal referred to the applicant’s claim that he was denied his right of freedom of opinion and expression by the government in Sri Lanka. The Tribunal said that if the applicant had attended the hearing it would have asked him questions about this. It said that based on the limited information available to it, it found that he was not denied his right of freedom of opinion and expression.
Consequently, the Tribunal found that the applicant did not have a well founded fear of persecution within the meaning of the Refugee Convention.
The notice requirement
Sections 425 to 426A (inclusive) and 441A set out the requirements for a Tribunal to invite an applicant to appear to give evidence and present arguments and the giving of notice to the applicant of the time and place of the hearing.
The facts in Minister for Immigration & Multicultural Affairs v Mohammad [2000] FCA 1275, 101 FCR 434, are similar to the present case. A decision of the Tribunal was set aside and remitted for rehearing. Between the time when the Tribunal delivered the first decision and the Federal Court decision to remit his application to the Tribunal the applicant moved address. The Court and the Minister’s solicitor knew of the new address, but the Tribunal was not notified. The Tribunal sent notice of the second hearing to the applicant's original address, the address the Tribunal had. The applicant did not receive it and so did not attend the hearing. The decision to refuse the visa was again affirmed.
When Mohammad was decided, s.441A(1)(a)(i) required the letter giving notice of hearing to be sent to "the last address for service provided by the applicant in connection with his or her application for review". The court decided in Mohammad that that meant the address provided to the Minister and his solicitor's in the court proceedings. Consequently, the Tribunal had not complied with the notice requirement and the second Tribunal decision was set aside.
After Mohammad the section was amended so that the letter is now to be sent to "the last address for service provided to the Tribunal by the recipient in connection with the review" or "the last residential business address provided to the Tribunal by the recipient in connection with the review". The recipient is the applicant for review.
The hearing requirement
The Tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. An applicant is to have an opportunity to attend the oral hearing. The invitation must not be a hollow shell or empty gesture (Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759, [31], Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140, [35]).
If the applicant does not appear, the Tribunal may make a decision without taking any further action to enable the applicant to appear (s.426A(1)). The condition of non-appearance is not necessarily satisfied by the applicant's failure to present personally (Xiao v Minister for Immigration & Multicultural Affairs [2000] FCA 1472, [28]).
When the Tribunal decides to proceed in the absence of an applicant it must give the applicant procedural fairness. An example is when an applicant wants to have the hearing adjourned or postponed (NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121).
In this case the applicant argues that to satisfy the requirements of procedural fairness the Tribunal should have given the applicant notice at the other addresses.
The amendment to s.441A was after the decision in Mohammad. It is reasonable to say the amendment is in response to the decision in Mohammad. Since the amendment Ryan J held in VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1474 [15] that the effect of ss.425, 425A, 441A, and 441C is that the fact that the applicants never became aware of the invitation to appear does not displace the conclusion mandated by s.441C that it was duly given to them.
Jacobson J in SZAOZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 103 at [15] said that any unfairness to the applicant was not the fault of the Tribunal, which followed the statutory scheme of giving notice and then proceeding with the hearing. SZAOZ is a case similar to this one where notice had been sent to the address which had been given to the Tribunal, and the notice was returned unclaimed.
The Tribunal here has complied with the statutory scheme. It has sent the notice to the address the applicant gave to the Tribunal, even if some years earlier. The Tribunal says in its reasons that on 18 and 19 October 2004 the Tribunal attempted to contact the applicant at the last telephone number provided to the Tribunal but no answer was received on each occasion when the number was dialled.
The evidence about the applicant's other addresses is that they are given as his address on an affidavit filed in the High Court and in an affidavit filed in the Federal Court. The Tribunal is a respondent to the proceedings, but there is nothing to show that the application or either affidavit were served on the Tribunal. It cannot be assumed that they were. The Tribunal obviously knew of the Federal Court order setting aside the first decision, but that notification could have come from the first respondent's Department or the first respondent’s solicitors.
The Tribunal takes no part in review proceedings. It does not appear to have filed an appearance. A finding cannot be made that the Tribunal was aware of the other addresses, and there is nothing in the circumstances to say that it should have been aware.
If there are any requirements of procedural fairness that require the Tribunal, when sending a notice of hearing, to go beyond the address it has been given, they have not been breached in this case.
The application is dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate:
Date: 12 May 2006
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