NAJG v Minister for Immigration

[2003] FMCA 310

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAJG v MINISTER FOR IMMIGRATION [2003] FMCA 310

MIGRATION – Review of RRT decision – application for a protection visa – whether the applicant has a well-founded fear of persecution – whether hearing invitation was received – whether there was a breach of s.425 of the Migration Act – whether there was a denial of procedural fairness or jurisdictional error in the RRT decision.

Migration Act 1958 (Cth), ss.425, 441C

SZAEG v Minister for Immigration [2003] FMCA 258

Applicant: NAJG

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 453 of 2003

Delivered on: 21 July 2003

Delivered at: Sydney

Hearing date: 21 July 2003

Judgment of: Driver FM

REPRESENTATION

For the Applicant: In Person

Counsel for the Respondent: Mr J Smith

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs and disbursements of and incidentals to the application fixed in the sum of $3,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 453 of 2003

NAJG

Applicant

And

MINISTER FOR IMMIGRATION

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is an application to review a decision of the Refugee Review Tribunal made on 5 December 2002 and handed down on 14 January 2003.  The decision of the RRT was to affirm a decision of a delegate of the Minister not to grant to the applicant a protection visa.

2. The applicant is from Bangladesh. He arrived in Australia on 3 November 2000 and he applied for a protection visa on 27 November 2000.  The applicant claimed a protection via on the basis of a fear of political persecution in Bangladesh.

3. The grounds in the application for review are: first, that the RRT did not consider the applicant as a refugee in accordance with the Refugee Convention and Protocol;  secondly, that the procedures required to be observed under the Migration Act 1958 (Cth) (“the Migration Act”) were not observed; thirdly, that the RRT ignored the merits of the claim; fourthly, that the RRT misjudged the fate of the claim; fifthly, that the RRT made a number of errors to decide the application for a visa; sixthly, that the applicant was deprived of natural justice or procedural fairness; and finally, that the RRT made a number of errors to decide the fate of the applicant's claim.

4. The application was supported by a short affidavit filed the same day that explained the applicant’s circumstances in Bangladesh.  As Mr Smith noted in paragraph 3 of his written submissions filed on 17 July 2003 the grounds of review were not particularised.  The grounds of review appear to be generic, however the applicant has filed written submissions on 21 July 2003.  In those submissions the applicant raises an issue of substance concerning procedural fairness.  The applicant states and he has stated also orally before me that he did not receive correspondence from the RRT.  He also states that he did not receive any notification of the RRT hearing either from the RRT or from his migration agent.

5. The circumstances in which the hearing before the RRT took place are somewhat unusual.  This is set out in Mr Smith's written submissions in paragraphs 6, 7, 8, 9, and 10.  I adopt those paragraphs by way of background for purposes of this judgment as follows:

   On 13 February 2001 a delegate of the Respondent made a decision to refuse to grant the Applicant a protection visa and the Applicant applied, through his migration agent, to the Tribunal for review of that decision. The Applicant appointed as his agent, Mr Mofazzal Haque Kazi and asked the Tribunal to send all correspondence relating to his application to his agent [CB 61]. The agent’s address was given as Suite 17, Business Centre, 296 Marrickville Road, Marrickville, New South Wales. By letter dated 31 October 2002, sent to both the Applicant’s agent and to the Applicant at the Applicant’s own address given on the application to the Tribunal, the Tribunal invited the Applicant to attend a hearing in order to give oral evidence and present arguments in support of these claims [CB 64-65]. By letter dated 4 November 2002, again addressed and sent to both the Applicant and his agent at the addresses given on the application for review [CB 69], the Tribunal informed the Applicant that it had received his application for a visitor visa and that it raised questions regarding his identity and the credibility of the other information contained in his protection visa application. In particular, the Tribunal referred to the fact that the picture in the visitor visa application did not appear to be of the same person as that contained in the protection visa application, that the protection visa application stated that the Applicant was single whereas the visitor visa application stated that he was married and the visitor application stated that the Applicant was employed in a particular position that was not referred to in the protection visa application. The Tribunal requested that the Applicant’s passport to be sent to the Tribunal immediately so that it could be properly examined and stated that any comments on other matters (that is, other than the passport) may be made in writing or at the hearing scheduled for 5 December 2002.

   The Applicant did not respond to this letter and did not attend the hearing scheduled by the Tribunal.

   On 14 January 2003 the Tribunal handed down its decision affirming the decision of the delegate.

   In the statement prepared by the Tribunal under Section 430(1) of the Migration Act 1958 the Tribunal set out the claims and evidence which were before it and referred to both the invitation to attend the hearing and to the letter dated 4 November 2002 in respect of the Applicant’s visitor’s visa application.

   The Tribunal did not accept that the Applicant was who he said he was. In addition, the Tribunal found that there remained many unanswered questions in the respect of the Applicant’s situation in Bangladesh, for example, the nature of the charges allegedly laid against him and why he did not obtain the services of a lawyer and defend himself. On the basis of these matters the Tribunal was not satisfied that the Applicant met the criteria for the grant of the visa and accordingly affirmed the decision of the delegate.

6. In brief an issue arose concerning the identity of the applicant.  The applicant it appears used a different name on his protection visa application than he used on documents he used to travel to Australia.  The conflicting material raised a serious issue of concern to the RRT as to the identity of the applicant.  The RRT wrote to the applicant about this.  The relevant letter is set out at page 69 of the court book.

7. The RRT also wrote to the applicant on 31 October 2002 to invite him to a hearing.   Both letters were sent by registered post but were returned to sender when left unclaimed.  The applicant did not attend the hearing before the RRT.  In its reasons for decision the RRT stated as follows:

   In this case it appears that the applicant is not who he claims to be.  Furthermore, many questions regarding his situation in Bangladesh remain unanswered. For example, the nature of charges allegedly laid against [him] and why, if he is innocent, he did not obtain the services of a lawyer and defend himself.  If the man who currently calls himself [the name used by the applicant] attended the hearing it might have been possible to clarify these matters.  However, he chose not to do so and on the evidence before me I cannot be satisfied that he has a well founded fear of persecution for any of the reasons contained in the Convention. 

8. The applicant in these proceedings states that he did not chose not to appear before the RRT but he was denied the opportunity to appear before the RRT. He says that he was denied the opportunity because he did not receive relevant correspondence from the RRT. This he asserts amounts to procedural unfairness. It could also constitute a breach of s.425 of the Migration Act. I do not have any direct evidence of whether the applicant was aware of the hearing before the RRT.

   
   

   I can infer that he did not receive the hearing invitation sent to him because it was returned to sender.  However, it is clear from page 61 of the court book that the applicant appointed a migration agent before the hearing invitation was sent.  The hearing invitation was also sent to the applicant's migration agent.  The invitation was also sent by registered post and was not returned.

9. In the circumstances, it is in my view likely that the hearing invitation was received by the migration agent.  In the circumstances it is surprising that the applicant did not hear about the hearing from his migration agent.  If the migration agent failed to inform the applicant of the hearing the migration agent would have been at fault.  However, that failure, if it occurred, was not the fault of the RRT.  Such a failure on the part of the applicant's migration agent does not render the procedure adopted by the RRT unfair.

10. Under s.441C of the Migration Act the applicant is deemed to have received a document sent by a prescribed method 7 working days after the date of the document. Other provisions of the Migration Act are relevant, which I dealt with in SZAEG v Minister for Immigration [2003] FMCA 258. According to the record of the RRT proceedings the letters from the RRT raising the issue of identity and inviting the applicant to attend the hearing were sent to the last known address given by the applicant. In the circumstances I find that s.441C of the Migration Act operates and that the applicant is taken to have received notification from the RRT. Accordingly, there is no breach of s.425. In addition, in the circumstances that the RRT was not informed of a change of address by the applicant there was no procedural unfairness under the general law.

11. I find that no jurisdictional error has been demonstrated by the applicant.  The Hickman provisos to the privative clause in s.474 of the Migration Act are established. In the circumstances the decision of the RRT is a privative clause decision and I will dismiss the application.

12. On the question of costs, the applicant having been wholly unsuccessful, Mr Smith has sought an order for costs on behalf of the Minister.  Mr Smith submits that an order fixed in the sum of $3,500 on a party/party basis would be appropriate.  The applicant submits that an order for costs, at least in that sum, should not be made because he is not working and cannot afford to pay.  However, as is well established by decisions of the Federal Court and this court, impecuniosity is not a reason not to make a costs order.  Impecuniosity may be an issue bearing upon the Minister's consideration of whether, and if so how, to pursue an order for costs.

13. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application which I fix in the sum of $3,500.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  24 July 2003