NAWV v Minister for Immigration

[2005] FMCA 220

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAWV v MINISTER FOR IMMIGRATION [2005] FMCA 220

MIGRATION – Application to review decision of Refugee Review Tribunal – whether lack of procedural fairness – applicant failed to notify Tribunal of change of address and did not attend Tribunal hearing. 

Abebe v The Commonwealth (1999) 197 CLR 510
Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154 of 2002 (2003) 201 ALR 437

Applicant: NAWV

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG2935 of 2003

Judgment of: Barnes FM

Hearing date: 24 February 2005

Delivered at: Sydney

Delivered on: 24 February 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr G Johnson

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application is dismissed.

2. That the applicant pay the respondent's costs set in the amount of $4,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2935 of 2003

NAWV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 8 September 2003 and handed down on 2 October 2003. 

2. The applicant, a citizen of Mongolia, claimed to fear persecution in Mongolia by reason of his political opinion.  He claimed that as a policeman he had expressed his views about police corruption and had reported his ‘findings’ about connections between local and state police authorities and organised crime groups and their involvement in money laundering to the office of the public prosecutor.  As a result he had received threats from the criminals.  He claimed that he was beaten and warned that he would face death if he continued to expose corruption in the police and that he feared being mistreated by members of the organised crime groups.  He claimed that the authorities would not protect him as they were corrupt. 

3. The application was refused by a delegate of the respondent and the applicant sought review by the Tribunal in an application signed by him on 14 November 2002 and received by the Tribunal on

   
   

   15 November 2002 which repeated the claims made in the protection visa application. 

4. That application gives a common home and mailing address for the applicant.  Section C of the review application is completed.  In that section the applicant nominated a named migration agent as his authorised recipient.  He authorised the authorised recipient to act on his behalf in relation to the case.  An address for the authorised recipient was provided. 

5. On 26 November 2002 the Tribunal received a change of address form completed by the migration agent on behalf of the applicant.  That provided a new home and mailing address.  On 26 June 2003 the Tribunal wrote to the applicant at the address provided for his home and mailing address in the November 2002 change of address notification.  
   A copy of this letter was sent to the applicant's migration agent, the nominated authorised recipient.  That letter stated that the Tribunal had considered the material before it in relation to the application but was unable to make a decision in the applicant's favour on that information alone.  It invited the applicant to attend a hearing on 12 August 2003 at a place and time specified.  It advised that if the applicant did not attend the hearing and the Tribunal did not postpone it, it could make a decision on the case without further notice. 

6. The Tribunal file reveals that on 15 July 2003 the applicant's migration agent wrote to the Tribunal acknowledging receipt of a copy of the response to hearing invitation, advising that the applicant had instructed the agent that he would respond to this invitation personally, that it had come to the writer's attention that the applicant had not done so, that on 15 July 2003 the migration agent again contacted the applicant and that the applicant had confirmed he did not need the agent’s assistance for the response.  The agent advised that therefore he could not respond to the invitation on the applicant's behalf.  There is a second letter to the same effect of the same date from the migration agent which also related to another matter.  The applicant did not attend the Tribunal hearing. 

7. In its reasons for decision the Tribunal set out the fact that it had invited the applicant to attend a hearing, had received no response from him and that the letter to the applicant was returned to the Tribunal marked ‘Return to Sender’.  The applicant had not provided a contact telephone number.  The only telephone number provided was that of the migration agent.  The Tribunal stated that it had contacted the adviser who had replied that he had been advised by the applicant that he (the applicant) would be responding to the hearing invitation.  The Tribunal also noted that the Department's files did not contain a more recent address for the applicant and that the movement details records indicated that he had not left Australia.

8. The applicant did not appear before the Tribunal on the date scheduled for the hearing. Pursuant to section 426A of the Migration Act 1958 the Tribunal made its decision without taking any further action to enable the applicant to appear. 

9. The Tribunal set out the applicant's claims.  However it found that the presentation of his claims was vague and lacking in detail in several important respects such that the Tribunal was unable to establish all the relevant facts.  It pointed out that where broad allegations are made, the hearing is normally an opportunity for the Tribunal to gather detail.  The applicant had been put on notice that the Tribunal could not make a favourable decision on the information before it, but no further information had been provided.  The Tribunal stated that relevant questions were unanswered.  It referred to a number of areas in which there was a lack of necessary detail.  There was no documentation to support the applicant’s claim that he was a policeman, no detail of the claimed evidence of police corruption or the circumstances in which it was found or whether it was reported to any other officials beyond the public prosecutor's office.  Nor was detail provided about the applicant's claims of threats and assault by criminals.  The Tribunal also had regard to independent country information, which was contrary to claims of the applicant, about the extent of involvement of the Mongolian authorities with organised crime groups.  On the basis of the vagueness and lack of detail the Tribunal was unable to accept that the applicant was a policeman, that he was involved in exposing corruption in the police force or that he was beaten up by criminals and threatened with death.

10. The Tribunal went on to say that even if it accepted the applicant's claims it did not accept that he would be persecuted by criminals for reason of his political opinion or because of the opinion imputed to him.  The Tribunal was mindful of the need for there to be a Convention related reason for persecution, but found nothing in the evidence before it to indicate that the motivation of the criminals was anything other than wishing to prevent the applicant from exposing their ties to the police and to ensure that they themselves were not apprehended. 

11. The Tribunal found that the applicant did not have a well founded fear of persecution by reason of his political views and activities or for any other Convention reason if he returned to Mongolia. 

12. The applicant sought review of the Tribunal decision by application filed in the Federal Court on 16 October 2003.  The matter was transferred to this court.  The applicant relies on an amended application filed on 30 March 2004.  The ground in that application is that the Tribunal failed to accord procedural fairness to the applicant and consequently made an error of law and exceeded jurisdiction. 

13. The applicant did not file written submissions, but in oral submissions complained of his treatment by his former migration agent.  He indicated that he had been reassured by that migration agent that he had some 18 months in which he need not worry.  He acknowledged that he had been notified by the Tribunal that he had to inform it of a change of address, but claimed that he had had to move several times and thought that when he had obtained a permanent address he would tell the Tribunal.  He confirmed that he did not notify the Tribunal of all his changes of address.  He disputed the agent’s claim in his letter to the Tribunal that he had discussed with him the need to respond to the hearing invitation.  He contended that he had not been told about the Tribunal hearing and that if he had known about the hearing he would have attended it. 

14. The ground relied on is a failure to record procedural fairness.  It is recognised in the amended application that it is necessary for the court to be satisfied that the Tribunal, by failing to accord procedural fairness, fell into jurisdictional error.  However, insofar as the applicant’s complaints address the claimed conduct of his migration agent, they are relevant in these proceedings only if they go towards establishing that the Tribunal failed to accord procedural fairness in a manner constituting a jurisdictional error. 

15. Counsel for the respondent properly and helpfully addressed the court on broader issues, such as whether the Tribunal had complied with the procedural requirements of the Migration Act 1958. This is a case to which section 422B of the Migration Act applies. However, for reasons that I will give, I am not satisfied either that there has been a failure by the Tribunal to comply with the provisions of the Migration Act or that there has been any lack of procedural fairness or denial of natural justice. Hence it is not necessary in these proceedings to consider the precise scope of section 422B.

16. In particular I am satisfied that the Tribunal met its obligation to invite the applicant to appear under section 425 of the Act and that the notice of invitation to appear dated 26 June 2003 met the requirements of section 425A.  It gave notice of the requisite details and was sent not only to the applicant's authorised recipient consistent with section 441G of the Act, but also to the applicant’s home address and mailing address notified to the Tribunal on 26 November 2002 by the migration agent who was the authorised recipient.  I note in that respect that in the application for review the applicant had authorised the migration agent to act on his behalf in relation to the case. 

17. The notice was given to the applicant in accordance with section 441A(4) of the Migration Act. The applicant complains that he did not receive the notice sent to him. That is consistent with the Tribunal's statement that the letter to him was remitted to it marked ‘return to sender’. However, not only did the Tribunal comply with its statutory obligations, but it is apparent that on the information before it there was no other way in which it could inform the applicant. It notified him at the only address provided as the current home and mailing address. The applicant was aware of the obligation to notify the Tribunal of any change of address. If he failed to do so, as he concedes, such failure does not give rise to a denial of procedural fairness amounting to jurisdictional error on the part of the Tribunal. The Tribunal also notified his migration agent and there is no suggestion that the agent's authority to represent the applicant or to be his authorised recipient was at any stage withdrawn. The applicant’s complaints about the conduct of his migration agent do not establish that the Tribunal fell into jurisdictional error.

18. In these circumstances no lack of procedural fairness is established in the manner in which the Tribunal went about its task in inviting the applicant to appear. Further, in those circumstances the Tribunal was entitled, under section 426A, to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. More generally it was open to the Tribunal to proceed to make a decision on the evidence before it. As was stated in Abebe v The Commonwealth (1999) 197 CLR 510 at paragraph 187 by Gummow and Hayne JJ and adopted by Gummow and Heydon JJ with whom Gleeson CJ agreed in MIMA Ex parte Applicant S154 of 2002 (2003) 201 ALR 437 at [57], it is for the applicant to advance whatever evidence or argument he wishes to advance and for the Tribunal to decide whether the claim is made out.

19. In this instance the Tribunal did not accept the applicant’s claims.  In essence his claim failed for want of credibility, given the vagueness and lack of detail in the evidence before the Tribunal.  The findings that the Tribunal made in that respect were open to it on the material before it.  Further, it went on to consider the claims expressed in terms of political opinion and in relation to other Convention grounds in its finding that the persecution complained of (which was persecution by criminals with a criminal motivation) had not been shown to be for one of the Convention grounds.  The Tribunal dealt with this issue in the finding that there was nothing in the evidence before it to indicate that the motivation of the criminals was anything other than that they wished to prevent the applicant from exposing their ties to the police and to ensure that they themselves were not apprehended.  The Tribunal did not accept the specific claim that the applicant was persecuted by reason of an actual or imputed political opinion or for any other Convention ground. 

20. No lack of procedural fairness or other jurisdictional error has been established.  The applicant contends that the Tribunal made an error of law and exceeded jurisdiction.  That has not been established on the material before me.  Accordingly, the application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  There is nothing to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.  The amount of $4,250 is appropriate having regard to the nature of this and other similar matters.  

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  8 March 2005.