S169 of 2003 v Minister for Immigration

[2006] FMCA 1305

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S169 OF 2003 v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1305

MIGRATION – Application to review decision of Refugee Review Tribunal.

Migration Act 1958, ss.65, 425, 425A, 426A, 441A
Migration Legislation Amendment Act (No 1) 1998
Federal Magistrates Court Rules 2001, r.1.05

Al Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876
Applicant S61 of 2002 v Refugee Review Tribunal [2004] FCAFC 150
Applicant S370 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 581
Applicant S422 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 89
B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30
B41 of 2003 v Refugee Review Tribunal [2005] FCAFC 4
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215

Applicant: APPLICANT S169 OF 2003

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2288 of 2005

Judgment of: Barnes FM

Hearing date: 7 August 2006

Date of Last Submission: 21 August 2006

Delivered at: Sydney

Delivered on: 8 September 2006

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Mr J. Potts

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2288 of 2005

APPLICANT S169 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The application before the Court is an application for orders nisi for the issue of constitutional writs that was filed in the High Court on 6 May 2003 supported by an affidavit of the respondent sworn on that date.  The application was remitted by the High Court to the Federal Court and then transferred to this Court.  Directions were made in this Court by consent for the filing of further affidavit evidence and written submissions and the matter was listed for hearing on 7 August 2006. 

2. The applicant sought orders nisi in respect of a decision of the Refugee Review Tribunal (the Tribunal) made on 24 November 2000 and handed down on 14 December 2000 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

3. A procedural issue is raised by the manner in which the proceedings were commenced.  As indicated, the applicant sought orders nisi for constitutional writs in the High Court.  When the proceedings were remitted to the Federal Court Order 51A Rule 5 of the Federal Court Rules became applicable.  That Rule provides that when the Federal Court hears an application remitted by the High Court for an order nisi for a constitutional writ it will, at the same time, hear the parties on whether, if the order nisi were made, it should be made absolute.  In a particular case the court may order that that rule does not apply.  It was submitted for the first respondent that, similarly, in this Court the application should be treated as one for constitutional writs on a final basis (see Applicant S422 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 89 and Applicant S61 of 2002 v Refugee Review Tribunal [2004] FCAFC 150 at [24] per Branson J).

4. The Federal Magistrates Court Rules 2001 are silent in relation to remittal of applications for an order nisi.  However, as I held in Applicant S370 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 581 at [1] – [4], it may in certain circumstances be appropriate pursuant to Rule 1.05(2) of the Federal Magistrates Court Rules to apply Federal Court Order 51A Rule 5 and to deal with the merits of the application by entertaining on an inter partes basis the application for the writs sought by the applicant.  I consider that this is such a case.  Both the applicant and the first respondent are before the Court.  The applicant did not oppose the Court proceeding in the manner suggested by the respondent in the written submissions filed on 2 August 2006.  In all the circumstances I consider that it is appropriate to proceed on that basis.  However, for the reasons which I give below, I am satisfied that the application for writs of prohibition, certiorari and mandamus should be dismissed. 

5. The background to this application is that the applicant, who is a citizen of Pakistan, arrived in Australia in July 1998 and applied for a protection visa in October 1998.  In his protection visa application the applicant claimed that he had worked as a commission agent in Pakistan, but had left the country to avoid being killed by the Taliban from Afghanistan.  He claimed that in April 1998 a group of men had approached him at his business and demanded money for the cause of the Taliban.  At the same time they had demanded that he sell heroin.  He claimed that he had refused and that later a drug lord came to him and warned him that he must either join them or be killed.  The applicant claimed that he entrusted his business to his brother and left the country and that the military authorities in Pakistan could not protect him because they subscribed to the Taliban cause. 

6. The application was refused by a delegate of the first respondent.  The applicant sought review by the Tribunal.  In connection with his application for review the applicant claimed that the people who approached him to join their cause were Talibans from Afghanistan, that he did not subscribe to their cause and therefore he could not help them under any circumstances. 

7. In his application for review the applicant provided a home address and an address for service care of a migration agent who he authorised to act for him in relation to the application.  On 8 September 2000 the Tribunal wrote to the applicant by letters sent by registered post both care of his migration agent and also to the home address provided by the applicant, advising him that it had looked at all the material relating to his application but was not prepared to make a favourable decision on that information alone and inviting him to attend a hearing at a date, time and place specified.  The letter advised the applicant that if he did not attend the hearing and a postponement had not been granted it may make a decision on his case without further notice.  The hearing was scheduled for 1 November 2000. 

8. The Tribunal reasons for decision record that the applicant did not attend the scheduled hearing and that he did not contact the Tribunal.  The letter addressed to the applicant at his last known place of residence was returned unclaimed to the Tribunal on 6 November 2000.  The Tribunal reasons for decision record that the applicant’s representative informed an officer of the Tribunal that he had no knowledge of the applicant’s whereabouts.  In those circumstances the Tribunal was satisfied that it had discharged its obligations to give the applicant an opportunity to appear before it to give evidence and proceeded to make a decision on the basis of the material already before it. 

9. In the findings and reasons part of its decision the Tribunal referred to the fact that the law requires the Minister (and hence the Tribunal) to be satisfied that an applicant for a protection visa satisfies the prescribed criteria for the grant of that visa and continued:

   In the present case the Applicant’s claims as set out in his original application raise a great many questions.  It is not clear for example, why the Applicant considered that he could not obtain the protection of the Government of Pakistan.  Even if, as he says, the military authorities in Pakistan support the Taliban, this does not mean that the Government of Pakistan encourages extortion supposedly to support the Taliban cause or that it is powerless to protect its citizens against such extortion.  There is certainly nothing in the evidence before me to suggest that the Government of Pakistan encourages the sale of heroin or that it would be powerless to protect the Applicant against a drug lord.  Furthermore, if the Applicant was approached, as he says, at his business, it seems curious that he considered that he had to flee Pakistan but that he was nevertheless able to transfer the business to his brother.

   I am unable to be satisfied on the evidence before me that the Applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Pakistan. It follows that he is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently the Applicant does not satisfy the criterion set out in subsection 36(2) of the Migration Act for the grant of a protection visa.

10. As indicated the applicant commenced these proceedings on 6 May 2003.  In addition to the grounds of review in the draft order nisi the applicant also appears to rely on other grounds contained in written submissions filed on 8 December 2004.  I have considered all the issues raised by the applicant on the material before me. 

11. The first ground in the draft order nisi is that the Tribunal acted without or in excess of jurisdiction.  The particulars are that Australia is obliged to provide protection to people with a well-founded fear of persecution, that the applicant submits that he is from Pakistan and was subject to persecution on the grounds of religion and is a member of a social group and that he received a number of threats against his life and sincerely feared for his safety and that of his family if he was to return to Pakistan. 

12. The draft order nisi also seeks, to the extent that it is necessary, an extension of time within which to commence proceedings.  It is not necessary to determine the issue of an extension of time as it is clear on the material before the Court that nothing in the draft order nisi is capable of constituting even an arguable ground of review.  The so-called grounds of review are no more than assertions of fact about what the applicant alleges his circumstances were in Pakistan.  Insofar as the applicant seeks merits review, merits review is not available in this Court.  The general contention that the Tribunal acted without or in excess of jurisdiction does not establish jurisdictional error on the particulars provided. 

13. I do note however that while the written submissions for the respondent contended that the applicant had not put forward any evidence sufficient to justify any extension of time, in his affidavit of 6 May 2003 he provided an explanation consisting of the fact that he was not told about the decision of the Tribunal by his migration agent and then that he applied to the Minister to make a further protection visa application and that his agent did not put all the evidence in front of the Minister.  Indeed the material before the Court in the bundle of relevant documents includes correspondence between the applicant’s migration agent and the Minister in which the applicant sought first that the Minister exercise his discretion under s.417 of the Act to substitute a more favourable decision and secondly, a permission to lodge a second application for a protection visa. 

14. In written submissions the applicant raised a number of other issues.  First it was contended that:

    The RRT member, by unreasonably rejecting all parts of my claim to be a refugee under the Refugee Convention, unjustly asserting I did fabricate every aspect of my story and my witnesses had colluded with me solely to embarrass my claims, has unjustly excluded from consideration the totality of my account.  At the very least the way in which the hearing was conducted gave rise to a reasonable apprehension of bias.

15. This ground bears no relationship whatsoever to the circumstances of the applicant’s case, as he did not in fact attend a Tribunal hearing.  Nor did the Tribunal assert that the applicant fabricated aspects of his story.  Rather, in circumstances where the applicant had not accepted the opportunity to attend a Tribunal hearing, the Tribunal was unable to be satisfied on the material before it that he met the central criterion for the grant of a protection visa being that he had a well-founded fear of persecution for a Convention reason.  (See Minister for Immigration & Multicultural & Indigenous AffairsvVSAF of 2003 [2005] FCAFC 73, SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215 and NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208). There is nothing in the material before the Court to support a contention of apprehended bias in the manner considered by the High Court in Re Refugee Review Tribunal;Ex parte H [2001] HCA 28.

16. Insofar as the applicant takes issue under this ground with the Tribunal’s view of country information, this may be seen as addressing the fact that one of the issues in relation to which the Tribunal stated that there were many questions, was the question of why the applicant considered that he could not obtain the protection of the government of Pakistan.  In raising this issue the Tribunal did refer to the absence of anything in the evidence before it to suggest that the government of Pakistan encouraged the sale of heroin or that it would be powerless to protect the applicant against a drug lord.  However nothing in the Tribunal’s reference to the absence of such material in connection with its lack of satisfaction about the applicant’s claims establishes either apprehended bias or any other jurisdictional error. 

17. Other aspects of the applicant’s written submissions take issue with what is suggested to be a finding by the Tribunal that it refused his application on the basis that he could find protection from the government of Pakistan. This was not however the basis for the Tribunal decision as set out above. The Tribunal has a statutory duty under s.65 of the Migration Act 1958 (Cth) to refuse the visa unless it is able to be positively satisfied that the applicant met the central criterion of a well-founded fear of persecution for a Convention reason. On the limited information provided it was not so able to be satisfied in the circumstances of this case.

18. The applicant also took issue with the Tribunal stating that he had said that the military authorities in Pakistan support the Taliban.  It was suggested that if this were so, it must have been a fabrication by his migration agent.  It appears that the Tribunal was referring to the claim in the applicant’s application for a protection visa in response to a question about state protection: “the military authorities of my country cannot protect me because they subscribed to the Taliban cause”.  The applicant’s claim that this was a fabrication by his agent does not establish error, let alone jurisdictional error, on the part of the Tribunal.  There is nothing in the Tribunal reasons for decision to suggest that the Tribunal did not understand or deal with the applicant’s claims as presented in the protection visa application. 

19. Further the applicant’s suggestion that the Tribunal member did not know about the political situation in Pakistan and did not look at country reports and other human rights reports and made a decision violating the law does not establish jurisdictional error.  The fact that the Tribunal did not mention any independent country reports or material considered by the primary decision-maker does not make the decision “unreasonable” or establish jurisdictional error.  In the circumstances of the case it was the absence of clarification of the questions the Tribunal had in relation to the applicant’s claims which led to its lack of satisfaction. 

20. In paragraph 5 of the written submission the applicant refers to a “second hearing on 14 July 2003”.  The applicant did not have a first hearing, let alone a second Tribunal hearing. 

21. The written submissions also refer to the findings of the Senate Legal and Constitutional Committee Report in relation to an examination of Australia’s refugee and humanitarian determination processes for the year 2000, apparently in support of a contention that the decision was made with “a lack of justice”.  Such references do not assist the Court to determine whether the Tribunal fell into jurisdictional error. 

22. The remaining ground in the written submissions was the only ground referred to by the applicant in oral submissions.  It is his contention that he did not receive the letter of 8 September 2000 inviting him to the Tribunal hearing.  In his written submissions he claimed that he had changed his address (a Matraville address) to a Blacktown address and had been living there for the last four years and that maybe the Tribunal sent a letter to the old address.  He claimed that he had notified his change of address to the Department and that this was a technical mistake of the Department or the Tribunal that the letter was sent to the old address and not the new address where he was residing at the time.  I note first that the correspondence in issue is a letter of 8 September 2000 which was sent prior to four years ago, but in any event in his affidavit of 6 May 2003 the applicant stated:

    I got a letter from the Refugee Review Tribunal notifying the date of hearing.  I talked to my migration agent and he advised me not to appear on hearing.  He further told me that he will go on hearing and will provide additional documents which I provided him.

23. Counsel for the first respondent told the Court that he did not have a copy of the applicant’s written submissions of 8 December 2004 and had not been aware prior to the hearing that the applicant raised an issue about notification of the invitation to the Tribunal hearing.  While the issue was addressed in oral submissions, in addition I made orders that the solicitor for the respondent file and serve a note on the relevant legislation applicable in this instance and any further written submissions and for the applicant to file and serve any written submissions in reply.  After the hearing the respondent filed written submissions.  No submissions in reply were filed by the applicant. 

24. Relevantly the application for review to the Refugee Review Tribunal was filed on 20 November 1998.  The Tribunal issued the invitation to a hearing on 8 September 2000 and handed down its decision on

    
    

    14 December 2000. 

25. Significant amendments were made to the Migration Act by the Migration Legislation Amendment Act (No 1) 1998 (No 113 of 1998). These amendments repealed the pre-existing ss.424 and 425 and replaced them (relevantly) with new ss.424, 424A, 424B, 424C, 425, 425A and also inserted 426A and 441A.  Importantly the application of these amendments was prescribed by Schedule 3 Part 2 Item 20 of the Amendment Act which provided:

    20.    Existing applications for review

    (1) The amendments made by this Schedule apply to an application made under section 412 of the Migration Act 1958 for review of an RRT-reviewable decision if:

    (a)     the application was made before the commencement of this Schedule; and

    (b)     the review was not completed under section 414 of that Act before that commencement.

26. Schedule 3 of the amending Act commenced on a date fixed by proclamation (see s.2(2)) which in this case was 1 June 1999.  Accordingly by virtue of Schedule 3 Part 2 Item 20(1) of the amending Act the amendments made by the amending Act applied to the applicant’s application despite the fact that the application to the Tribunal was made before the commencement of the Schedule because the review had not been completed before the commencement of the Act.  The amendments came into force before the invitation to a hearing was sent on 8 September 2000. 

1. Relevantly this means that s.441A as introduced by the 1998 Act applied to the invitation to hearing sent to the applicant’s home address at Matraville. That provision was (relevantly) as follows at the relevant time (there were subsequent amendments operative on 10 August 2001):

   441A Methods of dispatch of certain documents

   (1)     A document specified in subsection (3) is taken to be duly given to an applicant for review if:

   (a)     the document is sent (physically, electronically or otherwise) to:

   (i)      the last address for service provided by the applicant in connection with his or her application for review; or

   (ii)     the last residential address provided by the applicant in connection with his or her application for review; and

   (b)     the Tribunal has a receipt or other evidence indicating the date of dispatch.

   ……

   (3)     The documents specified for the purposes of subsections (1) and (2) are:

   (a)     an invitation to an applicant under section 424 (other than an invitation to an applicant who is in immigration detention); and

   (b)     an invitation under section 424A (other than a notice to an applicant who is in immigration detention); and

   (c) a notice under section 425A (other than a notice to an applicant who is in immigration detention); and

   (d)     a notice under section 430A; and

   (e) a statement given under subsection 430B(6).

   (4)     It is sufficient compliance with the requirement to give a document referred to in subsection (3) if a facsimile, or a certified copy, of the document is so given.

   (5)     A document posted in accordance with paragraph (1)(a) must bear correct pre-paid postage and, if the document is posted to an overseas address, the postage must be at the full airmail rate.

2. In this case there is evidence before the Court of the date of dispatch of the invitation to hearing sent to the applicant’s home address consisting of the postmark on the envelope returned to the Tribunal (Exhibit A) which shows that it was dispatched on 11 September 2000. The envelope is also marked postage paid (see s.441A(5)). Hence the invitation was by virtue of s.441A(1) as it stood at the relevant time taken to have been “duly given to” the applicant. Accordingly s.426A of the Act applied and empowered the Tribunal to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

3. The Tribunal met its obligation to invite the applicant to a hearing under s.425. The notice of invitation met the requirements of s.425A. The applicant was invited but did not appear at the scheduled hearing.

4. No failure to comply with any of the provisions of the Migration Act has been established. Moreover, the Tribunal reasons for decision record that the Tribunal contacted the applicant’s migration agent (to whom it had also sent a copy of the invitation). He informed it that he had no knowledge of the applicant’s whereabouts. The Tribunal took all reasonable steps to notify the applicant of the hearing In those circumstances no lack of procedural fairness is apparent on the material before the Court. I note in that respect that insofar as the applicant’s contentions suggested that the migration agent either did not inform him of the hearing or advised him not to attend, such matters do not establish a denial of procedural fairness on the part of the Tribunal (see Al Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 at 895 and B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 per Dowsett J at [23] – [25] and B41 of 2003 v Refugee Review Tribunal [2005] FCAFC 4 and also S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 at [25] – [26]).

5. As no jurisdictional error has been established the application must be dismissed. 

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

Associate: 

Date:  8 September 2006