SZAUL v Minister for Immigration

[2004] FMCA 347

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAUL v MINISTER FOR IMMIGRATION [2004] FMCA 347

MIGRATION – Application for review of Refugee Review Tribunal decision – applicant did not provide contact address to Tribunal – invitation to hearing sent to address provided to Department but returned to sender – whether failure to comply with Migration Act 1958 – whether lack of procedural fairness.

Migration Act 1958 (Cth)

Minister for Immigration & Multicultural Affairs v Mohammad [2000] FCA 1275
SZAXF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1464
Minister for Immigration & Multicultural Affairs v Singh (2000) 171 ALR 53)
NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134
Minister for Immigration & Multicultural Affairsv Capitly (1999) 55 ALD 365
Haddara v Minister for Immigration & Multicultural Affairs (1999) 166 ALR 401
Uddin v Minister for Immigration & Multicultural Affairs (1999) 165 ALR 243
NAHV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102

Applicant: SZAUL

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1117 of 2003

Delivered on: 16 July 2004

Delivered at: Sydney

Hearing date: 19 May 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr R Beech-Jones

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the application is dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1117 of 2003

SZAUL

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 16 May 2000 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.

2. The applicant is a citizen of the Peoples Republic of China who was born in 1949 and arrived in Australia on 28 February 1998.  On 2 August 1999 he lodged an application for a protection visa.  In the application the applicant stated that he did not receive help completing the form and asked that correspondence be sent to the postal address provided.  This address, in Homebush West, was the only address provided to the Tribunal.  No migration agent was specified.  No interpreter’s declaration was completed on the application form as is required if an interpreter is used in the preparation of the application.  The only material supplied by the applicant to the delegate in support of his application was a one-page statement as follows:

   ‘Why do I not want to go back China?  The reasons as follows: ‘Fa-Lun Gong’ is one of religion in China, it is unofficial religious party that has its own leader, organization, doctrine and own philosophy.  

   ‘Fa-Lun Gong’ followers meet in front of ‘Zhong-Nan Hai’ petition after the Chinese Government give orders ‘the Chinese Communist Party members, soldiers and government officials a forbidden by the government to take part in any activities organised by ‘Fa-Lun Gong’.  The Chinese Government appoint that this petition is against Chinese Government activities, it is illegal group.  Chinese Government has been secretly investigation the organisation of ‘Fa-Lun Gong’, some leaders had already been secretly arrested.’ 

   The application was refused on 23 September 1999. 

3. On 27 October 1999 the Refugee Review Tribunal received an application for review from the applicant.  It is apparent from the copy of the application form provided to the Court and an extract from that document tendered as an exhibit in these proceedings, that when the application to the Tribunal was lodged it did not contain any details for the applicant’s home address, address for service, telephone numbers or any method of contacting the applicant.  It appears that such details were obtained by the Tribunal from the Department.  The address provided by the applicant to the Department was used by the Tribunal to contact the applicant.  The application to the Tribunal stated that the applicant did not have an adviser (for example a lawyer or a migration agent) acting for him in relation to the application.  No details of any adviser are included.  The applicant stated in the application form that he did not agree with the departmental decision and strongly thought that the Chinese government was continuously investigating the organisation and some of the Falun Gong leaders were still secretly arrested, that a Falun Data was still strong in China and that he could not return.  The application was signed in the name of the applicant.  an interpreter’s declaration was not completed. 

4. On 27 October 1999 the Tribunal wrote to the applicant at the Homebush West address he had provided to the Department advising that his application had been received, that if the Tribunal could not make a decision in his favour he would be asked if he wanted to come to a hearing and that if he had any new documents or written evidence he should send them to the Tribunal as early as possible.  The letter also advised that the applicant should advise the Tribunal of any change in his circumstances, that it was very important to tell the Tribunal if he changed his contact details and that any change of address would be acknowledged by the Tribunal.  The letter pointed out that if the Tribunal was unable to contact the applicant or if he did not respond to their letters he may lose the opportunity to appear before the Tribunal and give evidence on his case.  There is nothing in the material before the Court to suggest that such letter was returned to the Tribunal unreceived. 

5. On 29 March 2000 the Tribunal again wrote to the applicant at the same address advising that it was not prepared to make a favourable decision on the information before it and inviting him to a hearing on 26 April 2000.  This letter was sent by registered post.  It was returned to sender as unclaimed on 2 May 2000. 

6. On 3 May 2000 the Tribunal again wrote to the applicant at the Homebush West address and advised that the Tribunal had made its decision and that it would be handed down on 16 May 2000. It appears that this letter was also returned to sender on 26 May 2000. Meanwhile on 16 May 2000 the Tribunal wrote to the applicant enclosing a copy of its decision and reasons and advising the applicant of his review rights. There is nothing in the material before me to suggest that this letter was returned to sender. Indeed in an affidavit sworn on 28 October 2003 and filed in these proceedings the applicant indicated his awareness of the Tribunal decision in the statement that when his review application was refused by the Tribunal his agent advised him to make a section 417 application to the Minister (which was refused in June 2000).

7. The Tribunal decision was made on 28 April 2000 and handed down on 16 May 2000.  The Tribunal stated that it had sent an invitation to the hearing to the nominated address of the applicant and that there had been no response received.  In these circumstances it was satisfied that it had discharged its obligation to give the applicant the opportunity to give oral evidence before it and that the applicant had effectively declined the opportunity.  It determined the matter on the evidence before it as the applicant had not availed himself of the opportunity to attend a hearing.  No reference is made to the hearing invitation being returned to sender after the date of the decision and before it was handed down.  The Tribunal stated:

   The applicant has made only bare claims about his participation in the Falun Gong movement.  He has not provided sufficient material to satisfy the Tribunal about the nature of his role, whether he was indeed a practitioner or leader, whether he was involved in pro-democracy activities, what group he belonged to, what its relationship is to the local authorities, recent changes in the local region in which he claims to practice, and many other aspects of his broad claims.

   … The lack of detail in the evidence leads the Tribunal to a position where it is unable to establish the relevant facts.  Without further detail I am unable to establish that the applicant has fears of returning to his country, whether these, if they exist, are well founded, or whether they are for reason of any of the categories in the Convention definition. 

   I am therefore not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution within the meaning of the Convention.

8. In reaching this decision the Tribunal referred to some of the information it would require to be satisfied that the applicant had a well-founded fear of persecution for a Convention reason. 

9. The applicant filed an amended application in this Court on 31 October 2003.  It relies on the ground that:

   ‘The notice sent by the Tribunal to the applicant pursuant to the requirements of s425A Migration Act 1958 (C’th) dated 29 March 2000 inviting the applicant to a hearing to be conducted by the Tribunal into the applicant’s claim for refugee status was never received by the applicant with the result that he was not aware of the hearing conducted by the Tribunal and was not able to provide answers to the concerns which the Tribunal had with his application and so was denied procedural fairness’.

10. In the accompanying affidavit sworn on 28 October 2003 the applicant stated that when his protection visa was refused he applied for review to the Refugee Review Tribunal. When his review application was refused “my agent advised to do a s417 Ministerial Appeal to the Minister” and that when the Minister refused his application in June 2000 his agent advised that there was nothing else he could do. He claimed to be afraid to return to China and that his agent wrote to the Minister on two more occasions around December 2002 and April 2003. He was detained by the Department on 18 June 2003 and filed the application in this Court on 19 June 2003. An amended application and affidavit were filed on 31 October 2003.

11. The applicant filed an affidavit sworn 3 May 2004 with annexures including a written submission on 4 May 2004.  The applicant’s solicitor filed a notice of withdrawal of appearance on 6 May 2004.  Much of the affidavit of 3 May 2004 and accompanying material addresses the merits of the applicant’s claim to be a refugee.  It refers to his support from Falun Gong supporters in Australia, his participation in Falun Gong activities in Australia (evidenced by photographs, a list of activities and letters and statutory declarations in support of the applicant describing his activities in Australia and the situation of Falun Gong practitioners in China).  The applicant also provided a statutory declaration in which he set out his claims to be a Falun Gong practitioner and listed activities he had participated in Australia since May 2002, and a CD of a celebration of Falun Dafa Day in Australia.  In written submissions the applicant repeated and expanded upon his claims to be a Falun Gong practitioner and also stated “During the RRT application, I changed my address and I did not know that I should inform the Tribunal.  I think my agent would like inform me about the processing of my application;  I did not find the former agent after I lodged the RRT application until I am writing this letter to you today.  I did not get any chance to give more evidence for my application”.

12. The central complaint of the applicant in his amended application is that the Tribunal failed to afford him procedural fairness.  In effect he claims that the Tribunal should not have proceeded to make an adverse decision without affording him an opportunity to attend a hearing.  The difficulty with this submission is that the Tribunal did afford the applicant an opportunity to attend a hearing in the only way in which it could do so on the material before it.  The only address or method of contacting the applicant provided by him to either the Department or the Tribunal was the residential address at Homebush West set out in the protection visa application.  He did not provide details of any migration agent or adviser in either his protection visa or Tribunal application, nor did he provide any telephone number or even employer or interpreter contact details.  Clearly he did receive the Departmental decision as he filed an application for review to the Tribunal.  It is also apparent that he somehow became aware of the Tribunal decision of

    
    

    16 May 2004 as shortly thereafter (according to his affidavit of

    
    

    28 October 2003) he made an application to the Minister under s.417 of the Migration Act 1958 which was refused in June 2000.  He did not (and he does not deny this) provide any contact details in the Tribunal application.  The applicant claimed in oral submissions that his adviser completed the forms on his behalf.  There is no reference to any adviser in the forms which expressly state that he did not have an adviser.  The form appears to be signed by the applicant and there is no interpreter’s declaration.  Even if the applicant did have the assistance of some person (whether a registered migration agent or otherwise), there was no way for the Tribunal to communicate with the applicant through such unidentified person. 

13. The applicant stated in oral submissions that he had moved from his address but that he thought that any move would have been communicated to the Tribunal by his unidentified migration agent.  However there is nothing in the material before the Court to suggest that the Tribunal had any knowledge of a migration agent or other person assisting the applicant.  The Tribunal sent all letters and the Tribunal decision to the only address provided, that being the residential address of the applicant.  In the acknowledgment of the application sent on 27 October 1999 the Tribunal advised the applicant of the need to notify of any change of address and of the circumstances in which he may lose the opportunity to attend a hearing.  The applicant claimed that his migration agent failed to notify him of the Tribunal hearing.  The applicant’s complaint that he was not notified by a person assisting him of the Tribunal’s invitation to attend the hearing does not establish any error on the part of the Tribunal let alone a lack of procedural fairness by the Tribunal. 

14. It is relevant to consider the application relevant statutory context in determining whether there was a jurisdictional error (Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 176 at [25] – [26], [37], [69] and [76] – [78].

15. The Tribunal’s invitation to the applicant of 29 March 2000 was made pursuant to s.425 of the Migration Act 1958, which obliged the Tribunal to invite an applicant to appear before it to give evidence and present argument relating to the issues arising in relation to the decision under review subject to certain exceptions which are not relevant in present circumstances.  The notice was sent to the applicant by registered mail to the only address available to the Tribunal (that being the address contained on the protection visa application).  There is no material before me to suggest that the applicant advised the Tribunal of any change of address and indeed he did not claim that he did so. 

16. No issue is taken with the form of that letter and it is apparent that it complies in its form and contents with the obligations of the Tribunal to invite the applicant to appear before it and to give the applicant notice of the day, time and place of the hearing.  The notice also contained a statement of the effect of s.426A. There is no suggestion that the timing of the letter of 29 March 2000 raises any concerns about whether sufficient notice purported to be given by the letter.

17. Section 425A(2) provided at the relevant time that the notice must be given to the applicant by one of the methods specified in s.441A (there being no suggestion that the applicant was in immigration detention at the relevant time). Subsection 441A(1) relevantly provided that a document was taken to be duly given to an applicant for review if sent to the last address for service or the last residential address ‘provided by the applicant in connection with his or her application for review’. In NADK of 2002 v MIMIA [2002] FCAFC 184 it was held that where an invitation was sent by pre-paid post to the applicant at the address nominated by the applicant, the Tribunal had complied with s.441A and that the invitation had been served in accordance with s.425A notwithstanding that the applicant was not told of the hearing by his migration agent and did not receive the letter sent to his home address. In VNAA v MIMIA [2004] FCAFC 134 the Full Court of the Federal Court confirmed that the invitation under s.425 is to be extended in the manner set out in s425A. (In that case the Court found that by force of s.441C applicants were taken to have received the document containing an invitation to a hearing notwithstanding that they did not in fact become aware of the invitation). However s.441C, which takes a person to have received a document given in accordance with s.441A, was not in force at the time of the Tribunal invitation in this case.

18. The document was sent by prepaid post to the Homebush West residential address which the Tribunal had obtained from the Departmental file on 29 March 2000.  The applicant himself had not provided any address to the Tribunal either for service or as a residential address.  However he had provided his residential address to the Department in connection with his protection visa application.  Consistent with the approach taken by Burchett and Branson JJ in Minister for Immigration & Multicultural Affairs v Mohammad [2000] FCA 1275, in the context of Part 7 of the Migration Act 1958 (in which s.441A appears) the expression: “address provided in connection with the application for review” in s.441A should not be limited to an address provided by the applicant to the Tribunal if an applicant has not provided any address to the Tribunal but has provided an address to the Department (cf Regulation 4.39). In such circumstances it is appropriate to regard the address provided to the Department as provided in connection with the application for review and hence the document as duly given to the applicant in accordance with s.441A. If it were otherwise the Tribunal would have no way of giving a document to, or otherwise communicating with, an applicant who failed to provide an address directly to the Tribunal. On this basis there was no failure to comply with s.425 and the Tribunal was entitled to proceed to determine the application under s426A without taking any further action to allow or enable the applicant to appear before it. No issue is taken with the manner in which it did so (apart from the absence of a hearing). Its findings were open to it for the reasons it gave and no error is apparent in the reasons for decision.

19. However the applicant did not actually receive the letter containing the invitation to a hearing.  Section 441C was not in effect at the relevant time and the letter inviting the applicant to a hearing was returned to the Tribunal as unclaimed on 2 May 2000 as evidenced by the copy of the letter and the envelope marked return to sender.  This was after the date scheduled for the hearing.  Was there a lack of procedural fairness or other jurisdictional error in such circumstances? 

20. It cannot be said that the fact that the letter of 29 March 2000 was not in fact received by the applicant was due to any fault on the part of the Tribunal.  Moreover, while the letter was returned to the Tribunal office, there is no evidence before the Court to warrant deeming that the Tribunal member knew that the letter had been returned.  In this case I am not satisfied on the material before me that the Tribunal member had any knowledge that the letter had not reached the applicant (cf MIMA v Capitly (1999) 55 ALD 365 and Haddara v MIMA (1999) 166 ALR 401). Knowledge of return of the letter should not be imputed or inferred merely from the fact of the letter being returned to the Tribunal premises (see SZAXF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1464 at [18] per Stone J exercising the appellate jurisdiction of the Federal Court). A similar situation arose in SZAXF. An applicant failed to receive an invitation to appear. The letter of invitation to appear was returned to the Tribunal unclaimed the day before the Tribunal made its decision. Stone J held that she was not prepared to impute to the Tribunal member notice of failure of notification of his rights to the applicant from return of the letter unopened to the Tribunal premises. Her Honour nonetheless considered whether the Tribunal was in breach of its obligations under the Migration Act 1958 in making its decision in the way that it did. She expressed real doubts (at [26]) that, properly construed, the Migration Act as it was at the relevant time, required the Tribunal to refrain from making a decision if, for reasons beyond its control, it was unable to contact an applicant in order to notify him or her of the opportunity to attend a hearing afforded by s.425. I share these doubts. Whether or not the letter should be taken to have been ‘received by’ the applicant (see now repealed regulation 5.03, the discussion of that regulation and of relevant authorities in SZAXF at [22]-[26] and also Mohammed v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1275 in relation to the decision in Minister for Immigration & Multicultural Affairs v Singh (2000) 171 ALR 53), if it were the case that the Tribunal was in error in making a decision in the absence of some actual notification to or receipt by the applicant of the invitation to a hearing this cannot be characterised as a denial of procedural fairness. As Stone J said in SZAXF at [27]: “Inability to contact an applicant by sending a registered letter to the only address provided by the applicant cannot, in the absence of any knowledge that the letter has not reached the applicant, be a denial of procedural fairness.”

1. Moreover, I am satisfied that, as Stone J held in SZAXF in similar circumstances, if there was a technical failure by the Tribunal to comply with the provisions of the Migration Act, in particular s.425, referred to (or if knowledge that the letter was not actually received by the applicant should be attributed to the Tribunal in the absence of proof of actual knowledge: Uddin v MIMA (1999) 165 ALR 243 at [19]-[34] per Hely J), any such technical breach of the relevant provisions of the Migration Act 1958 would not amount to jurisdictional error. The Tribunal had no way of contacting the applicant other than through the address in the protection visa application. Even if the Tribunal knew that the letter was not received by the applicant it had no alternative way (whether by letter or otherwise) to advise the applicant of the opportunity afforded by s.425. On the applicant’s own evidence he had moved from the only address known to the Tribunal and had not notified it of the change of address. In such circumstances it cannot be concluded that breach of s.425 (if there were such a breach) in these circumstances should necessarily spell the invalidity of the Tribunal decision irrespective of the absence of any unfairness attributable to the Tribunal, (see NAHV v MIMIA [2003] FCAFC 102 at 22-24). I do not consider that the obligations of the Tribunal to provide procedural fairness to an applicant extend so far as to require it to send on more than one occasion the same notification or hearing invitation to the same address in circumstances where the initial hearing notification is returned to sender as unclaimed and where there are no other contact details provided by the applicant.

2. The applicant’s claim that he was represented or assisted by an unidentified agent who failed to advise him of his obligation to notify the Tribunal of any change of address or who was otherwise negligent is unsubstantiated.  The claim of representation is contrary to what is stated in his protection visa and review applications.  There is nothing to suggest that the Tribunal had any knowledge of the existence or identity of any migration agent or other person assisting or representing the applicant.  Even if the applicant could substantiate his claim to have had someone assisting him with his review application this would not establish any jurisdictional error on the part of the Tribunal or provide a basis for the Court to remit the application for review.  The Court has no discretion on humanitarian grounds – such concerns would have to be raised by the applicant with the Minister.  Nor does the applicant’s lack of English language ability or lack of legal knowledge establish any error on the part of the Tribunal. 

3. The claim that the Tribunal should somehow have contacted the applicant lacks substance as there was no method whatsoever for the Tribunal to contact him other than through the one address he had provided to the Department.  In oral submissions the applicant conceded he was at fault in not advising the Tribunal of his change of address.  He nonetheless argued that the Tribunal should have contacted him (by some unexplained means).  He submitted generally that the absence of a hearing meant that he was denied procedural fairness.  For the reasons given above I do not accept that this is so.  The obligation to accord procedural fairness was met in all the circumstances of this case.  As no jurisdictional error has been established it is not necessary to consider the submissions of the respondent that relief should be declined for reason of delay.  The application should be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  16 July 2004