SZAXF v Minister for Immigration

[2003] FMCA 374

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAXF v MINISTER FOR IMMIGRATION [2003] FMCA 374

MIGRATION – Review of decision of RRT – where application is made five years after the decision – where applicant claims not to have received notice of hearing – where Tribunal proceeded in absence of applicant – where applicant unable to prove assertions concerning Tribunals conduct – where application for adjournment refused – where applicant seeks relief under repealed sections of the Migration Act 1958.

Migration Act 1958 (Cth), ss.418, 421, 425, 483A
Judiciary Act 1903 (Cth), s.39B

Budiyal v Minister for Immigration (1998) 82 FCR 166
Minister for Immigration v Capitly [1999] FCA 193
SDAC v Minister for Immigration [2002] FCA 1428
Re Minister for Immigration; Ex parte ‘A’ (2001) 185 ALR 489
McPhee v S.Bennet Ltd (1935) 52 WN (NSW) 8
Kamal v Minister for Immigration [2002] FCA 818
Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407
Muin v Refugee Review Tribunal [2002] HCA 30

Applicant: SZAXF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 1224 of 2003

Delivered on: 5 September 2003

Delivered at: Sydney

Hearing date: 27 August 2003

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Mr I Archibald

Solicitors for the Applicant: Michaela Byers

Counsel for the Respondent: Mr J Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1224 of 2003

SZAXF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter is a citizen of the Peoples Republic of China. He arrived in Australia on 1 May 1995. On 6 September 1995 he lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth) (“the Migration Act”). On 29 August 1996 a delegate of the Minister refused to grant him a protection visa and on 1 October 1996 the applicant sought review of that decision.

2. In his application for review found between [CB 53 and 55] received by the Tribunal on 1 October 1996, the applicant gives his address as 8/16 McBurney Road, Cabramatta 2166. He provided no telephone number. He indicated that he did not have an adviser. On 24 October 1997 the Tribunal wrote to the applicant advising him that having looked at all the papers relating to his application it was unable to make a favourable decision on this information alone. The Tribunal offered the applicant an opportunity to attend before it at a hearing that was scheduled for 18 November 1997 at 1pm. That letter was sent to the applicant at the address in the document previously referred to. The letter was contained in an envelope which was sent to the applicant by pre-paid registered post. A copy of a document purporting to be that envelope has been admitted as Exhibit 1. The document does not show the date of posting but it has some holograph indications on it as follows: first, “27.10”, second “4.11” and third “10.11”. I take this to refer to those little postcards that are put through one’s letter box to advise one that a registered post item is waiting for the recipient at the post office. The envelope also has on it the notation “return unclaimed”, a stamp “return to sender” and a “received stamp” dated 25 November 1997 from the Refugee Review Tribunal.

3. The decision of the Tribunal was made on 26 November 1997 ie one day after the envelope was returned. The Tribunal indicated in its findings and reasons between [CB 60 and 71]:

   “The applicant was invited to attend a hearing with the Tribunal but he did not respond to the correspondence sent to him by the RRT. The Tribunal proceeded to make a decision on the available information.”

4. The applicant’s well-founded fear of persecution for the Convention reason of political opinion was alleged in the papers to have arisen out of his activities as a part owner of a book store with his brother in the town of Harbin between 1989 and 1995. The applicant claimed to have been active in the 1989 mass protest movement against the government which led to the Tienanmen Square massacre. The applicant did not suggest that he was present in Beijing at the time. He did allege that the authorities had confiscated many books from his book store and that he was “tortured by the public security bureau many times.” He claimed that in relation to his main job in a government sponsored work unit he was threatened with dismissal after the Tienanmen Square incident but that the work unit subsequently decided to allow him to maintain his position at a quarter of his former salary.

5. The applicant argued that he had absconded from the control of the Chinese authorities whilst on a visit to Australia and that this would attract adverse attention from the authorities in China upon his return.

6. The Tribunal considered the case put by the applicant and compared it with the considerable body of country information which it had and which it set out between [CB 63 and 68]. The effect of this information was to indicate that whilst the Chinese authorities did take a harsh view of high profile dissidents there was not really much action taken against low level activists. The Tribunal also considered country information which indicated that whilst it was possible to pay bribes to obtain exit from China this would be in relation moving one’s application up the list rather than securing an exit visa for a person who is otherwise not entitled to one. The information indicated that the authorities would not take a bribe to assist a person who was a high profile dissident as the consequences would be very serious.

7. The Tribunal expressed its views as to the applicant’s credibility at [CB 69] in the following manner:

   “In the present matter and after considering the information presented by the applicant through the processing of his application, the Tribunal has reached a conclusion that he did not present a truthful account of the circumstances in China. The applicant made vague and general statements regarding his political activities in China and associated difficulties he suffered with the authorities between 1989 and 1995. The information provided by the applicant regarding that period was too vague to determine whether his difficulties were due to his activities in 1989 or for some other reason…the Tribunal has decided that the claims made by the applicant regarding the harassment he suffered by the PRC authorities from 1989 to 1995, due to his support of the 1989 protest movement, lacks credibility and it will be disregarded by the Tribunal. The Tribunal has further decided that the applicant’s claim that he was of interest and concern to the PRC authorities at the time when he departed the country also lacks credibility and this claim will also be disregarded by the Tribunal.”

8. The Tribunal concluded that although the information it had indicated that the PRC government was currently targeting for harassment and possible persecution the leaders and organisers of protest activities, those with some degree of influence and recognition and, most importantly, those who persist in expressing their dissenting views once they return to China, the applicant was not amongst this class of people. It therefore came to the conclusion that the applicant did not have a well-founded fear of persecution for a convention reason on this ground or on the ground suggested that he would have problems because of his absconding from the tourist party with whom he arrived in Australia.

9. A letter was sent to the applicant advising him of this decision. So far as this court is aware until 1 July 2003 the rest was silence. On that day the applicant, then in immigration detention filed an application for review. The grounds of the application were:

   “1. An order of certiorari against the Respondent quashing the Decision of the Refugee Review Tribunal made of 27 November 1997 and handed down on 27 November 1997.

   2. An order of mandamus requiring the Respondent to consider and determine according to law the refusal by the delegate of the Respondent to grant to the Applicant a protection visa, application for which was lodged by the Applicant on 6 September 1995.

   3. An order of prohibition against the Respondent from acting upon the Decision of the Refugee Review Tribunal made on 27 November 1997 and handed down on 27 November 1997.”

10. These grounds were amended by an amended application filed in court on 27 August 2003. The new grounds of application were relevantly a new ground one, a new ground two and a new ground five. These are set out below:

    “1. That an order for certiorari be directed to the Refugee Review Tribunal (“the Tribunal”) removing into this Court to be quashed, the decision of the Tribunal made on 26 November 1997 to affirm the decision of a Delegate of the Respondent not to grant the applicant a protection visa (“the Decision”).

    2. That an order for mandamus be issued out of this Court directed to the Respondent directing him to appoint a member of the Tribunal, other than the member who heard the original application, to re-hear and re-determine the applicant’s application for a protection visa according to law.

    5. An order that the respondent pay the costs of the applicant.”

11. When the matter came before me for hearing the applicant was represented by counsel. He pointed out that the procedures regarding the provision to an applicant of a hearing were in 1995 governed by s.425 of the Migration Act which is in the following form:

Tribunal must invite applicant to appear

(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2) Subsection (1) does not apply if:

(a)the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

1. The applicant argues that the Tribunal knew that the applicant had not received the letter notifying him of the hearing. He says this because he states that the envelope indicating the return of the letter to the Tribunal arrived at the Tribunal’s offices on the day prior to the decision being made.

2. Under s.421 of the Migration Act:

   Constitution of Refugee Review Tribunal for exercise of powers

   (1) For the purpose of a particular review, the Tribunal is to be constituted, in accordance with a direction under subsection (2), by a single member.

   (2) The Principal Member may give a written direction about who is to constitute the Tribunal for the purpose of a particular review.

   The Tribunal for the purpose of this case was Mr Jacovides. There is no evidence provided to me which would enable me to say that the receipt of a letter in the general office of the RRT would have come to Mr Jacovides attention and therefore the attention of “the Tribunal” within a period of 24 hours. I am not satisfied that the Tribunal in this case was aware that the letter had not been delivered.

3. In any event there were a number of reasons why the letter might not have been delivered which are not consistent with a lack of fault on the part of the applicant. The applicant may have left his address and not informed the Tribunal. The applicant may have deliberately decided that he did not want to receive letters from the Tribunal. There is no suggestion by the applicant that he was ill at the time and indeed there is no explanation whatsoever given by the applicant as to why the letter was  not received.

4. In Budiyal v Minister for Immigration (1998) 82 FCR 166 the court held that:

   “The content of the procedural requirement that the applicant must be given ‘an opportunity to appear before it to give evidence’ is an objective one which must ultimately be decided by the court…on a proper construction the provision there must be an implication that the opportunity provided is a reasonable one.”

   This dicta was approved by the Full Bench of the Federal Court in Minister for Immigration v Capitly [1999] FCA 193.

5. It is appropriate to interpose here that during the course of the hearing the applicant sought leave to adjourn the matter so that he could put on evidence. The evidentiary problems with his case had been pointed out to him. I considered the application and in a judgment, a copy of which is annexed hereto, I declined it. There was therefore no evidence before me from the applicant concerning why the Tribunal had not given him a reasonable opportunity to appear and I am satisfied in the circumstances the opportunity offered was reasonable. If the applicant had left a telephone number at which he could be contacted then I would have expected the Tribunal to contact him on that. He did not. If the applicant had given an address of an agent to whom correspondence could also be sent I would have expected some communication with the agent but he did not. One wonders what else the Tribunal could have reasonably been expected to have done.

6. I believe this disposes of ground 1a of the amended application. I think it also disposes of 1b because s.425(1)(b) allows the Tribunal to obtain such other evidence as it considers necessary. If the Tribunal has given the applicant a reasonable opportunity to appear and the applicant has not appeared then the Tribunal is entitled to take into account any additional evidence which it has and which it may well have put to the applicant if the applicant had attended. That was the purpose of the summons to appear. The summons was predicated upon the Tribunal not being satisfied on the papers before it that the applicant was a refugee and entitled to a visa within the context of the Migration Act.

   
   

   I have not been able to find any authority which suggests that where the Tribunal has complied with its statutory obligations under s.425 and an applicant has not attended it was under some further obligation to send out to him particulars of the further evidence it proposed to take into account and which had not been before the delegate. One only has to look at the circumstances of this case to see the inutility of such a suggestion. Whatever the reasons might have been why the applicant did not pick up the letter which came to him from the Tribunal offering him the opportunity to be heard there is nothing to suggest that a letter enclosing the additional information would not meet with the same fate. Ground 1c is a subset of 1b.

7. Ground 1d is a Muin v Refugee Review Tribunal [2003] HCA 30 ground. The difficulty the applicant has in connection with this is that he has filed no evidence upon which the allegation can be supported. I simply do not know whether the so called “Part B” documents were before the Tribunal or not. Ground 1e cannot be made out in the absence of evidence.

8. Ground 2 seeks relief for failure to comply with s.418(3) of the Migration Act as it was in 1997. The applicant has a problem with this. This case has been brought in the Federal Magistrates Court. The Federal Magistrates Court only had jurisdiction in migration matters by virtue of amendments to the Migration Act which came into effect in October 2001. The jurisdiction of the Federal Magistrates Court is contained in s.483A of the Act. It has jurisdiction in relation to this matter because the application was filed after October 2001 but in the same piece of legislation which granted the court jurisdiction the whole of Part 8 of the Act including s.476(1)(a) grounding relief of the type here sought was repealed. This had effect for any cases filed after

   
   

   2 October 2001. The applicant can therefore not rely on the old statutory provisions which allowed review where there was a failure to comply with an obligation under the Act. He must rely exclusively on the discretionary power granted by s.39B of the Judiciary Act1903 (Cth). But if the applicant were to establish that the Tribunal did not provide the applicant with procedural fairness because of the facts alleged he would have to prove them. He has not done so. He would also have to indicate what steps he might have taken had he known about the failure: SDAC v Minister for Immigration [2002] FCA 1428 and Re Minister for Immigration; Ex parte ‘A’ (2001) 185 ALR 489 at [54].

9. Grounds 3 and 4 of the application are procedural fairness grounds which this court can consider. It is to be recalled that the applicant did attend before a delegate of the Minister and gave a statement which is found at [CB 25 to 28]. The delegate’s decision is found between [CB 36 and 45]. The applicant was given a copy of this document. The document contains the information which was critical to the decision of the delegate. It deals with both the argument that the applicant had a well-founded fear of persecution because of his activities as a pro-democracy agitator and his concerns about absconding from the organised Australian trip. The matters which the Tribunal took into account in coming to its decision were these very matters. The Tribunal relied on what could be considered better quality information. But it was information of the same type as was discussed with the applicant previously. In these circumstances there is no denial of procedural fairness.

10. Ground 4 appears to have required the Tribunal to have done something which was impossible. Namely, to put to the applicant during a hearing which he did not attend country information that the Tribunal proposed to rely on. I am not satisfied that this ground can be upheld.

11. The final ground concerns the credibility of the applicant and suggests that it was not based on findings or inferences of fact unsupported by logical grounds.

12. In his written submission counsel for the applicant says the reason for this (the alleged error of law) is that the finding (of credit) is not based on evidence.

    “It is based on the Tribunal’s characterisation of the applicant’s evidence, and essentially what was not in evidence…there was no evidence itself on which the credibility finding could be based.”

13. I do not accept this. The Tribunal had before it the submissions of the applicant to the delegate including letters written by the applicant to the delegate. The Tribunal was perfectly entitled to take these into account as evidence and consider them for the purposes of making credibility findings. Findings of credit are matters for the Tribunal. In McPhee v S.Bennet Ltd (1935) 52 WN (NSW) 8 Jordan CJ said at 9:

    “If a Tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision…is conclusive.”

    (See also Kamal v Minister for Immigration [2002] FCA 818 at [36] and Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]).

14. I do not believe that the applicant has established any grounds for judicial review under s.39B of the Judiciary Act. I am not therefore required to consider whether or not I would have granted him the relief sought in the light of a five year delay which was totally unexplained.

15. I dismiss the application. I order the applicant to pay the respondent’s costs which I assess in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: 

EXTEMPORE JUDGMENT (No.1)

1. This matter came on for hearing before me at approximately 2.20 this afternoon.  It concerns an application by a person currently in immigration detention for review in August 2003 of a decision of the Refugee Review Tribunal made on 26 November 1997. 

2. At the commencement of the proceedings the applicant, who is represented by counsel and solicitors, sought to file in Court an amended application.  The filing of the amendment in Court today was resisted by the respondent but over the respondent's objections I allowed it on the basis that it seemed to me that the allegations contained therein were matters of law with which a counsel as experienced as Mr Smith is in these matters could probably deal.

1. However, I noted and made comment to the counsel for the applicant that in paragraph 1 of the amended application the following words are used:

   “There was a lack of procedural fairness in the making of the decision of the Tribunal in that the Tribunal knowing as it did that the applicant has not received notice of the opportunity to appear before the Tribunal for the purposes of giving evidence to the Tribunal did not postpone the opportunity and the making of its decision and take further reasonable steps to ensure that the applicant did receive notice of...”

2. I suggested to counsel that this appeared to be making an evidentiary assertion upon which there was no corroborative material. 

3. As the case proceeded before me other matters of this type arose.  In particular there arose an assertion by the applicant that certain Part B documents, as they are known, which were before the delegate of the Minister, were not before the Tribunal.  I'm not entirely clear from what fell from Mr Archibald that he was totally unable to prove this or whether he had some proof about it which he was not going to give me until a later stage in the proceedings.

4. But more seriously, later there came an allegation concerning the tape recording of the applicant's interview with the delegate.  I noted that at [CB 32] paragraph 3, the applicant had made a complaint to the Tribunal about the quality of the interpretation of his appearance before the Tribunal.  Now Mr Archibald was seeking to tender in evidence some documents which went, he thought, to establishing that the tape was not before the Tribunal.  Those documents did no such thing.  They merely establish that the tape was not with the Tribunal today, or when the letter was written. 

5. It became obvious at this point that there were a number of lucanae in the applicant's evidentiary base for his submissions.  Mr Archibald wisely asked me for an adjournment so that he could have an opportunity to put the case into the status which it should have been at 2.15 this afternoon.

6. In considering whether or not to grant an adjournment, I have to have regard to a number of matters; firstly, I note that this case was originally set down before my colleague, Federal Magistrate Barnes on 2 February 2004 but because the applicant was in detention special efforts were made so that on 23 July 2003 the solicitor for the applicant was informed the matter would be set down today for hearing.

7. When the matter came before the Registrar for directions certain orders were made, those included requiring the applicant to file and serve any evidence and any amended application five working days before the hearing date.  That order was not complied with.  I note that the factual matrix which surrounds the whole of this application is that the applicant was sent by registered mail, a letter informing him of a hearing date before the Tribunal in 1997, that letter was returned.  The fact that the letter was returned is not evidence that the applicant did not know that it had arrived, it is evidence of nothing other than it was returned. 

8. For five years thereafter the applicant remained in Australia.  I do not know his circumstances and it would be wrong of me to make assumptions as to how he managed to avoid the attention of the Federal Police or the Department of Immigration. But the fact is that now he has been found and has been placed in Immigration detention, he raised a request to review a five year old decision.

9. I am, of course, conscious of the very great importance of these matters to persons seeking asylum.  It should never be forgotten that the purpose of persons seeking asylum is to attempt, by use of the Refugee Convention to avoid persecution in his or her own country, to which place he or she may well be sent if he or she is unsuccessful in his or her application.  I am sensible of that caution on anything which I may decide.

10. However, in this particular case I do not believe it is appropriate to grant the applicant the adjournment he seeks.  The applicant is represented.  He has had a lengthy period of time in which to prepare his case, even if one considers that the urgency about it only occurred at the end of July when his solicitors were advised of the new hearing date.  The applicant obviously has access to funds and it would not be unreasonable to assume that if appropriate efforts had been made, the evidentiary basis for the allegations and submissions which are being made could have been provided.  If it could not have been provided because of the failure of the respondent, then an application could have been made for orders and an adjournment and it would have been granted.

11. In all the circumstances I believe it is in the best interests of justice, noting as I do that this court is committed to migration cases throughout and into the end of October 2004, that this case should proceed now.

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

Associate: 

Date: 

EXTEMPORE JUDGMENT (No.2)

1. Mr Archibald has sought to tender an affidavit from his client.  The purpose of the affidavit is to establish the requirement made clear in those cases which followed Muin v Refugee Review Tribunal [2002] HCA 30, that it would be necessary in any case in which an allegation was made of the type made in Muin to prove those matters which were in that latter case the subject of agreed facts.

2. One of the matters which was the subject of agreed facts in Muin and sought to be proved here was that the Tribunal did not have access to the Part B documents which were before the delegate.  The second is that if the applicant had known about this he would have prepared his case differently and brought other information to the attention of the Refugee Review Tribunal.

3. Unfortunately Mr Archibald has been unable to prove the first point.  He sought to tender two letters which are reasonably contemporaneous.  Those two letters which come from the Department seem to indicate that at the present time, ie in 2003, the Tribunal does not have the documents.  That does not prove the Tribunal did not have the documents on
   26 November 1997, five years ago.

4. It therefore seems to me that Mr Archibald has not surmounted the first hurdle and in those circumstances placing on the record an affidavit which only deals with something that would occur if that hurdle had been surmounted is of little utility.  I therefore propose not to admit the affidavit.

5. Paragraph 4 of the affidavit is in the following form:

   "The Refugee Review Tribunal did not disclose any adverse information to me prior to the hearing."

   Mr Smith has appropriately conceded the truth of this statement.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 
Date: