SZBAZ v Minister for Immigration - [2004] FMCA 790

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBAZ v MINISTER FOR IMMIGRATION

[2004] FMCA 790

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal failed to take into account relevant considerations and took into account irrelevant considerations – whether Tribunal failed to give applicant prescribed notice of invitation to hearing.

Migration Act 1958

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244
Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 398
NBBU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 767
VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134
Minister for Immigration & Multicultural & Indigenous Affairs v Mohammad[2000] FCA 1275
SZBSY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 728
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 295
NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 325
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158

Applicant:

SZBAZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1465 of 2003

Delivered on:

24 November 2004

Delivered at:

Sydney

Hearing date:

7 July 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Mr M. Jones

Counsel for the Respondent:

Mr G. Johnson

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1465 of 2003

SZBAZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 10 September 2002 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.
The applicant, who is a citizen of Egypt, claimed to fear persecution because of his religion as a Coptic Christian. He claimed that he was targeted by Muslims in his village because of his religion and that the Egyptian government does not protect Christians, particularly Christians in small villages. The Tribunal accepted that the applicant was a Coptic Christian and that he had been subjected to verbal insults, abuse and threats from a small group of Islamic students from his village and from his Muslim landlord and his son. However the Tribunal found that while the verbal abuse the applicant was subjected to from the students from his village was unpleasant and unacceptable and the verbal threat he was subjected to on one occasion at the university was frightening to the applicant, such behaviour did not amount to persecution within the meaning of the Convention. Thus the Tribunal was unable to be satisfied that the verbal abuse and harassment suffered by the applicant was of sufficient seriousness as to amount to persecution.
The Tribunal also considered the applicant’s claim that his business was destroyed by Muslim fundamentalists. He claimed that Muslim fundamentalists came to his shop in April 1999, abused him, pushed over a ladder on which his friend was standing and threw stones at him. They ran away when the shopkeeper next door threatened to call the police. Thereafter the applicant left his village and moved to Cairo. The Tribunal found that the behaviour of the Muslim fundamentalists in running away when there was a threat to call the police was consistent with independent information indicating that violent assaults by fundamentalist Islamists against Christians are not tolerated by the Egyptian authorities. The Tribunal considered independent information in relation to the situation in Egypt and found no evidence to indicate that the authorities permit or condone violent attacks against Christians or that the authorities would withhold reasonable protection from Christians. The Tribunal was satisfied that if the applicant returned to Egypt and he or his business was threatened with harm from Muslim fundamentalists he would be able to access adequate and effective protection from the Egyptian authorities.
The applicant also claimed that he had an outstanding court action against him in relation to his involvement in renovation of a church without a permit in April 1996 and that even if his innocence was proven he would be attacked and persecuted by his Islamic neighbours. The Tribunal had regard to the fact that the applicant had said that he would provide a “detainment statement” in his initial application but had not done so either to the Department or the Tribunal. Given that the applicant had failed to provide the Tribunal with any documentation relating to the supposed court action against him, that he had continued to live in his home village and run his business there until May 1999 and that no action was taken against him by the authorities, the Tribunal was unable to be satisfied that there was a matter outstanding against him in the local court in his village. Moreover, even if there was such a matter, the applicant had provided no evidence and there was no evidence before the Tribunal to indicate that the applicant would not obtain a fair hearing in the court and be able to present evidence that the accusations against him were false. The Tribunal had regard to independent information in relation to the independence of the judiciary in Egypt.
The Tribunal also found the applicant’s claim that if he returned to Egypt he would be attacked and persecuted by his Islamic neighbours to be inconsistent with cited independent information before it, noting that the applicant had provided no evidence that he had any difficulty practising his religion in Egypt or that he was unable to obtain education or employment in Egypt or that he had experienced any difficulties living and working in Cairo. The Tribunal referred to the positive information provided by the applicant in relation to his activities in Egypt and concluded on the basis of this evidence and independent information that it was unable to be satisfied that if the applicant returned to Egypt there was a real chance he would be attacked and persecuted by his Islamic neighbours. The Tribunal found on the basis of the applicant’s oral evidence that the economic difficulties that the applicant may face on his return to Egypt were not Convention related. The Tribunal concluded that it was unable to be satisfied that there was a real chance that the applicant would face treatment amounting to persecution for a Convention reason if he returned to Egypt and was unable to be satisfied that he had a well-founded fear of persecution for any Convention reason.
The applicant filed an application for review in this Court on 29 July 2003. He filed an amended application in Court. The grounds relied on in the amended application are as follows:
(1)The Tribunal’s decision was affected by jurisdictional error in that the Tribunal took into account irrelevant considerations and failed to take into account relevant considerations.
(2)The Tribunal failed to exercise its jurisdiction by not giving the applicants the prescribed period of notice to attend a hearing.

Relevant and irrelevant considerations issue

The applicant contended that the Tribunal failed to take into account relevant considerations, being the case that the applicant was putting to it. This argument was put on one basis in written submissions and on a somewhat different basis in oral submissions. In written submissions it was contended that the Tribunal made the following finding with respect to the applicant’s claims concerning the accusation that he had attempted to convert a Muslim girl to Christianity:
While the Tribunal accepts the verbal abuse the applicant was subjected to from a small group of students from his village was unpleasant and unacceptable and the verbal threat the applicant was subjected to one occasion at the university was frightening to the applicant the Tribunal finds that such behaviour does not amount to persecution within the meaning of the Convention. The Tribunal is unable to be satisfied that the verbal abuse and harassment suffered by the applicant is of sufficient seriousness as to amount to persecution.
It was contended that in coming to this conclusion the Tribunal failed to appreciate that the applicant’s fear stemmed not from the verbal threats themselves but from the perceived likelihood that they may be carried out. It was contended that the “behaviour” which amounted to persecution within the meaning of the Convention was the feared behaviour, not the mere verbal abuse. It was also contended that rather than considering the applicant’s claims as put to it, the Tribunal referred to country information concerning the situation of Copts in general in Egypt, that none of that information dealt directly with a situation of the type described by the applicant and that it was therefore irrelevant to a proper consideration of the applicant’s case. It was contended that the Tribunal had, in effect, made a determination based on generalised assumptions without responding to, or dealing with, what the applicant actually feared.
The Tribunal is obliged to have regard to relevant considerations in the sense of the integers or aspects of the applicant’s claims (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 and Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244). However no failure to do so is apparent on the material before the Court. Contrary to the applicant’s contention it cannot be concluded that the Tribunal did not deal with the applicant’s claims. The claim in question was that at the beginning of 1998, when he was standing next to a female Islamic student at university, a group of students ran towards him with what he described in the Tribunal hearing as “eyes that were full of anger and evil” and threatened that they were going to kill him. The Tribunal specifically recited the claim made by him in the hearing that the gang had threatened him and said they would get him and kill him. That was the “verbal threat” referred to in the later findings and reasons part of the Tribunal decision which the Tribunal accepted was frightening to him. However the Tribunal, found as it was entitled to do, that the verbal abuse and harassment which had been suffered by the applicant was not of sufficient seriousness as to amount to persecution under s.91R(1) of the Migration Act 1958. The fact that the Tribunal accepted that the applicant was frightened did not oblige it to treat this conduct as any more than “verbal abuse and harassment” or to find that it was sufficiently serious to constitute persecution or that the applicant’s subjective fear of future harm was a well-founded fear. It is clear that the Tribunal did not accept that the applicant’s fear was justified, in the sense that it did not accept that there was any prospect that the threat would be carried out. This is apparent from its acceptance that he had been subject to verbal insults, abuse and threats from the small group of Islamic students but that when he told his priest of the verbal abuse he had suffered the priest told him to ignore the rude remarks and when he told his cousin about the verbal threat he had received at university he was told to calm down and not be frightened and also because although he claimed he was verbally insulted by this small group of students the Tribunal found that he continued to successfully run his video business in his village from 1995 until May 1999. Moreover even if the conduct had constituted persecution, such possibility was addressed in the finding by the Tribunal that if the applicant were to return to Egypt and be threatened with harm from Muslim fundamentalists he would be able to access adequate and effective protection from the Egyptian authorities.
The applicant also contended that the Tribunal referred to country information concerning the situation of Copts generally in Egypt rather than to his claimed situation or fears. It was contended that in so doing the Tribunal had regard to irrelevant considerations. Such a claim is not established. What constitutes an irrelevant consideration falls to be determined mainly by reference to the legislation pursuant to which the decision is made, in this case, the Migration Act 1958 (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [73] – [74]). As Allsop J (with whom Heerey J agreed) stated in Paul v MIMA (2001) 113 FCR 398 at [79] “A failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made where the claim has been addressed is not a jurisdictional error constituted by a failure to take into account a relevant consideration.” In this case there was no failure to deal with the applicant’s claims. The applicant claimed to be a Coptic Christian targeted by Muslims in his village because of his religion and also that the government did not protect Christians especially in small villages. It was in that context that the Tribunal referred to country information concerning Copts in considering a written submission concerning the situation faced by Egyptian Christians which had been provided by the applicant’s adviser. The Tribunal found that the submission did not relate to the specific claims of the applicant and explained that it preferred to rely on the consistent advice from the Department of Foreign Affairs and Trade and the annual reports on international religious freedom and other information set out in the decision in relation to the situation in Egypt. The Tribunal addressed not only the applicant’s claims in relation to specific instances of verbal abuse and harassment but also his more general claims to fear persecution on the basis of his religion. It did not simply consider country information about the situation of Cops in Egypt. Rather relevantly and appropriately it considered not only what had actually occurred to the applicant in Egypt but also independent information in relation to the situation of Copts in Egypt as well as in relation to state protection. Such information was not in any sense irrelevant. No jurisdictional error is apparent in the Tribunal treatment of such claims or in its reliance on country information.
In oral submissions the legal representative for the applicant clarified that the contention was that the point the applicant was making in his claims, particularly in the Tribunal hearing, was that it was not the immediate fears that he had at the moment of the incident in the bus or at the university or when the court case was filed (that is isolated incidents causing fear at the time) on which he relied, but rather a fear of future events, this being a fear of more serious harm coming to him in the future if he lives in Egypt. His fear was said to be that if he lived there he would have to live as a fugitive or, as he put it in the Tribunal hearing, as ‘a little mouse’ rather than being able to live a proper dignified life as a human being as a citizen of his country. It was contended that the Tribunal failed to take into account this aspect of the applicant’s claims because the Tribunal limited itself to considering the seriousness of the actual incidents that had occurred. However, as the Tribunal recognised, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to that requirement that an applicant must in fact hold such a fear. The applicant’s subjective fears in relation to the future were not of themselves sufficient to give rise to a well-founded fear of persecution. The well-foundedness of the fears of the applicant in relation to the future was addressed by the Tribunal. It considered the applicant’s fears of harm from Muslim fundamentalists and his Islamic neighbours in the future by reference to the availability of adequate State protection and in light of the inconsistencies between his claims that he would be attacked and persecuted by his Islamic neighbours and independent information in relation to the integration of Copts into Egyptian society and the co-existence of Christians and others in Egypt. Such information, as well as the evidence of the applicant in relation to his conduct in Egypt (including the fact that he remained in his village until 1999 and thereafter lived and worked in Cairo without any difficulties) was taken into account in the Tribunal conclusion that it was unable to be satisfied that if the applicant returned to Egypt there was a real chance he would be attacked and persecuted by his Islamic neighbours. This properly considered the applicant’s fears about more serious harm occurring to him in the future. The Tribunal went about its task properly and there is no jurisdictional error apparent in the manner in which it dealt with the applicant’s claims. It has not been established that the Tribunal took into account irrelevant considerations or failed to take into account relevant considerations.

Notice of invitation to hearing issue

The second ground raised by the applicant in the amended application is expressed as a claimed failure by the Tribunal to exercise its jurisdiction by not giving the applicant the prescribed period of notice to attend a hearing. The applicant attended a hearing on 28 June 2002. It was contended that the Tribunal failed to comply with s425A of the Migration Act in relation to the time specified for the hearing held by the Tribunal on 28 June 2002, that compliance with such procedural requirement was essential to the jurisdiction of the Tribunal under the Act and that the scheduling of the hearing at short notice was unfair to the applicant.
Section 425A of the Migration Act provides:
(1)     If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2)    The notice must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3)    The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4)    The notice must contain a statement of the effect of section 426A.
Relevantly subsection (3) provides for the period of notice to be at least the prescribed period. In this instance Migration Regulation 4.35D provides that, for subsection 425A(3), the prescribed period (where the applicant is not a detainee) “starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received” (Reg 4.35D(b)). It was contended that as the Tribunal sent the applicant a notice by letter dated 14 June 2002, the applicant was taken to have received the notice seven working days after it was dated (pursuant to s.441C(4)(a) of the Act). That date was 25 June 2002 and as the Tribunal was required by regulation 4.35D(b) to give 14 days notice of an invitation under s.425A it was submitted that the earliest date on which the hearing should have been held was 9 July 2002 rather than 28 June 2002.
The respondent submitted first that the s.425A(3) obligation did not apply to a rescheduled hearing. In the alternative, if it did, any breach was minimal because the Tribunal notified the applicant’s authorised recipient of the rescheduled hearing date by fax on 14 June 2002 which, it was contended, was taken to have been received by the applicant that day (pursuant to sections 441G and 441C(5)) so that the earliest hearing date (allowing for 14 days notice under regulation 4.35D(b)) would have been 29 June 2002. Finally if there was a breach of s.425A(3) the respondent submitted that relief should be refused on discretionary grounds.

It is necessary to set out in some detail what occurred both before and after the Tribunal hearing on 28 June 2002.
The original application for a protection visa was made by the applicant on 28 July 2000. The Tribunal notified the applicant by letter sent to him (with a copy sent to his migration agent) on 22 September 2000 that the application had been received and to send any new documents or written evidence to the Tribunal as soon as possible. This letter also foreshadowed that if the Tribunal could not make a decision in the applicant’s favour he would be asked whether he wanted to come to a hearing to give oral evidence and present argument. On 11 December 2001 the Tribunal wrote to the applicant requesting further information. From the material before the Court it appears that the applicant’s migration agent responded to this request for information by a facsimile on which the date was changed from

27 May 2002 to 28 June 2002.
In the meantime, on 26 April 2002 the Tribunal wrote to the applicant, by letter sent to his last notified residential address (with a copy sent to his migration agent), inviting him to a Tribunal hearing on 31 May 2002. There is no suggestion that there was any failure by the Tribunal to comply with its notification obligations in connection with this invitation. In particular the requirements of s.425A(3) (in conjunction with regulation 4.35(d)) were met.
However on 6 May 2002 the applicant’s migration agent sent a facsimile request to the Tribunal that the hearing, which had been set at 9.30am, be rescheduled with a later starting time as the adviser had temporary restricted mobility and was using a wheelchair and wished to avoid peak hour traffic. The response to hearing invitation was returned indicating that the applicant intended to attend the hearing. In response to this request the Tribunal wrote to the applicant on 6 May 2002 and sent a fax to the adviser agreeing to the request that the hearing be postponed and rescheduling the hearing at 10.00am on

31 May 2002. On 27 May 2002 the applicant’s adviser sent a fax to the Tribunal requesting that the hearing be rescheduled to a later date as she was in hospital and due to be discharged on 3 June 2002 and due to her medical condition had not been available for consultation with her client in preparation for the scheduled hearing. On 29 May 2002 the Tribunal wrote to the applicant and sent a fax to the migration agent in response to her request for a postponement. The letter to the applicant stated that on 27 May 2002 his adviser had asked the Tribunal to postpone the hearing, that the member had agreed and that the hearing would be on Friday 14 June 2002 at 9.30am.
On 6 June 2002 the applicant’s adviser again faxed the Tribunal acknowledging that the hearing had been rescheduled to 14 June 2002 in response to her request, stating that she had had major surgery and remained unfit for work until 14 June 2002 and unavailable for consultation with her client. It continued “I request that the hearing be postponed for further 10 to 14 days.” On 14 June 2002 the Tribunal responded by letter to the applicant dated 14 June 2002 and by fax to the adviser that the Tribunal had agreed to the request of the adviser to postpone the hearing and that the hearing was to be on 28 June 2002 at 9.30am.
The Tribunal held a hearing on 28 June 2002 which was attended by the applicant. The transcript of the hearing is before the Court from which it is apparent that no concern was expressed by the applicant about the amount of notice given of the hearing. It does reveal that towards the end the hearing the interpreter indicated that he or she had only been booked for three hours and had an appointment to go to at 12:30. The Tribunal member indicated that she had not yet put a lot of independent information to the applicant, that she had a real difficulty with his application which did not contain the detail he had provided in the hearing and that she had not yet received a response to her request (of 11 December 2001) for information from the applicant. The applicant stated that he had recently received documents from Cairo and these had not yet been translated. The Tribunal member sought an explanation as to why this detail had not been presented before and the applicant’s adviser indicated that she would rather address this in a letter as she was not in a position to address it at that time. She then stated that the applicant’s mother had returned to Egypt to collect documentation. The Tribunal member indicated that, with the agreement of the migration agent, she would send copies of independent information for comment and the adviser would provide the applicant’s comments in writing. It was also agreed that the adviser could provide a written submission. The Tribunal member advised that they would probably have to have another hearing because they did not have enough time on that day and that she would write to them about the date of the new hearing. The migration agent undertook to provide a written submission and an indication of the content of the documents the applicant sought to rely upon within two weeks.
On 28 June 2002 the Tribunal faxed to the adviser (and posted to the applicant) country information, as discussed at the hearing, for comment. On 31 July 2002 the Tribunal wrote to the applicant indicating that neither a written submission nor documents had been received and asking that translated copies of the documents the applicant wished to submit be provided by 2 August 2002 and that the adviser provide a written submission, if she still wished to do so, by

2 August 2002. This letter also invited the applicant to attend a further hearing of the Tribunal on 7 August 2002 as had been foreshadowed at the hearing on 28 June 2002. On 6 August 2002 the applicant’s migration agent faxed the Tribunal advising that the applicant would not be attending the further hearing scheduled for 7 August 2002 and requesting that a decision regarding his application be made based on the previous hearing and any further submissions received by the Tribunal prior to handing down of the decision.
On 21 August 2002 the Tribunal wrote to the applicant and his adviser notifying them that a decision had been made which would be handed down on 10 September 2002. On 5 September 2002 the migration agent faxed the Tribunal a written submission relating to the situation faced by Egyptian Christians. The Tribunal acknowledged receipt of this information by letter sent to the applicant and his adviser on

10 September 2002 confirming that the decision would be handed down on that day. In the Tribunal reasons for decision the Tribunal stated that it had received the adviser’s submission discussing the situation faced by Egyptian Christians on 5 September 2002, that the discussion did not relate to the specific claims of the applicant and that the Tribunal had read and considered it but saw no reason to change the decision it had made, preferring to rely on the consistent advice from DFAT and annual reports on international religious freedom and other independent information set out in the decision. The Tribunal went on to say that it accepted that there was a trend towards improvement in the Egyptian government’s respect for and protection of the right to religious freedom and that while there were cases of discrimination against Christians there was no evidence that Christians in Egypt suffered from persecution. The Tribunal also noted the absence of reports of terrorist attacks against Christians in 1999, 2000 and 2001 in concluding that it was unable to be satisfied that the applicant faced a real chance of being persecuted by his Islamic neighbours or Islamic fundamentalists if he returned to Egypt.
From this survey of the procedures adopted by the Tribunal, a number of things are apparent. First and most importantly, the Tribunal hearing in issue was in fact a postponement of a hearing. It is not in dispute that proper notice was given in respect of the first hearing date set by the Tribunal (31 May 2002). The hearing date of 28 June 2002 was the third postponement requested by the adviser. Each postponement was granted by the Tribunal (the one hour delay on

31 May 2002, the postponement to 14 June 2002 and then to 28 June 2002). In the last request for a postponement (made on 6 June 2002) the adviser had expressly requested a postponement of 10 to 14 days. The Tribunal met this request, postponing the hearing from 14 June 2002 to 28 June 2002.
It is necessary to consider first whether the Tribunal was obliged to comply with s.425A(3) and regulation 4.35D in relation to the postponed hearing in circumstances where these requirements had been complied with in relation to the original notice dated 26 April 2002 fixing the hearing date of 31 May 2002. The only authority cited in support of the proposition that s.425A(3) applies in relation to a postponed or rescheduled hearing is a brief judgment by Sackville J in NBBU v MIMIA [2004] FCA 767 in which his Honour gave reasons for making consent orders remitting a matter to the Tribunal for reconsideration. His Honour indicated that the applicant in that case had been invited by letter from the Tribunal dated 28 October 2003 to attend a hearing on 16 December 2003. Subsequently that hearing date was changed to 18 December 2003 and the Tribunal notified the applicant of this by facsimile letter dated 16 December 2003 sent to his authorised recipient. Section 425A(3) required a prescribed period of notice, which under regulation 4.35D(b) was 14 days. The judgment continues that the respondent had accepted that non-compliance with the prescribed period constituted a jurisdictional error. The judgment does not state expressly whether the hearing date was changed at the volition of the Tribunal or at the request of the applicant or his adviser but it does refer to the Tribunal notifying the applicant of the change, which suggests that it was at the volition of the Tribunal.
Section 425 of the Act obliges the Tribunal to ‘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’. The respondent did not contend that any of the exceptions to the s.425 obligation applied. (Even though the applicant had failed to respond to the 11 December 2001 request for information (until 28 June 2002) it was not suggested that ss.425(2)(c) and 424C(1) meant that the Tribunal could make a decision on the review without taking any further action to obtain the additional information). It is clear that the Tribunal invited the applicant to appear as required by s.425 and met the requirements of s.425A by the notice of 26 April 2002.
The issue is whether the Tribunal was required to meet the s425A obligations again in relation to the postponement of the hearing. Section 425A(1) applies ‘if the applicant is invited to appear before the Tribunal.’ In such a case the Tribunal ‘must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.’ Subsection (2) specifies how the subsection (1) notice is to be given and subsection (3) specifies the minimum ‘period of notice.’ It is apparent from a consideration of Division 4 of Part 7 of the Act that section 425A contains the mechanism by which the required invitation to appear under s.425 is to be extended. (See VNAA v MIMIA [2004] FCAFC 134 at [14]). This provision is intended to ensure that the s.425 invitation is a meaningful invitation and that the applicant is notified in such a way and given such time that he or she is able to prepare for the hearing, as well as ensuring that the applicant is made aware of the purpose of the hearing and the consequences of non-attendance. (See MIMA v Mohammad[2000] FCA 1275 at [43] per Branson J).
In this case that invitation required by ss.425 and 425A was contained in the letter of 26 April 2002. This invitation made the applicant aware of the purpose of the hearing and the consequences of non-attendance. It provided ample time for preparation -–the postponement gave additional time not mandated by the legislation. The subsequent letters of 6 May 2002, 29 May 2002 and 14 June 2002 were merely re-scheduling (at the request of the applicant) the time for the hearing to which the applicant had already been invited. The applicant had already been given adequate time (in accordance with s.425A(3)) to prepare for the hearing and had been made aware of the effect of s.426A. From the perspective of the Tribunal the invitation it had extended remained open. This is not a case where the Tribunal itself re-scheduled a hearing and hence might be said to have issued a fresh invitation to which s.425A(3) should apply. Rather the invitation had been properly extended and accepted by the applicant in a response to hearing form. In postponing the hearing at the request of the applicant’s adviser the Tribunal was not issuing a fresh invitation for which the specified period of notice would be required. It had met such obligations in the earlier notice of 26 April 2002.
Common sense would suggest that while the s.425A notice requirements apply to an initial invitation and may apply to a hearing rescheduled by the Tribunal, if a hearing date is rescheduled at the request of the applicant (or his adviser) it should not be necessary for the Tribunal to provide a fresh 14 day period of notice as contemplated by 425A(3), provided the obligations under s.425A have been met in relation to the initial invitation. Were it otherwise any delay, even of minutes or hours, at the request of the applicant would give rise to a failure to comply s.425A. Such an interpretation is also consistent with the language of s.425A which is limited it to situations where an applicant “is invited to appear before the Tribunal” as distinct from situations where, having been properly invited, the applicant subsequently seeks a rescheduling of his or her appearance before the Tribunal. It is also consistent with the detailed statutory procedure in Division 4 of Part 7 and with the purpose of s.425A(3) to ensure that the applicant is given adequate notice of any scheduled hearing.
I am satisfied that the Tribunal met its obligations under s.425A, in particular under s.425A(3), in its initial invitation to the applicant to attend a hearing dated 26 April 2002. That letter is expressed in terms of an invitation to a hearing. In contrast the letters of 6 May 2002,

29 May 2002 and, importantly, 14 June 2002 do not invite the applicant to a hearing as he has already received such invitation. Nor do they change the date for the hearing at the instigation of the Tribunal in a manner which might be considered to be a fresh invitation to appear. Rather, each letter states that the Tribunal has agreed to the adviser’s request to postpone the hearing and provide a new hearing date as sought. In those circumstances I am not satisfied that the letter of 14 June 2002 is, or has to be, a notice of invitation to appear within s.425A(1) of the Migration Act. Hence the period of notice prescribed by a combination of subsections 425A(3) and Regulation 4.35D is not applicable.
I have, however, considered what the consequences of a breach of s.425A(3) would be in case I am wrong in my view of the operation of the section. The letter of 14 June 2002 did not give the applicant

14 days notice. If s.425A(3) was breached, this would be so even if the respondent’s contention that the period of notice ended at the end of

28 June 2004 was accepted. However I should state for the sake of completeness that I am not persuaded on the material before me that the applicant had appointed his migration agent to be his authorised recipient such that the facsimile notification sent to that person would be taken to be given to the applicant within s.441G. Were that the case, as a notice given by fax, it would have been taken to have been received at the end of the day on which it was transmitted under s.441C(5) of the Act (that is, on 14 June 2002). The applicant did complete a Departmental form appointing a particular named person as his agent in relation to his application in dealing with the Department of Immigration and Multicultural Affairs but the appointment was in relation to dealings with the Department of Immigration and Multicultural Affairs. It did not apply to the Tribunal. More relevantly, the application for review made by the applicant to the Tribunal on 21 September 2000 did not (unlike different application forms considered in other cases) provide specifically for the nomination of an authorised recipient (cf. SZBSY v MIMIA [2004] FCA 728). It required the applicant to provide a home address and an address for service to which all documents would be sent unless otherwise advised. The applicant provided a home address but left blank the space for address for service. The form then asked if the applicant had an adviser whom he authorised to act for him in relation to the application and stated ‘the Tribunal will send copies of all correspondence to your adviser.’ In contrast, elsewhere in the application form it was stated that where there was more than one applicant a contact person must be nominated and the Tribunal would communicate with that person about the application unless requested otherwise. Reading the particular Refugee Review Tribunal application for review form as a whole, it is clear that it does not provide for the appointment of an authorised recipient under s.441G. It does not constitute a written notice of the name and address of an authorised recipient authorised by the applicant to do things on behalf of the applicant ‘that consist of, or include, receiving documents in connection with the review’ such that the Tribunal’s obligations to notify the applicant would be satisfied by the Tribunal giving such person (instead of the applicant) any document that it would otherwise have given to the applicant. Hence it was necessary for the Tribunal to give any requisite notice to the applicant at the only address provided by him, being his home address, and, consistent with its undertaking in the application for review, to also send copies of correspondence to his adviser who had provided an address, a phone number and facsimile number. Hence, if s.425A did apply to the postponement of 14 June 2002, the inadequacy of the period of notice was not just one day as contended. Rather, as the applicant submitted, the earliest the hearing date could have been was 9 July 2002.
While this would mean that any breach of s.425A(3) was not quite as ‘minimal’ as the respondent contended, it is still necessary to consider the consequences of such a breach, as non-compliance with the procedural requirements of the Act by the Tribunal will not necessarily result in a decision of the Tribunal being set aside.
I have had regard to all the material before me, including the circumstances in which any breach arose. Proper notice was given initially, a number of postponements were sought by the applicant’s adviser and granted and the particular postponement sought that led to the hearing being held on 28 June 2002 was in accordance with the applicant’s adviser’s request of a postponement of 10 to 14 days. There is no evidence of any application by the applicant or his adviser for any further time, whether in the period between 14 and 28 June 2002, at the hearing or thereafter.
So far as appears from the transcript of the hearing, the applicant and his agent were content to proceed on 28 June 2002 and there is nothing before the Court to suggest that the course taken by the applicant would have been in any way different if the hearing had been postponed and held on or after 9 July 2002. Moreover, at the end of the hearing on 28 June 2002 the Tribunal adjourned the hearing because the interpreter could not remain. The Tribunal still wished to put further material to the applicant. The transcript reveals that the Tribunal not only allowed the applicant the opportunity to comment upon independent material that it proposed to (and did) forward to his adviser, but that it also indicated that another hearing date would be set down after the adviser had put in a submission and any further material had been submitted. The Tribunal did criticise the lack of detail in what had been provided but this related to the time that had elapsed since the application was made to the Department and the absence of the provision of documentation within that time. There is no indication in the transcript that either the applicant or his agent sought any further time or opportunity other than that which was offered by the Tribunal. Thereafter, while the Tribunal proposed that a further hearing take place on 7 August 2002 (which again must be seen as allowing more than ample time for the applicant) on 6 August 2002 the Tribunal received a facsimile from the applicant’s adviser stating that the applicant would not be attending the further hearing and requesting that a decision be made based on the previous hearing and any further submissions received by the Tribunal prior to the handing down of the decision. Further material was received by the Tribunal from the applicant’s adviser and the Tribunal addressed that material as discussed above in the Tribunal reasons for decision. At no time after the hearing was there any application by the applicant or his migration agent for any further opportunity to forward material or to be heard by the Tribunal. Ample opportunity was given. All that was submitted by the applicant was taken into account by the Tribunal. In those circumstances no unfairness is apparent. Indeed, the applicant was ultimately content for the Tribunal to proceed to make a decision on the material before it, without affording him any further opportunity to present evidence at another hearing.

Having considered all of the material before me I am satisfied that if there is a breach of s.425A(3), it is appropriate to refuse relief on discretionary grounds. I note first that it is not every breach of a provision of the Migration Act that amounts to a jurisdictional error (compare MIMIA v SCAR (2003) 198 ALR 295 at [35] in relation to s.425 with NAHV of 2002 v MIMIA (2003) 129 FCR 325 at [23] – [25] to the effect that non-compliance a procedural requirement such as s.424A(2) does not, without more constitute jurisdictional error). In this case, even if there was a breach of s.425A(3) consisting of the giving of less than the prescribed period of notice, the important substantive obligation in s.425 was met. The applicant had the opportunity to attend a hearing consistent with s.425. The postponement of the hearing was at and in accordance with the request of the applicant’s adviser. The Tribunal undertook its task of review fairly.
Any breach of the section ‘did not result in any practical injustice of the case’ (see VUAX v MIMIA [2004] FCAFC 158 at [56]-[57]. There was no prejudice to the applicant. On the contrary, the fact that the Tribunal granted each of the postponements sought by the applicant’s adviser gave the applicant the opportunity to have the adviser’s assistance before and at the hearing. The lack of a few extra days before the last postponement of the hearing could not have disadvantaged the applicant.
Accordingly, even if there was a breach of s.425A which constituted jurisdictional error, I would refuse relief as a matter of discretion. Any breach was immaterial and there was no practical injustice. The application should be dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 24 November 2004