SZBCS v Minister for Immigration

[2005] FMCA 25

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBCS v MINISTER FOR IMMIGRATION [2005] FMCA 25

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – applicant and his migration agent failing to respond to hearing invitation – RRT proceeding in the absence of the applicant – no reviewable error found – application dismissed.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5
Migration Act 1958 (Cth), ss.424A, 425, 425A, 426A, 444C, 441G

Abebe v Commonwealth (1999) 197 CLR 510
Ling v Minister for Immigration [2004] FCA 1069
Minister for Immigration v NAMW [2004] FCAFC 64
NABE v Minister for Immigration (No 2) [2004] FCAFC 263
NACB v Minister for Immigration [2003] FCAFC 235
NASF v Minister for Immigration [2004] FCAFC 162
NATC v Minister for Immigration [2004] FCAFC 52
SJSB v Minister for Immigration [2004] FCAFC 215
SZBSZ v Minister for Immigration [2004] FCA 779
VAF v Minister for Immigration [2004] FCAFC 123
VNAA v Minister for Immigration [2004] FCAFC 134
VUAX v Minister for Immigration [2004] FCAFC 158
VWST v Minister for Immigration [2004] FCAFC 286
W404/01A v Minister for Immigration [2003] FCAFC 255

Applicant: SZBCS

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG1530 of 2003

Judgment of: Driver FM

Hearing date: 18 January 2005

Last Submission: 18 January 2005

Delivered at: Sydney

Delivered on: 18 January 2005

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr G Johnson

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1530 of 2003

SZBCS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 16 June 2003 and handed down on 11 July 2003.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Bangladesh and had made claims of political persecution.  He arrived in Australia on 12 July 2002. On 29 July 2002 he lodged an application for a protection (class XA) visa with the Minister's Department.  On 16 September 2002 a delegate of the Minister refused that application.  The applicant applied on 4 October 2002 to the RRT for a review of that decision. 

2. The presiding member in the decision dealt reasonably comprehensively with the applicant's claims, as well as with country information concerning the political situation in Bangladesh.  On page 77 of the court book, which I received in evidence, the presiding member said this:

   On 2 May 2003 the Tribunal wrote to advise [the applicant] that it had examined all the information relating to his application, but was not prepared to make a favourable decision on that information alone.  He was invited to attend a hearing of the Tribunal and was advised that if he did not attend the hearing a decision could be made without further notice.  A copy of this letter was sent to his adviser.  No response has been received.

3. The presiding member then went on to consider the applicant's claims and make a decision in the absence of the applicant. Although not specifically stated in the reasons for decision of the RRT, it is apparent that the presiding member acted in reliance upon s.426A of the Migration Act 1958 (Cth) (“the Migration Act”). That section permits the RRT to proceed in the absence of an applicant where the applicant has been invited to a hearing and fails to appear.

4. It is apparent from the balance of the reasons for decision of the RRT that the applicant failed because there was insufficient material before the RRT to support his protection visa application.  The presiding member noted that if the applicant had attended the hearing it would have been possible to investigate his claims more fully.  The presiding member stated that the applicant had failed to appear and on the evidence currently before him he was not satisfied that the applicant had a well founded fear of persecution in Bangladesh for reasons of political opinion or for any other reason in the Convention.

5. The applicant relies upon his application filed on 5 August 2003 in this Court. That application sets out five grounds of review. These are expressed generally and no particulars are provided. However, on 17 January 2005 the applicant filed written submissions. In those written submissions the applicant asserts a breach of s.424A of the Migration Act in relation to the country information referred to by the presiding member. Further, the applicant disputes the reasoning of the presiding member. Thirdly, the applicant asserts that he was denied the opportunity to attend a hearing before the RRT and that the RRT therefore breached ss.425 and 425A of the Migration Act.

6. Mr Johnson, for the Minister, prepared and filed written submission on 6 January 2005 in relation to the applicant's application for judicial review. I agree with and adopt those submissions for the purposes of this judgment in relation to the grounds advanced in the application. In particular, I agree with and adopt paragraph 16 of the written submissions in relation to s.424A(1) of the Migration Act. That section has no application to the country information referred to by the presiding member because of the operation of s.424A(3) of the Migration Act:

   (i) The applicant’s failure to attend the hearing – Consequences

   On 2 May 2003, the RRT wrote to the applicant, advising him that it had examined all of the information relating to his application and was not prepared to make a favourable decision on that information alone, inviting him to attend a hearing of the RRT and warning him that if he did not attend the hearing a decision could be made without further notice to him.  Copies of the letter were sent both to the applicant at 94 Bayswater Road, Rushcutters Bay NSW 2011 and to his authorised recipient, a migration agent, Md Sirajul Haque, M.S. Haque and Co, 14 Miles Street, Mascot NSW 2020 (court book, pages 59-60).

   The copy sent to the applicant at the Bayswater Road address was returned to the RRT, but not the copy sent to the authorised recipient (court book, pages 61-62).  The applicant’s nomination of Md Sirajul Haque as his authorised recipient occurred in section C of his application to the RRT (court book, page 54) and the above mentioned Bayswater Road address was given by the applicant to the RRT as both his home address and his mailing address in section B of that same application (court book, page 53).

   As noted by the RRT, at court book, pages 77.9-78, the RRT received no response and the applicant failed to appear at the hearing.

   The RRT complied with sections 425 and 425A of the Act and was entitled by section 426A to proceed to decide the application without taking any further action to allow or enable the applicant to appear before it.

   By reason of section 444C(4) of the Act, the applicant is taken to have received the document sent to his last notified address seven working days after the date of the letter and, in any event, section 441G(2) provides that “if the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant….”.

   It does not matter whether the applicant actually received the notice (e.g. NASF v Minister for Immigration [2004] FCAFC 162 at [16] per Beaumont, Conti and Crennan JJ; SZBSZ v Minister for Immigration [2004] FCA 779 at [25] per Bennett J).

   As observed by the Full Court (Sundberg, Hely and Gyles JJ) in VNAA v Minister for Immigration [2004] FCAFC 134 at [16], Part 7 of the Act (which includes the above mentioned provisions) “expressly contemplates that, in particular circumstances, an applicant will not attend a hearing, involving no fault of the applicant. Not withstanding that, the RRT is authorised to decide the review in the applicant’s absence”.

   In short, the material before the Court does not permit any finding that jurisdictional error arose as a result of the RRT proceeding to decide the matter as it did in this case.

   The hearing was the opportunity for the applicant to make any submissions he wished to make, or to put any further material before the RRT, or to answer any concerns that the RRT might then have put to him. He cannot now complain that he did not take advantage of that opportunity. It involved no procedural unfairness and was expressly authorised by the Act.  

   (ii) Country information – section 424A

   The applicant alleges that he was not provided with an opportunity to comment on materials upon which the RRT relied in reaching its decision. The RRT did refer to country information in the “overview of the current political and human rights situation in Bangladesh” that it set out from court book, page 74.7, but none of the information there described or set out was information with respect to which the RRT was required by section 424A to give particulars to the applicant:

   a)The information does not relate specifically to the applicant in the requisite sense. Reference is made of this respect to Minister for Immigration v NAMW [2004] FCAFC 64, especially at [69]-[70] per Beaumont J and at [138]-[139] per Merkel and Hely JJ, clarifying the reach of section 424A(3)(a);

   b)Nor is it conceded that all or any of the information there set out was considered by the RRT to be “the reason, or part of the reason, for affirming the decision” within the meaning of section 424A(1)(a). To meet that description, information must be “an integral part” of the RRT’s reasons and not “relatively minor and unimportant in the scheme of things” (VUAX v Minister for Immigration [2004] FCAFC 158 per Kiefel, Weinberg and Stone JJ at [54]; VAF v Minister for Immigration [2004] FCAFC 123 per Finn and Stone JJ at [29]-[33] and, more particularly, at [41]; Ling v Minister for Immigration [2004] FCA 1069 at [29]-[31] and [41] per Branson J). As noted below, it was the RRT’s lack of satisfaction upon the limited material put forward by the applicant that was the basis for its decision.

   (iii) The RRT’s findings and consideration of the applicant’s claims 

   The RRT found, at court book, page 78, that the applicant had failed to provide sufficient information to satisfy it that his claims were true or that his fears are well-founded.  Examples were then given.

   Also on that page, the RRT explained that, if the applicant had attended the hearing, it would have been possible for it to investigate his claims more fully, but that he had failed to do so and that “on the evidence currently before (the RRT)”, it was “not satisfied that the applicant has a well-founded fear of persecution in Bangladesh for reasons of political opinion or any other reason in the Convention”.  This was a case, like that considered by Ryan, Jacobson and Lander JJ in SJSB v Minister for Immigration [2004] FCAFC 215, where, at [15]-[16], their Honours referred to the criteria for the grant of a protection visa and held:

   It can be seen that satisfaction of that criterion depends not on a particular matter being established, but on the Minister’s attaining a state of satisfaction as to a number of matters which have to exist for Australia to have protection obligations to an applicant under the Refugees Convention. As Gummow and Hayne JJ observed in Abebe v The Commonwealth (1999) 197 CLR 510 at 576 [187] in relation to the Tribunal when standing in the shoes of the Minister;

   The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.

   Here too, no jurisdictional error is revealed by the fact that what the applicant put forward did not cause the RRT to be satisfied as to the applicable criteria. It also follows that the applicant’s complaint that there was “no material to justify the decision” (ground 4) is misconceived, because, the RRT’s decision was based upon the absence of material bringing it to the state of satisfaction required.  As in SJSB at [17], even if the present decision of the RRT was not a privative clause decision, it would not be amenable to judicial review on a ground analogous to the “no evidence” ground afforded by s5(1)(h) of the ADJR Act. 

   The applicant also alleges that the RRT failed to “identify the issues of the case” (ground 2), but particularises that ground only in terms of a generalised reference to his “real fear…upon returning to his homeland due to his serious involvement in Awami League politics”.  The RRT plainly noted the applicant’s claims to have been a high profile member of the Awami League and to have been associated with leading members of the party (court book, page 78.2), but referred to the lack of detail given by the applicant and found itself unsatisfied that any of his claims were true or that his fears were well-founded (ibid.). 

   The applicant also alleges that the RRT failed to consider “the current situation…in Bangladesh” (ground 2), but that proposition is untenable in view of the RRT’s reasons from court book, page 74.6.  Certainly, no jurisdictional error is evident.  Again, it is relevant that the Tribunal’s decision was based upon the lack of evidence before it as to matters upon which it had to be satisfied to find that the applicant was entitled to a protection visa.

   The applicant further claims in his application to this Court that the RRT assessed his case “only as the member of the Awami League” and “failed to consider the applicant as a member of a particular social group” (ground 5), but that allegation is not particularised and the RRT, at court book, page 78.6, found that it was not satisfied that the applicant had a “well-founded fear of persecution in Bangladesh for reasons of political opinion or for any other reason in the Convention” (underlining added).  It is simply not established that the RRT failed to consider any claim made by the applicant such as to give rise to jurisdictional error of the kind discussed in NABE v Minister for Immigration (No 2) [2004] FCAFC 263 at [55]-[63].

   Ground 1 is unparticularised and, as noted above, ground 6 misconceives the role of the Court by imploring merits review. Suffice to say (in relation to those and other grounds) that the RRT identified and considered the applicant’s claims, made no error as to the criteria required to be applied and reached its decision findings of fact within its own domain. 

   There was a rational basis for the RRT’s decision, but, even if that were not so, want of logic in the RRT’s reasons is not an available ground of review: VWST v Minister for Immigration [2004] FCAFC 286 at [18] per Kiefel, Marshall and Downes JJ, applying NATC v Minister for Immigration [2004] FCAFC 52 at [25], which in turn approved NACB v Minister for Immigration [2003] FCAFC 235[1]. See also W404/01A of 2002 v Minister for Immigration [2003] FCAFC 255 at [35].

   [1] See paragraphs [24]-[30] of NACB, set out in VWST at [16].

7. The attack by the applicant on the presiding member's reasoning is only an attack upon the merits of the RRT decision. The Court has no jurisdiction to review the merits of the decision. The real issue is whether the RRT proceedings were fair and whether ss.425 and 425A of the Migration Act were breached. Mr Johnson read an affidavit by Svetlana Zarucki filed on 10 January 2005. That affidavit, read in conjunction with pages 59-62 of the court book, establishes that the applicant was invited in writing to attend a hearing before the RRT. The letter was sent by registered post and was returned to the RRT. The applicant told me from the bar table that he had at that stage changed his residence and did not receive the letter. I have no reason to disbelieve him.

8. However, it is clear from page 54 of the court book that the applicant had appointed a migration agent, Mr Sirajul Haque as his authorised recipient. In the circumstances, s.441G of the Migration Act required the RRT to send the hearing invitation to Mr Haque. The court book and the affidavit of Ms Zarucki establishes that the hearing invitation was sent to Mr Haque. It was sent by registered post to him. There is no indication in the court book that Mr Haque did not receive it.

9. The applicant, from the bar table, stated that to his knowledge Mr Haque did receive that invitation and wrote to him about it.  However, he did not receive that letter as it was also sent to his old address.  The applicant told me from the bar table that he had telephoned Mr Haque to advise him of his change of address and had arranged to go to see Mr Haque but had neglected to do so.  He had orally asked Mr Haque to advise the RRT of his change of address but Mr Haque apparently forgot to do so.  He may have been waiting for the anticipated conference with his client.

10. In any event, there is no doubt that the RRT met its statutory obligations under ss.425 and 425A of the Migration Act. As I have already noted, the RRT was entitled to proceed in the absence of the applicant under s.426A of the Migration Act. The RRT had received nothing from Mr Haque to indicate whether or not he or the applicant wished to attend a hearing. In the circumstances of this matter, I am satisfied that there was no procedural unfairness in the RRT proceeding without further inquiry.

11. If the RRT had been a court and if Mr Haque had been a legal practitioner I would have expected Mr Haque to have contacted the court to advise that he had been unable to make contact with his client or obtain appropriate instructions.  It appears that that did not occur.  It may be that the same standards that apply to legal practitioners do not apply to migration agents.  This case indicates that perhaps the standard applicable to migration agents might be properly raised. 

12. In any event, any failure on the part of Mr Haque or the applicant himself was not the fault of the RRT.  There was no jurisdictional error in the decision of the RRT. 

13. Accordingly, I must dismiss the application and I do so.

14. On the question of costs, Mr Johnson has sought an order for costs fixed in the sum of $4,500 on a party/party basis.  The applicant has referred to his impecuniosity but that is not a reason to refrain from making a costs order.  I am satisfied that costs should follow the event.  I am also satisfied that, on a party/party basis, costs of at least $4,000 would have been reasonably and properly incurred on behalf of the Minister in this matter. 

15. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  19 January 2005