SZDLA v Minister for Immigration
[2004] FMCA 722
•7 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDLA & ORS v MINISTER FOR IMMIGRATION & ANOR | [2004] FMCA 722 |
| MIGRATION – Review of Refugee Review Tribunal decision – protection visa – persecution – multiple applicants – invitation to a hearing – no error of law – privative clause – application dismissed. Migration Act 1958 (Cth) Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicants: | SZDLA, SZDLB, SZDLC |
| Respondents: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL |
| File No: | SYG1260 of 2004 |
| Delivered on: | 7 October 2004 |
| Delivered at: | Sydney |
| Hearing date: | 5 October 2004 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Advocate for the Applicants: | Michael Jones |
| Solicitor for the Applicants: | Michael Jones, Solicitor |
| Counsel for the Respondent: | Dean Jordan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The objection to competency is upheld.
The application is dismissed.
The applicants are to pay the Minister's costs and disbursements of and incidental to the application fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1260 of 2004
| SZDLA, SZDLB & SZDLC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made on 28 September 2000 and handed down on 17 October 2000. The Tribunal affirmed a decision of a delegate of the Minister not to grant the three applicants protection visas.
The applicants are wife, husband and child, but only the wife made specific claims under the Refugees Convention.
The relevant background facts are set out in paragraphs 2 to 5 of the written submissions prepared by counsel on behalf of the respondent.
I adopt those paragraphs for the purposes of this judgment:
(2) The applicants are nationals of Russia. The first applicant and second applicant are, respectively, wife and husband. The third applicant is their daughter. Only the first applicant (the applicant) made specific claims for asylum. The sole basis for the applications for protection visas by the second and third applicants was their family relationship with the applicant.
(3)The applicant claimed to fear persecution in Russia for reasons of religion arising from her evangelical activities as a Jehovah's Witness. She claimed that she had been involved in conducting Bible studies for school students and had been directed to cease these classes by police. The applicant claimed that when she continued her involvement in the Bible study classes she was forcibly admitted to a mental hospital and medicated against her will.
(4)Notwithstanding a number of inconsistencies between the applicant's initial claims and her evidence at the hearing, the tribunal accepted the applicant's evidence in relation to her religious activities and her admission to a mental hospital. However, the tribunal was not satisfied that the applicant's admission to a mental hospital was motivated for reasons of religion. This finding was based upon country information indicating that the Jehovah’s Witnesses are an officially recognised and well subscribed religious organisation in Russia and that the previous systematic abuse of psychiatry under the Soviet regime had ceased. In support of this finding the tribunal also referred to documentation submitted by the applicant which was general in nature and, as such, did not advance the applicant's claim that her admission to psychiatric care was caused by her religious activities.
(5) In the alternative, the tribunal referred to country information and found that even if the applicant had been detained and mistreated because of her religion, the Russian authorities would be able to protect the applicant from any such persecution in the future.
The Law
Jurisdiction: the effect of section 474(1) of the Migration Act
Subsection 474(1) of the Migration Act1958 (Cth) (the Act) provides:
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
The effect of section 474 of the Act has been considered by the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (S157/2002) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441.
A decision by the Tribunal that involves a jurisdictional error – either a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act – is not a “decision made under the Act” and is thus not a privative clause decision as defined in sections 474(2) and 474(3) of the Act. Such a decision is therefore reviewable notwithstanding section 474.
However, not every breach of a restriction, limitation or requirement in the Act will result in jurisdictional error. The effect of section 474 of the Act is to necessitate an examination of the restriction, limitation or requirement in question to ascertain whether the non-observance of those limitations or requirements results in jurisdictional error in the light of the restrictions on judicial review pursuant to section 474 (S157/2002 at [77]). This is a matter of statutory construction and involves an attempt to reconcile the section 474 restrictions on judicial review with the particular restriction, limitation or requirement.
Reconciliation will not be possible where the non-observance is of an “inviolable jurisdictional restraint” or an “imperative duty” (S157/2002 at [76]). Therefore the jurisdictional error cannot be protected by section 474.
Examples of situations where an error will amount to a jurisdictional error in the light of section 474 are where there has been a “manifest defect of jurisdiction” and “manifest fraud” (S157/2002 at [12]) or where the error involves a limitation or duty which was “indispensable” or “essential to valid action” (S157/2002 at [76]). However, as a general proposition, jurisdictional error for the purposes of section 474 carries the same meaning as under the general law: SDAV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 43.
Other relevant statutory provisions
The other relevant statutory provisions for the purpose of this matter are sections 36(2), 65, 425, 474 and 477 of the Act. Part 866 in Schedule 2 of the Migration Regulations 1994 and article 1A(2) of the Refugees Convention 1951 are also applicable.
Claims before the Department and the Tribunal
The claims before the Department and the Tribunal are set out in the Court Book and for relevant purposes are adequately summarised in the respondent's submissions quoted above. As the only ground before the Court is whether the Tribunal failed to comply with section 425 of the Act, it is unnecessary to further detail these claims.
The applicants’ submissions
The grounds in the application state:
(1)The Tribunal's decision involved jurisdictional error of law in that the Tribunal failed to comply with s 425 of the Migration Act 1958 in relation to the Second and Third Applicants.
Particulars
Section 425 requires the Tribunal to invites 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 Second and Third Applicants were not given such an invitation.
(2)The Tribunal denied the First Applicant natural justice.
The applicants told the Court through their solicitor, Mr Jones, that the natural justice ground was not being pressed.
The applicants contend that the requirement in section 425(1) to invite applicants to appear before the Tribunal to give evidence and present arguments is mandatory and essential to the Tribunal's exercise of its jurisdiction. They further contend that it is implicit in the obligation under this section that the hearing must be a genuine one, not “a hollow shell or an empty gesture” (Mazhar v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 183 ALR 188). They submit:
(10)The Act makes no distinction between applicants for protection visas. Where s 425(1) refers to “the applicant” it must be a reference to each person who applies for a protection visa [whether or not they are the first applicant on the application or the second or third].
(11)The criteria for a protection visa are set out in Part 866 of Schedule 2 of the Migration Regulations, and must include the criterion that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (MA [Migration Act] s 36(2)). At all relevant times Part 866 required, at the date of application, that an applicant either make specific claims under the Refugees Convention or claim to be a member of the family unit of a person who had made such claims and was an applicant for a protection visa. At the date of decision a person who had not made specific claims at the time of application needed to be a member of the family unit of a person who had made claims and had been granted a protection visa. However, there is no prohibition on such a person also making specific claims after the application, up to and including the date of final determination by the Tribunal.
Further, the applicants contend that the invitation letter of 3 July 2000 only invited the first applicant to attend. It told her to tell the other applicants about the letter, that is about her invitation to attend, and did not represent an invitation to the others:
(12)Whether the Tribunal's letter of 3 July 2000 amounted to an “invitation” to the second and third applicants or not, the fact that they were not questioned by the Tribunal or asked if they had anything to say meant that any such invitation to them was no more than a “hollow shell or empty gesture”.
(13)Failure to comply with s 425 is a procedural failure which goes to the jurisdiction of the Tribunal to make a determination in the case before it. … It is not a requirement therefore that the applicants here show precisely what detriment they have suffered or what evidence would have been given by the second and third applicants.
The respondent’s submissions
On 18 August 2004 the respondent filed a Notice of Objection to Competency. That Notice contended that the decision under review was a privative clause decision and the application to the Court had not been lodged within the 28 days of receiving that decision as required by the relevant provisions of the Act.
The respondent submits that the contention that the Tribunal failed to comply with s 425 of the Act because it failed to invite the second and third applicants to give evidence and present argument could not be sustained. This was because the Tribunal's invitation to attend a hearing extended to each of the applicants. It is contended that this is apparent from the history of the proceedings before the Tribunal.
(8)The application for a review was lodged with the tribunal on 8 June 1999. The application identified the applicant as the contact person for each of the applicants and included an undertaking by the applicant to inform the second and third applicants of the contents of any communication from the tribunal and, if necessary, reply on their behalf.
(9)In support of the application for review by the tribunal the applicant provided a statement. The statement addressed the primary decision and, consistently with the initial applications for protection visas, did not raise any specific Convention claims on behalf of the second or third applicants.
(10)On 9 June 1999 the tribunal wrote to the applicant at the nominated address for service. The heading to the letter referred to each of the applicants and confirmed, in bold text:
“Please note that you must tell all persons named above about this letter and, if they wish, reply to the Tribunal for them”
(11)The letter of 9 June 1999 went on to advise that if the tribunal could not make a favourable decision on the papers, alone it would invite “you” to a hearing. In the context of the application for review which nominated the applicant as the contact person for each of the applicants, and the opening instruction in bold text on the letter of
9 June 1999, this reference to "you" clearly referred to each of the applicants.
(12)On 3 July 2000 the tribunal sent a further letter to the applicant at the nominated address for service. The heading of the letter referred to each of the applicants. Once again, the letter included the following instruction:
“Please note that you must tell all persons named above about this letter and, if they wish, reply to the tribunal for them”
(13)In this way, the letter of 3 July 2000 invited each of the applicants to attend the hearing, scheduled for 14 August 2000, in accordance with ss425 and 425A of the Act. The letter enclosed a “Response to Hearing Invitation” form and notified the applicants:
"If you want the tribunal to take oral evidence from another person or persons, you must complete the ‘witness’ details on the enclosed form and return it by 17 July 2000.”
(14)A “Response to Hearing Invitation” form was lodged with the tribunal by the applicant on 14 July 2000. The form confirmed that the applicant wanted to attend a hearing but declined the invitation to nominate witnesses from whom the applicant wanted the tribunal to take evidence. The form included the following question:
“If your application includes other family members, do you want a separate hearing?”
(15)The applicant ticked the box indicating that she did not want a separate hearing.
(16)The “Response to Hearing Invitation” form also stated that each person over the age of eighteen must complete a separate form. Despite that instruction, no form was submitted on behalf of the second applicant and the applicant made no response on behalf of the third applicant.
(17)On 14 August 2000 the applicant participated in the scheduled hearing before the tribunal. Although the applicant had undertaken to act as the contact person, and deal with the tribunal on behalf of the second and third applicants, she made no request for the tribunal to take evidence or hear separate argument from the second or third applicants. This is not surprising, given that it was only the applicant who made specific claims for protection under the Convention.
(18)In light of this history of the proceedings before the tribunal, there is no substance in the contention that the tribunal failed to invite the second and third applicants to attend a hearing. The invitation was extended to each of the applicants in accordance with ss425 and 425A of the Act.
Consideration
Section 425 (1) relevantly provides:
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.
Section 425A concerns the notice of invitation and section 441A concerns the methods by which the Tribunal gives documents to a person.
Section 425 requires the Tribunal to invite the applicant. I accept that that invitation must be extended to each applicant, in this case each of the three in the current matter not just the applicant wife. The statutory obligation is more limited, however, than it was in the old section 425 prior to the 1998 amending Act (see Xiao v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 129).
In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at 560-561 the Full Court of the Federal Court said:
(33)Pursuant to s 425 of the Act the tribunal was under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture (Mazhar v Minister for Immigration (2000) 64 ALD 395).
…
(35)Section 425 is not a code setting out all of the requirements for a fair hearing by the Tribunal. For example, s 425 is directed to the invitation rather than the hearing itself. … But what is clear is that Parliament has made compliance with s 425 of the Act a necessary condition and element of a fair hearing by the Tribunal.
…
(37)On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a “real and meaningful” invitation exists.
Therefore section 425 is directed at the “invitation”. The invitation itself must not be a hollow shell or an empty gesture. Section 425 is not a code for a fair hearing, but the invitation must be real and meaningful.
Was there an invitation?
Whether there was an invitation requires an examination of the evidence before me including the Court Book. Initially, there were three combined applications to the Department for a wife, husband and daughter, with the wife as the first applicant and the only person making claims. I refer to Part B, C and D of their application. There were two Part D applications covering both the second and third applicants.
This combination of applicants is allowed Item 1126(3)(c) of Schedule 1 of the Migration Regulations 1994 (and by reg 4.31A for applications to the Tribunal). The primary decision and the letter that followed this application were directed to the wife and included the decision for the husband and the child.
The application to the Tribunal was lodged on 8 June 1999. Section A of the application form contains the following words under the heading:
Details of persons included in this application.
Any persons included in the decision made by the Department of Immigration and Multicultural Affairs maybe included in this application. All applicants must be in Australia on the date the decision was made and on the date the Tribunal receives this Application.
If this application includes more than one person, each person is an applicant in his or her own right. Applicants must nominate one applicant whom they authorise the Tribunal to contact about this application (“the contact person”). The Tribunal will communicate with the contact person about this application unless requested otherwise. The contact person must inform each applicant of the contents of any communication from the Tribunal and, if they wish, reply to the Tribunal for them.
In section E of the application to the Tribunal immediately above the signature of the applicant wife are the following words:
If this application includes more than one applicant:
· I undertake to inform each other applicant of the contents of any communication from the Tribunal and, if necessary reply to the Tribunal for them.
There follows the signature of the applicant wife and the date.
Below that and above the signature of the applicant husband are these words:
If this application includes more than one applicant:
I declare that:
…
· I authorise the Tribunal to communicate with the contact person (Applicant 1) about this application.
then appears the signature of the applicant husband and the date. There is no signature or date for the applicant child.
On 9 June 1999 the Tribunal sent a letter addressed, for correspondence purposes, to the applicant wife. The heading of the letter was:
RE APPLICATION FOR REVIEW OF DECISION TO REFUSE PROTECTION VISA (REFUGEE STATUS) – [names of applicants]
Please note that you must tell all persons named above about this letter and, if they wish, reply to the Tribunal for them.
…
If the Tribunal cannot make a decision in your favour, you will be asked whether you want to come to a hearing of the Tribunal to give oral evidence and to present arguments.
On 3 July 2000 the Tribunal sent a letter which the respondent contends is the invitation to the hearing. The letter is addressed to the applicant wife:
RE APPLICATION FOR REVIEW OF DECISION REFUSED FOR PROTECTION VISA (REFUGEE STATUS) – [names of applicants and another name included by accident]
Please note that you must tell all persons named above about this letter and, if they wish, reply to the Tribunal for them.
The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons.
[specifics of the hearing]
Please tell the Tribunal whether or not you want to come to the hearing by completing the enclosed “Response to Hearing Invitation” form and returning it to the Tribunal by 17 July 2000. This will help the Tribunal plan for your hearing and give us time to book an interpreter if required.
If you want the Tribunal to take oral evidence from another person or persons, you must complete the “witness” details on the enclosed form and return it by 17 July 2000. The Tribunal will consider your wishes but it does not have to take evidence from any witness you name.
The Response to the Hearing Invitation notes that each person over the age of 18 must complete a separate form. It is filled out in the name of the applicant wife and below the question, “Do you want to come to a hearing? Please tick box 1 or box 2”, the “Yes” box is ticked. It goes on “If your application includes other family members do you want a separate hearing?” And the “No” box is ticked. It is signed by the applicant wife and dated 14 July 2000. I note that there was only one such Response to Hearing Invitation form submitted.
In my view, taken as a whole, it is clear that all the correspondence relates to the three applicants, not just the applicant wife. In particular, the letter of 3 July 2000 constitutes an invitation to the three applicants to appear before the Tribunal. Although addressed for correspondence purposes to the applicant wife, it refers to each applicant. It requires each to be told of the contents. It was sent in the context of the one application form being lodged with the Tribunal covering three applicants. The only other adult applicant had specifically agreed that communications about his application to the Tribunal would be with his wife. His wife had undertaken to inform the others of any communication from the Tribunal. She had responded on behalf of the other applicants.
Indeed, from the very beginning the three had been treated together. There is also no evidence that the wife hid the letter from the other applicants or misled them over its contents. Although in my view there may very well be scope for improvement in the wording in the standard form of correspondence from the Tribunal, it is clear that the letter of
3 July 2000 was an invitation to appear before the Tribunal. It was an invitation to each of the three applicants. That invitation was not a hollow shell or an empty gesture. It was real and meaningful. Indeed, the applicant wife attended and participated in the hearing on
14 August 2000.
I find accordingly. It would be overly technical in the circumstances of this case to accept the applicant's contentions.
There is indirect support for this in the decision of Hely J in Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 140 at [3]:
On 15 January 2002 the RRT wrote to the husband inviting him to come to a hearing of the RRT on 8 February 2002. The letter advised that the husband must tell “all persons named above about this letter and if they wish to reply to the Tribunal for them”. The “persons named above” were the husband, the wife and the child. No point was taken by counsel for the appellants in relation to this notification. Counsel accepted that the letter was an invitation to each of the appellants to attend a hearing of the RRT as required by s 425 of the Migration Act 1958 (Cth).
Justice Hely then considered an alternative ground. However, he still found no contravention of s 425 after initially referring to the argument about the invitation that has been put before the Court in this case.
Conclusions
I conclude that there was an invitation under s.425 to each of the applicants.
No jurisdictional error has been found in the Tribunal's decision. It is therefore a privative clause decision. The application is incompetent having been made well outside the 28 days time limit provided for in s.477(1A).
The objection to competency is upheld and the application is dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 4 November 2004
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