SZDUY v Minister for Immigration
[2006] FMCA 493
•10 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDUY v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 493 |
| MIGRATION – Application for review of a decision of the Refugee Review Tribunal – invitation sent to applicant and adviser – no response received – obligations under s.425 of the Migration Act – “real and meaningful” invitation – obligations at common law – exclusion of common law procedural fairness – inaction of applicant’s adviser – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.422B, 425, 425A, 426A, 441A |
| SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 SZAXF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1464 NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | SZDUY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1792 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing date: | 11 April 2005 |
| Heard at: | Sydney |
| Delivered at: | Canberra |
| Delivered on: | 10 April 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr K Ginges |
| Solicitors for the Applicant: | Ward Maxwell & Co |
| Counsel for the First Respondent: | Mr R Beech-Jones |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Refugee Review Tribunal be joined as a party to these proceedings.
The application be dismissed.
The applicant pay the first respondent’s costs and disbursements fixed in the sum of $4,750.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1792 of 2004
| SZDUY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Refugee Review Tribunal made on 22 April 2004 and handed down on 18 May 2004 affirming a decision of a delegate of the first respondent not to grant to the applicant a protection visa.
Consistent with SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, I join the Tribunal as a party to these proceedings. Any reference to the respondent in these reasons is to the Minister, the first respondent.
Background
The applicant is a citizen of Indian. He is a Sikh. He arrived in Australia on 1 September 2003. On 26 September 2003 he applied for a protection visa. On 28 November 2003 a delegate of the respondent refused the application and on 23 December 2003 the applicant sought review of that decision in the Tribunal. The Tribunal affirmed the delegate’s decision and on 10 June 2004 the applicant sought judicial review.
Claims before the Department and Tribunal
The applicant claimed that he lived in the Nawanshehar District of the Punjab State. By occupation he was an agriculturalist. He became a member of the All India Sikh Students Federation when he was a student at college. He was an active member participating at both district and state level.
In December 2001 there was a demonstration organised by the All India Sikh Students Federation and the Punjab Human Rights Commission protesting against the repression of Sikhs in India and the distribution of anti-Sikh literature by Rashtrya Swayam Sewak Sangh (RSS) which operates as a cadre of the BJP Party in India. The applicant claimed that he played a major role in that protest and gave a speech in which he exposed “the evil designs of BJP to convert Sikhs into Hindus”.
The applicant claimed that he then started receiving threats not only from the RSS and BJB but also the ruling Akali government ministers. He was picked up by Punjabi police officials and taken to an undisclosed location where he was tortured and asked to abandon his attacks on the RSS and BJP. He was released after seven days.
He went to Pilibhit in Uttar Pradesh but police started to look at his records and suspected him of being a terrorist. He left Pilibhit and went to Madhya Pradesh. He was then picked up by police and framed in false cases. He paid large bribes and got out of the clutches of the police.
He stated that due to his activities he became the target of central and state intelligence authorities and the ruling parties in India and the Punjab. He claimed that he was afraid to live in India as a Sikh. He faced “prosecution and torture”. He therefore obtained a temporary business visa for Australia and left India.
Tribunal consideration
On 3 March 2004 the Tribunal wrote to the applicant at his authorised recipient’s address and also to the applicant’s residential address as nominated on his application . The letters were sent by registered post. They requested additional information from the applicant in writing. They also indicated that if the applicant had any difficulty in obtaining this information he should contact an officer of the Tribunal.
No written response was received and no one contacted the Tribunal officer.
On 12 March 2004 the Tribunal wrote to the applicant’s authorised recipient and to the applicant’s residential address by registered mail advising that the Tribunal had considered all the material before it.
It was unable to make a favourable decision on that information alone. The letter invited the applicant to attend a Tribunal hearing to give oral evidence and present arguments on 16 April 2004. The letter also informed the applicant that if he failed to attend the hearing and a postponement was not granted the Tribunal may proceed to make a decision without further notice. The Tribunal noted that no response was received and the letters were not returned to sender.
Accordingly, as the applicant did not appear before the Tribunal at the date for hearing the Tribunal decided under s.426A of the Act that it should proceed to make a decision on the review without taking any further action to enable the applicant to appear before it.
At page 68 of the Court Book the Tribunal said:
As the applicant did not attend an oral hearing, his claims could not be tested by the Tribunal. I have only the information contained in the written material before me from which to make a
determination.
There is nothing to support these claims other than his unsubstantiated assertions. There are insufficient particulars provided by the applicant to enable me to be satisfied that he has been involved in the activities which he has claimed.
Further, because the applicant did not attend the hearing I was unable to test his credibility.
Accordingly, I am unable to be satisfied from the evidence before me that the applicant faces a real chance of persecution should he return to India now or in the foreseeable future.
Consideration
The applicant relies on his amended application filed on 25 January 2005. In oral submissions Mr Ginges for the applicant asserted that the Tribunal either failed to accord the applicant procedural fairness at common law or breached its obligations under s.425 of the Act. This amounted to jurisdictional error.
In his written submissions the applicant argued that where
·there were no records or evidence to demonstrate that he received the invitations
·the Tribunal had his telephone contact details but did not attempt to contact him
·it was open to the Tribunal to verify receipt of the invitations but it failed to do so
the Tribunal had failed to comply with its obligations under s.425. Alternatively, if these matters did not fall within s.425, the Tribunal had not accorded the applicant procedural fairness at common law.
In essence the applicant is saying that an invitation to attend a hearing is more than merely sending out a letter of invitation and asking a person to attend a hearing. Where the Tribunal receives no response it is obliged to follow up the invitation. Otherwise the invitation is hollow.
The applicant deposed that he had not received the letters of 3 March 2004 and 12 March 2004. I stopped cross-examination of the applicant when it became clear that he was having difficulty understanding the questions. Despite having notice that the applicant was required for cross-examination, his legal representatives did not take the elementary step of obtaining an interpreter for the hearing. I am not satisfied that the applicant understood what was in his affidavit, nor that it was translated to him by an accredited interpreter. I will assume for present purposes that the applicant did not personally receive the two letters, although I am far from satisfied with the evidence I had on this.
There is no evidence before the Court to suggest that the Tribunal was aware that the applicant had or might not have received the letters.
The applicant has not adduced any evidence on whether the authorised recipient received the letters.
I am satisfied and find that the Tribunal did dispatch the two letters by registered post to both the applicant and his authorised recipient, the request for further information on 3 March 2004 and the invitation to a hearing on 12 March 2004. They were also sent to the last addresses provided to the Tribunal by the applicant. I make these findings on the basis of the material in the Court Book at pages 48, 50, 54-55 and 56-57, and the affidavit and oral evidence of Ms Kristy Alexander, solicitor for the respondent.
Section 425 invitation
Section 425 of the Act relevantly provides:
(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.
Section 425 was considered by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33]-[38]:
Pursuant to s 425 of the Act the Tribunal is 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 and Multicultural Affairs (2000) 64 ALD 395.
…
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 - this suggests that some of the entitlements which might normally fall within the usual or common law conception of procedural fairness, such as a duty (if any) to give reasons, are not encompassed by s 425. This does not mean that there is no such obligation - only that the obligation (if it exists) must be found elsewhere in the Act or in the common law. But what is clear is that the Parliament has made compliance with s 425 of the Act a necessary condition and element of a fair hearing by the Tribunal.
…
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 whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: NAHF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 100. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 322; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.
It is clear from its terms that compliance with s 425 of the Act is a precondition to the valid exercise of the Tribunal's jurisdiction. Failure of the Tribunal to comply with the requirements of s 425 of the Act involves a “jurisdictional error”.
The question then is whether the invitation sent by the Tribunal on
12 March 2004 complied with s.425. Was it “real and meaningful” and not “a hollow shell or an empty gesture”.
I reject the applicant’s contention that the invitation failed to meet the test:
·invitations were sent by prepaid post to both the applicant and his authorised recipient at their last addresses provided to the Tribunal
·the invitations were issued in accordance with s.425A
·they were sent by one of the methods specified in s.441A
·the applicant had not contacted the Tribunal to give any new addresses
·the addresses were the same as those to which advice on the handing down of the Tribunal’s decision and a copy of the decision were later sent (Court Book pages 58-60)
·there is no evidence that the applicant’s authorised recipient did not receive the invitation
·the invitations were not returned to the Tribunal as undeliverable
·the applicant had been advised that he would be invited to a hearing if the Tribunal could not make a decision in his favour (Court Book page 52). There is no evidence that he contacted the Tribunal to check when that hearing would be
·there is no evidence that the Tribunal was aware that the applicant had not received the invitation.
I find that the invitation extended by the Tribunal was “real and meaningful” and in accordance with s.425. I agree with the respondent that the passage from SCAR does not assist the applicant:
Although SCAR does state that there may be circumstances affecting the review applicant’s opportunity to appear before the RRT which do not have to be known to the RRT this does not extend to every circumstance in which a person claims they did not receive notification of the hearing.
In particular I do not accept Mr Ginges’ contention that whenever the Tribunal does not follow up a failure by an applicant to respond to an invitation to a hearing this renders the invitation hollow. In the words of Mr Beech-Jones for the respondent:
…there simply is no obligation of procedural fairness to hunt down an applicant at some different address or to send out active inquiries where what you’ve done is followed a statutory procedure and have absolutely no indication that the letter hasn’t been received.
This is particularly the case where the Act sets out in detail the procedural requirements on the Tribunal in sections such as ss.425A and 441A. Furthermore any such obligation would appear to be inconsistent with and cast doubt on the usefulness of s.426A .
There has been no breach of s.425.
Procedural fairness at common law
The applicant also contends that for similar reasons there has been a breach of common law procedural fairness.
The effect of s.422B is to exclude the requirements of procedural fairness in relation to the matters dealt with in Division 4 of Part 7 of the Act. In my view ss.425 and 425A deal precisely with the matters in issue in this case. Common law procedural fairness therefore has no application.
If I am wrong, I agree with Stone J in SZAXF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1464 at [28]:
Inability to contact an applicant by sending a registered letter to the only address provided by the applicant cannot, in the absence of any knowledge that the letter has not reached the applicant, be a denial of procedural fairness.
Inaction of applicant’s adviser
Finally I note again that the applicant’s authorised recipient was also advised of the hearing and apparently took no action. The Tribunal can not be held responsible for that. As the Full Court said in NALQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 121 at [37] it is not for the Court to allocate responsibility for whatever may have happened between persons such as the applicant and his adviser.
Conclusions
The applicant contends that the Tribunal committed jurisdictional error by breaching s.425 or alternatively the requirements of procedural fairness at common law. I have rejected both.
Having invited the applicant to a hearing in accordance with s.425 and the applicant having failed to attend, the Tribunal was entitled under s.426A to proceed to make a decision without taking further action to enable the applicant to appear before it.
On the material before it the Tribunal was perfectly entitled to conclude that it could not be satisfied that the applicant has a well-founded fear of persecution for a Convention reason.
I am not persuaded that the Tribunal made any legal error going to jurisdiction in coming to its decision. I find that the decision of the Tribunal is a privative clause decision having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
In addition, the decision of the Tribunal was a bona fide attempt to exercise its powers. It clearly related to the subject matter of the Act and to the powers conferred on the Tribunal.
The application must be dismissed.
I certify that the preceding thirty-seven paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Natasha Werner
Date: 10 April 2006
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