SZEGU v Minister for Immigration

[2005] FMCA 1023

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEGU v MINISTER FOR IMMIGRATION [2005] FMCA 1023

MIGRATION – Refugee – persecution for Convention reason of religion – invitation to appear at a Tribunal hearing – change in time and failure to appear – statutory prescribed period of notice – failure to adhere to statutory requirements – jurisdictional error – remitted back to the Refugee Review Tribunal for reconsideration.

Migration Act 1958, ss.477(1A), 477(2), 474, 91(1)(a), 425, 424B, 424C(1), 424C(2), 65, 441G

Migration Regulations 1994,  r.4.35D

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Applicant: SZEGU

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2640 of 2004

Judgment of: Nicholls FM

Hearing date: 22 February 2005

Date of Last Submission: 15 February 2005

Delivered at: Sydney

Delivered on: 4 August 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr. J. Bird

Solicitors for the Respondent: Phillips Fox

ORDERS

1. A writ of certiorari be issued quashing the decision of the Refugee Review Tribunal made on 30 June 2004.

2. The matter be remitted to the Refugee Review Tribunal, differently constituted, to redetermine the review application according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2640 of 2004

SZEGU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 23 August 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 June 2004 and handed down on 22 July 2004 to affirm the decision of a delegate of the respondent Minister made on
   30 April 2004 to refuse a protection visa to the applicant.

2. The applicant is a citizen of the peoples Republic of China who first arrived in Australia on 27 February 2003, made a short trip to New Zealand, re-entered Australia and subsequently departed for China. The applicant appears to have re-entered Australia on 22 March 2003. On 28 March 2003 the applicant lodged an application for a protection visa with the respondent's Department. On 10 June 2003 a delegate of the respondent Minister refused to grant a protection visa to the applicant and on 1 July 2003 the applicant applied for review of that decision. 

3. The applicant claimed to be a Falun Gong practitioner in China and he claimed to have started this practice for health reasons. Following persecution in China of Falun Gong practitioners he began to practice at home secretly. He further claimed that after visits to Australia and New Zealand he collected and took back to China publications regarding Falun Gong and following distribution of these publications to fellow practitioners, he was exposed “to authority". He claims to have been subjected to searches and interrogated by the Public Security Organisation. He claimed this was the reason that he subsequently fled to Australia.

4. I also have before me a Notice of Objection to Competency filed by the respondent on 14 September 2004 which is supported by the affidavit of John Bird sworn on 14 September 2004. The respondent asserts that as the decision was handed down on 22 July 2004 and the application was not filed within the 28 days of the decision as required by s.477(1A) of the Migration Act that the court lacks jurisdiction to try this application. In relation to this notice it is clear that an appeal against a privitive clause decision lodged outside the time limits in s.477 of the Migration Act is incompetent unless a ground of review can be made out. In determining whether the Tribunal made jurisdictional error, regard must be had to s.474 for the Migration Act in the way described by the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2. If the Tribunal's decision in the case before me is a privitive clause decision pursuant to s.474 of the Act then the time limit provided in s.477(1A) would apply and, pursuant to s.477(2) of the Act, the Federal Magistrates Court cannot make orders which have the effect of allowing the lodging of an application outside the time limit. The issue therefore, on whether or not the respondent’s Notice of Objection to Competency should be upheld, turns upon whether the decision complained of is a privative clause decision.

5. In his application to this Court the applicant asserts two grounds:

   1)“The Tribunal found (at p12) that the claims put forward by the applicant does not establish the genuineness and a well-founded fear for the persecution they fear as required by s.91(1)(a) of the Migration Act. The Tribunal fell into jurisdictional error in making this finding.

   2)The Tribunal changed the hearing time without timely notifying the applicant, making the applicant unable to attend the hearing. The applicant was not given a fair procedure and natural justice as required by Section 425(1) of the Migration Act 1958. The Tribunal erred in law in this respect.”

6. By way of amended application filed on 17 November 2004 the applicant does not appear to allege any specific ground of review but makes the general assertion that the Tribunal's decision was unfair, that the decision should be made on a fair basis, and that the Tribunal should take all matters into consideration and to give the applicant a favourable decision.

7. The applicant was unrepresented at the hearing before me, but I note that the applicant had been referred to a lawyer on the panel of the Court's Legal Advice Scheme. The applicant was assisted by an interpreter in the Mandarin language. At the hearing the applicant made four complaints about the Tribunal's decision :

   1)That the Tribunal's decision was unfair.

   2)That the applicant was not given an opportunity to attend a hearing before the Tribunal.

   3)That the applicant was asked to provide more information by the Tribunal and that difficulties with his migration adviser meant that this may not have been communicated to the Tribunal.

   4)That the Tribunal did not take into consideration what the applicant would face on return to China.

8. The applicant's first complaint is that the Tribunal's decision was unfair. Apart from a complaint about the opportunity to attend the hearing before the Tribunal, which I will deal with below, the applicant was unable to add anything further to this complaint other than that he felt it was unfair that he was not believed because he did have a well founded fear of being persecuted if he were to return to China. I did not understand the applicant to be asserting bias, or the apprehension of bias or bad faith on the part of the Tribunal, but even if that was what the applicant was seeking to infer, there is nothing in the material before me to make out any of the elements necessary under each of these. 

9. The applicant’s second complaint, which was also made in his original application to the Court, was that he was denied an opportunity to attend a hearing before the Tribunal because the Tribunal changed the time of the hearing without notifying the applicant. The applicant applied for review with the Tribunal on 1 July 2003. The application is reproduced at Court Book 48 to CB 51. Section C of the application form, reproduced at CB 49, provides the opportunity for the applicant to nominate someone to receive correspondence and to act on the applicant's behalf, that is, the applicant could nominate an authorised recipient. The applicant indicated that he wished to nominate an authorised recipient and nominated “Mr. Mark Sutherland” of “Shine Migration Services Pty Ltd”. The application form also provides notice that notwithstanding the fact that all correspondence about the application would be sent to the authorised recipient, copies of documents would also be sent to the applicant's mailing address. The applicant appears to have signed the application form at CB 51 and the applicant does not now assert that Mr. Sutherland had not been nominated as his authorised recipient.

10. On 23 December 2003 the Tribunal wrote to the applicant advising him that, on the material before it, it was unable to make a decision in his favour. The Tribunal invited the applicant to come to a hearing before the Tribunal to give oral evidence and present arguments in support of his claims. It provided a time and date (10 a.m. Tuesday 6 April 2004), and a place at which the hearing was to be conducted. The letter also enclosed a “Response to Hearing Invitation” form with directions that the form should be completed and returned to the Tribunal with any other documents or written arguments that the applicant wished to submit by 14 January 2004. The letter was sent to the applicant's authorised recipient, with a copy also sent to the applicant's home address. This home address corresponds with the home and mailing address provided by the applicant in his application for review to the Tribunal (CB 48). The copy of this letter at CB 54 bears a subsequent Tribunal date stamp showing that at least one copy of this letter was sent back and received by the Tribunal on 31 December 2003. This appears to coincide with the date stamp on the envelope reproduced at CB 56. It is reasonable to infer that the copy of the letter sent to the applicant himself was returned to the Tribunal with the notation that the recipient had left the address.

11. In any event, on 24 February 2004, the Tribunal again wrote to the applicant requesting that he provide certain specified additional information (a copy of this letter is reproduced at CB 57 to CB 58). The letter was again sent to the applicant's authorised recipient, with a copy sent to the applicant's home address even though an earlier letter to that address appears to have been returned with the notation “left address”. There is nothing on the file however to indicate that up to this point the applicant or his adviser notified the Tribunal of any change of address. The applicant's adviser responded to the Tribunal by letter dated 18 March 2004 (CB 59), referring to the Tribunal's letter of 24 February 2004 and advising that the applicant had read the letter with the aid of a colleague fluent in English and Mandarin and was seeking a Mandarin interpreter to finalise his response to the Tribunal's letter. The adviser also provided the applicant's current residential address. From the notations at the top of this letter it appears that this was sent to the Tribunal by facsimile transmission and was received and date stamped by the Tribunal on 18 March 2004. The applicant's adviser again wrote to the Tribunal on 23 March 2004 referring to his earlier facsimile of 18 March 2004 and advising that the postcode provided for the applicant's new address was wrong and provided the new postcode number. The letter also advised that the applicant intended to attend a hearing before the Tribunal and that he would require the assistance of a Mandarin interpreter. The letter also advised that a statement had been prepared by the applicant in response to the matters raised by the Tribunal in its letter of 24 February 2004 and that the applicant was still arranging for an English translation of his statement. This letter is copied at CB 62. In another letter dated 23 March 2004, delivered to the Tribunal by hand (CB 63), the applicant's adviser sent the applicant's response to the Tribunal's letter of 24 February 2004 and made reference to the fact that it was pursuant to s424B of the Migration Act. The letter also enclosed a completed “Response to Hearing Invitation” form (CB 64 to CB 65) confirming that the applicant would attend the hearing as had been previously scheduled for Tuesday 6 April 2004 at 10 a.m. The applicant's statement and English translation is out of sequence in the Court Book and is copied at CB 60 and CB 61.

12. At CB 66 and CB 67 there is a copy of another letter from the applicant's adviser to the Tribunal dated 24 March 2004 and date stamped as being received by the Tribunal on that same date. It appears that there may have been some communication between the Tribunal, or an officer of the Tribunal, and the applicant's adviser. This is suggested by a reference in the adviser's letter to a brief telephone conversation of 23 March 2004 and may also be explained in the reference to a telephone call in the “Case Notes” at CB 93.6. The letter asserts that the applicant has provided a further statement in response to the Tribunal's letter of 24th February 2004 and has therefore replied to the Tribunal's letter pursuant to s.424B(2) of the Act. The adviser argued that as the applicant had responded within the prescribed period, that ss.424C(1) and (2) do not apply to the applicant and that the Tribunal was bound by s.425 of the Act to either decide the matter in this applicant's favour or provide the applicant with the opportunity of a hearing which he had requested, to provide oral evidence of his claims. The adviser noted that the Tribunal had already invited the applicant to attend a hearing scheduled on Tuesday 6 April 2004 and that that invitation had presumably been issued in accordance with s.425 of the Act and that the offer of the hearing had been accepted by the applicant. The adviser argued that it was not proper for the Tribunal to invite the applicant to a hearing in accordance with s.425 of the Act and then to advise that the hearing would no longer take place because the Tribunal was not satisfied with comments that the applicant had made in writing in response to its letter sent pursuant to s.424 of the Act. The adviser concluded by asking the Tribunal to advise which particular power of the Act it had used to withdraw the invitation pursuant to s.425. There does not appear to have been any specific response by the Tribunal. However at CB 68 there is reproduced a facsimile transmission dated 26 March 2004 advising that the time for the hearing had been changed from 10 a.m. to 2 p.m. This facsimile transmission was sent to the applicant's adviser. The Tribunal also sent a letter by registered post to the adviser, and to the applicant at his most recently advised home address. The letter also advises the change of hearing time, confirming that the date and place remained the same. The copy of this letter at CB 69 also bears the registered post numbers for the two copies of the letter, and although at CB 70 there appears to be a reproduction of an envelope with a “Return to Sender as Unclaimed” stamp on it, the registered post label number does not correspond with either of the two registered post numbers appearing on the copy of the letter reproduced at CB 69. It is not clear as to what item of correspondence this envelope refers to and contained. Furthermore, Mr. Bird, who appeared for responded Minister, was unable able to provide any conclusive advice as to what piece of correspondence the reproduction at CB 70 referred to.

13. The Tribunal's account of the events and correspondence referred to above is variously set out in its decision record under the heading “Claims and Evidence” at CB 81 to CB 83. The Tribunal's account factually corresponds with what is set out above. However, I should note the following:

    1)The Tribunal appears, at CB 82.5, to have confused the dates by which it sought the applicant to responded to the “Response to a Hearing Invitation” letter and to the request for information pursuant to s.424. The Tribunal makes a reference at CB 82.8 to the following:

    "The Act provides that the Tribunal must invite an applicant to appear before it to give evidence and present arguments (s.425(1)). However, this does not apply where an applicant is invited under s.424 to give additional information and does not give the information before the time for giving it has passed. In those circumstances, the applicant is not entitled to appear before the Tribunal (ss.424C(1), 425(2)2(c), 425(3)).”

    It is clear however, that if the implication in the Tribunal's comments is that the applicant did not give the information within the time provided, then this is a factual error on the part of the Tribunal. The s.424 letter at CB 58 clearly states that the time to provide the information is by 29 March 2004, and the notice that the hearing may be cancelled is given in the event that the information is not provided by that date. Clearly the Tribunal received the applicant's response well before that date, on
    23 March 2004. It appears that the Tribunal took the view as stated at CB 82.4 that it did not consider that the reply was responsive to the questions contained in the s.424 letter and that this was advised to the applicant's adviser by telephone. In the circumstances the applicant did attempt to respond to the Tribunal’s questions, perhaps poorly and not fully, but a preferable course for the Tribunal would have been to have dealt with this as a matter going to weight or satisfaction in reaching its decision, rather than contemplating using it for the reason for failing to proceed with a hearing, which had been offered and accepted. 

    2)Whatever the view of the Tribunal, it is clear nonetheless that it did not cancel the hearing date, as it notes at CB 82.9, and proceeded to provide details confirming the new hearing time.

14. The critical issue therefore is whether the Tribunal was entitled to proceed to a decision, following the failure of the applicant to appear at 2 p.m. on the date of the hearing, pursuant to s.426A of the Act and to make its decision without taking any further action to enable the applicant to appear before it. At the hearing before me the applicant asserted that the Tribunal changed the time for the hearing and did not inform him, that he went to the hearing at the time that had been given to him but because of his language difficulties was not able to explain, and then eventually left the Tribunal without attending any hearing. He further asserted that the letter advising of the change of time was not received by him until after the hearing date and that he did not receive any information advising of the change of time from his agent. All of this was presented by way of assertion from the Bar table. The applicant who has had the opportunity to access the Court’s Legal Advice Scheme has not provided any evidence to support these claims. I explained this to the applicant at the hearing before me and given that he was unrepresented before me, asked him to consider whether he wished to give any evidence. The applicant gave no indication that he wished to do anything other than continue to make submissions from the Bar table.

15. The Tribunal's letter of 23 December 2003 inviting the applicant to a hearing, copied at CB 54 to CB 55, complies with s.425A of the Act in that:

    1)It provided the applicant with notice of the day, time and place at which the applicant was scheduled to appear.

    2)It was provided by one of the methods specified in s.441A of that Act in that it was sent in accordance with s.441A(4).

    3)It complied with s.425A(3).

    4)The notice contained a statement to the effect of s.426A in that the Tribunal stated that if the applicant did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision on his case without further notice.

    5)In his application to the Tribunal the applicant nominated Mr. Sutherland as his authorised recipient for all correspondence. In this regard s.441G of the Act is relevant. This nomination enabled the authorised recipient to do things on behalf of the applicant, and this included receiving documents in connection with the review. This notice was given in writing to the Tribunal and the address of Mr. Sutherland was also provided to the Tribunal by the applicant in his application to the Tribunal. Section 441G provides that the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. Further, that when the Tribunal does this, the Tribunal is taken to have given the document to the applicant, noting of course that this does not prevent the Tribunal giving the applicant a copy of the document. I note that throughout the course of this matter before the Tribunal the applicant did not provide to the Tribunal any notice pursuant to s.441G(3) to notify the Tribunal that Mr. Sutherland was no longer the authorised recipient.

1. The facsimile transmission from the Tribunal at CB 68, sent to the authorised recipient contains advice of a variation in the time of the hearing. Section 425A(1) of the Act provides that if an applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice, amongst other things, of the time that the applicant is scheduled to appear. Section 425A(3) provides that the period of notice given must be at least the prescribed period. This is 14 days as prescribed in regulation 4.35D of the Migration Regulations which specifically prescribes that for the purposes of s.425A(3) the prescribed time starts, in a case where an applicant is not a detainee, 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. To the extent that the facsimile transmission of 26 March 2004 sought to change the time of the hearing, the transmission is taken to have been received, pursuant to s.441C(5), at the end of the day on which the document is transmitted, being 26 March 2004. I note that in compliance with the requirements of s.441G the notice was sent to the existing authorised recipient for correspondence and that this is taken in these circumstances to have been given to the applicant. But the period of the notice was clearly not 14 days. The hearing was set and remained for 6 April 2004, well within the 14 day period. Mr. Bird for the respondent Minister submitted that the facsimile transmission of 26 March 2004 needs to be read as plausibly taken together with the invitation of 23 December 2003. This submission is acceptable to the extent that there may have been some complaint that the facsimile transmission on its own did not comply with the other statutory requirements relating to date, place and a statement to the effect of s.426A of the Act. In that context, it is clear that a mere notification of a change in time would not negate or override any of the other matters which were noted in the invitation of 23 December 2003 and which clearly would continue to have force and effect. But, it clearly remains that s.425A of the Act provides that the Tribunal must give the applicant notice, inter alia, of the time of the hearing, and that taken with the relevant Regulation the period of the notice must be at least 14 days. I do not accept the submission that the two pieces of correspondence can be reasonably taken together for the purposes of s.425A(3). The Regulations have clearly prescribed a period of at least 14 days for the giving of the notice. The applicant could not in any way be said to have known on receipt of the letter of 23 December 2003, that the hearing time was 2 p.m. The applicant cannot be said to have known of the change to 2 p.m. until the end of 26 March 2004. It is a mandatory statutory requirement that the Tribunal must give the applicant notice of the time of the hearing, and it is a clearly prescribed notice of 14 days. The importance of this can also be seen in the context of where an applicant indicates clearly that he wants to come to a hearing and the desire to attend is conveyed and confirmed in circumstances where the Tribunal is contemplating withdrawing the offer of a hearing. In any event, the Tribunal’s failure in this regard is an error going to jurisdiction and on this basis the Tribunal's decision is quashed, and the matter must be remitted to the Tribunal for reconsideration.

2. For the sake of completeness and for the benefit of an unrepresented applicant before me, I should note that the applicant's third complaint, which relates to the issue of his having been asked to provide more information by the Tribunal, clearly amounted to a complaint on his part about his migration agent. His explanation as to why the Tribunal felt that it did not have sufficient information to make a favourable decision was that it was the fault of the agent because he had provided this information to the agent. I note in this context that the applicant provided no evidence whatsoever to support this assertion and in any event, any alleged fault on the part of the agent to properly advise or assist the applicant, is not an error on the part of the Tribunal. Although in this regard I do note, that I had some concern with the Tribunal's apparent initial response to the applicant's answers to its s.424 letter. If the Tribunal felt that the answers were not responsive to its questions this should have been a matter to have been dealt with by the Tribunal as to the weight that it may have given to the various matters asserted by the applicant in his response in the context of whether the Tribunal could reach the requisite level of satisfaction pursuant to s.65 of the Act. It should not in my view, having formed this basis, particularly in the context of already having invited the applicant to a hearing, cancelled the hearing. In any event however, the Tribunal did not cancel the hearing date.

3. The applicant's fourth complaint is that that the Tribunal did not believe the claims that he had made in writing. In the absence of anything further from the applicant I could not see that this complaint could be of any assistance to him. The Tribunal was entitled to take the view that it did in this regard.

4. In any event, the Tribunal did not comply with the requirement in the Migration Act relating to the period of notice that must be given in relation to, amongst other things, the time of the hearing before it. It is clear that the Tribunal's decision was based on what it described as the very general, and lacking in necessary detail in the application and in the lack of substance of the information before the Tribunal in supporting the application. Although it appears to have considered cancelling the hearing the Tribunal did not do that, and was clearly ready to conduct a hearing with the applicant presumably on the previously stated basis of providing the applicant with an opportunity to provide evidence and argument in support of his claim. In that regard, its failure to follow the requirements set out in the Migration Act for the giving of notice in relation to the conduct of the hearing, clearly had an impact on the applicant's capacity and opportunity to satisfy the Tribunal of those matters on which it required further argument and evidence. The respondent’s Notice of Objection to Competency is not upheld. For these reasons this application succeeds and I will make orders remitting this matter to the Tribunal for reconsideration.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Sybilla Waring-Lambert

Date:  4 August 2005