SZEZE v Minister for Immigration
[2004] FMCA 868
•8 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEZE & ANOR v MINISTER FOR IMMIGRATION | [2004] FMCA 868 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visa – natural justice – no error of law – privative clause decision – application dismissed. Migration Act 1958 (Cth) Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicants: | SZEZE & SZEZF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2349 of 2004 |
| Delivered on: | 8 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 8 November 2004 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Counsel for the Applicants: | In person |
| Solicitors for the Applicants: | In person |
| Counsel for the Respondent: | Margaret Allars |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application be dismissed.
The applicants 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 |
SYG2349 of 2004
| SZEZE & SZEZF |
Applicants
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 7 June 2004 and handed down on
29 June 2004. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. The applicants are husband and wife, but only the husband has made specific claims under the Refugees Convention 1951. The wife relies on her husband’s claims.
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. But a decision by the Tribunal, for example, made unfairly and in serious breach of the rules of natural justice is a jurisdictional error and is therefore not within the scope of protection afforded by section 474 (S157/2002 at [37]-[38], [83]).
The protection that section 474 purports to afford will also be inapplicable unless the three Hickman ((1945) 70 CLR 598) provisos are satisfied. The three Hickman provisos are that the decision is a bona fide attempt to exercise the body’s power, that it relates to the subject matter of the legislation and that it is reasonably capable of reference to the power given to the body.
Other relevant statutory provisions
The other relevant statutory provisions for the purpose of this matter are sections 36(2), 65, 422B, 424A, 425, 425A and 441A 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.
Background
The applicants arrived in Australia on 20 November 2003 and applied for protection visas on 17 December 2003.
On 20 March 2004 a delegate of the Minister refused to grant the applicants protection visas and on 17 April 2004 the applicants applied to the Tribunal for review of this decision.
The Tribunal wrote a letter to the applicants on 29 April 2004 addressed to a post office box in Mildura putting certain country information to them and asking for a response. None was received. The applicants were informed of the hearing by a letter dated 30 April 2004 addressed to the same post office box in Mildura. The letters of 29 April and 30 April 2004 were also sent to the applicants’ home address. These were returned to the Tribunal marked “Return to sender”. Copies of the two letters were sent to the applicants’ migration agent.
On 25 May 2004 the applicants’ migration agent told the Tribunal that the applicants did not want to attend the hearing and that they had changed their address. The agent provided the new address to the Tribunal on that day although the first applicant had filled out a form which he had sent to the migration agent on 13 May 2004.
On 31 May 2004 the migration agent faxed to the Tribunal the response to hearing invitation. He signed it under the heading “signed on behalf of, and with the consent of, all family members included in this application” to the effect that the applicants did not want to attend the hearing.
The hearing was held on 2 June 2004. The decision was made on
7 June 2004 and handed down by the Tribunal on 29 June 2004.
Claims before the Department and the Tribunal
The applicants’ claims are set out in the Court Book at pages 25 and 26. In summary the applicants came from India. They are Hindu and supporters of the BJP Party which the first applicant says is a Hindu backed party, whereas he claims that the Congress Party is a Muslim backed party. The applicants lived in the Gujurat province in the election ward of Dariyapur Kazipur. At that time the BJP Party was in power and building up to an election in which the first applicant claims he helped the BJP Party. For this he received threatening phone calls from Congress Party members. He moved to Andhra Pradesh to get away from the threats.
At about this time many Hindus were killed in a train accident resulting in rioting between Hindus and Muslims in the Gujurat province. The first applicant claims that members of the Congress Party thought that the accident was the fault of the BJP members so once again he received threatening phone calls. On 9 November 2003 Hindus and Muslims once again started rioting and one man was burnt alive in the election ward where the first applicant was living. A bomb also went off.
After this the first applicant received further threats. He had been seeking to obtain a visa for Australia, so when he received one he left immediately on 19 November 2003.
The first applicant provided documents to the Department to show that he was an active member of the BJP Party and he also provided newspaper articles about the violence.
The Tribunal decision
The Tribunal decision is accurately summarised in the respondent’s submissions:
The Tribunal found that:
(i)the first applicant made inconsistent claims as to whether during the period from 2001 to 2003 he lived at his usual address in Ahmedabad or whether he was in Andhra Pradesh;
(ii)the first applicant's claims were vague and he did not attend the oral hearing to provide further detail;
(iii)according to country information Indian authorities do not tolerate religious intolerance and the Congress Party consistently has promoted a secular State; and
(iv)the first applicant failed to respond to the aspects of country information on which the Tribunal invited him to comment.
In its decision the Tribunal said:
In view of the vagueness of the applicant's claims and the country information available the Tribunal does not accept that the applicant faces a real chance of persecution for reasons of his membership of the BJP or for reasons of his Hindu faith.
Accordingly the Tribunal is unable to be satisfied that the applicant has a well founded fear of persecution for any Convention related reason.
The applicant’s case
The grounds set out in the application to this Court are as follows:
(1)The Tribunal [deprived] me of the natural justice
(2)The Tribunal has given a [decision] which was preset in the back of its [mind]. The Tribunal [decision] did not reflect the material of my claims.
(3)RRT member did not take in to account the facts and independent country report supporting my claims and [persecution];
(4)An order [directing] the respondent to reconsider his exercise of the power consider by Migration Act 1958 in accordance with the findings of the Court and is [accordance] with the requirement of the [A]ct;
(5)The [decision] involve[d] an error of law being an incorrect application of the law to the facts as found by the person who made the [decision].
Ground 4 clearly relates to relief and does not provide any ground for an application.
The first applicant also provided the Court with a letter filed on
27 September 2004 which recites certain facts and then says:
Now my [claims] are:
(1)I request you to instruct RRT to further review my application For granting protection visa
(2)I further inform you that if I go back to my country I have Life Threat;
(3)I have not attended RRT Interview because of my problems (Which I described below)
(4)In India I have lots of problems so I don't want to go back so please consider my case as important to my future life.
(5)At our place there are several communal problems and I attacked several times by other communal groups so strongly I request that you please ask the RRT to issue protection visa.
I would like to explain that why I have not attended RRT interview. [First] thing for my family survival I use[d] to work at several places in NSW and Victoria. By that time I was in Mildura (VIC) for from 14 January 2004 to 30th April I left Mildura and [travelled] to Griffith, NSW. I informed my change of address after finding home in Griffith on 13th May 2004. Mean time I received phone call from my migration agent on before 25/05/2004 (I don't remember date) I did not understand what he is saying about RRT interview so I tried to contact him later but I did not got him over phone and their was confusion so I missed the interview but my intention was [to] attend the interview in misunderstanding my migration agent informed RRT that I am not interested to attend interview. The same message sends by fax to RRT. So I confused to attend interview or not, so I missed the interview. So I request you to give me one more chance to explain about my facts and problems in India and submit some evidences which I have with me. In this case really my migration agent never gave proper direction to me what I should do. So please consider my case and give me another chance to attend the interview and explain details.
Today despite repeated attempts by the Court the first applicant was unable to add anything in support of his claims. In effect, he threw himself on the mercy of the Court. He asked the Court to examine the Tribunal decision itself and determine if there were any errors. He said he was unable to do this himself as he was not a lawyer.
The respondent’s submissions
In summary the respondent submitted that, it was not open for the applicants to argue that they were denied common law procedural fairness or natural justice in view of s.422B. In any event the applicants were given an opportunity to present their case in writing and orally. No particulars were provided for the other grounds. There was no jurisdictional error. The respondent submitted that the application should be dismissed.
Consideration
Natural justice
The applicants’ claims appear to be essentially that they were not advised of the additional information which was sought in the letter of 29 April 2004 because the letter went to their old address. The invitation to the hearing was not received directly by the applicants. Again it went to an old address. The first applicant claims he was confused about the importance of the hearing when he discussed it with his agent which is why the agent advised the Tribunal that the applicants did not wish to attend when in fact they did.
Leaving aside s 422B for the present, has there been any breach of the provisions of Division 4 of Part 7 of the Act?
The Tribunal sent the two relevant letters of 29 and 30 April 2004 to the applicants’ home address, that is their old home address, their old mailing address and to the migration agent who was authorised to receive those documents on the applicants’ behalf, Mr V Singh of Dahnora Migration Consultants. Mr Singh’s address was that authorised by the applicants for service. The applicants’ change in home and postal address was only sent by Mr Singh to the Tribunal on 25 May 2004 and no change was made to the address of the authorised recipient, Mr Singh. Mr Singh responded on behalf of the applicants to the Tribunal on 31 May 2004. He advised the Tribunal that the applicants did not wish to come to the hearing on 2 June 2004.
Having closely examined the material before me I am unable to discern any breach of the relevant requirements in Divisions 4 and 7A of Part 7 of the Act.
The fact that there was some confusion and communication break down between the applicants and their migration agent cannot amount to a denial of procedural fairness by the Tribunal (Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12).
In my view the applicants were given opportunities to present their case in writing and orally. Because of circumstances outside the control of the Tribunal the applicants did not take up those opportunities.
It is therefore not necessary to examine the operation and effect of section 422B. The natural justice ground must be rejected.
The other grounds
Despite repeated urgings by the Court the first applicant failed to provide any particulars in support of the other grounds outlined in his application. Rather he has asked the Court to do this for him. As he is unrepresented before the Court I have carefully examined the documents before me including the Tribunal decision. I can find nothing to support the grounds claimed by the applicants. These grounds must also be rejected.
Conclusion
The findings of the Tribunal were reasonably open to it on the material before it. I am satisfied that the Tribunal made no 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 High Court decision in S157/2002.
In addition the decision of the Tribunal was a bona fide attempt to exercise its powers. The decision clearly related to the subject matter of the Migration Act and related to the powers conferred on the Tribunal.
In the circumstances the application must be dismissed.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 12 January 2005
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