SZFOV v Minister for Immigration
[2006] FMCA 1280
•30 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFOV & ORS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1280 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – where applicant did not receive invitation to Tribunal hearing – whether failure to comply with ss.425 and 426 of the Migration Act 1958 – whether denial of procedural fairness – whether relief should be refused on discretionary grounds. |
| Migration Act 1958, ss.425, 426 Migration Legislation Amendment Act (No 1) 1998 |
| Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289 SZEEF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 661 |
| Applicant: | SZFOV & ORS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG212 of 2005 |
| Judgment of: | Barnes FM |
| Hearing date: | 11 July 2006 |
| Date of Last Submission: | 21 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2006 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr J. Smith |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That a writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 1 June 1998.
That a writ of mandamus issue requiring the Refugee Review Tribunal to redetermine the applicant’s application according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG212 of 2005
| SZFOV & ORS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 1 June 1998 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas. The proceedings in this court were commenced on
25 January 2005. By orders made on 12 July 2005 the first applicant was appointed as the litigation guardian of applicants SZFOX and SZFOY who are children.
The applicants are citizens of Korea who arrived in Australia in September 1994 and lodged applications for protection visas in December 1996. The first applicant was the only applicant who made specific claims to be owed protection obligations under the Convention. For convenience he is referred to hereafter as “the applicant”. On 1 April 1997 a delegate of the respondent refused to grant the protection visas. By application received on 28 April 1997 the applicants sought review by the Tribunal.
In his protection visa application the applicant claimed that he was a political activist who had staged demonstrations against the South Korean government. He claimed that although he did not participate in destructive activities of demonstrators he was often wrongly regarded as a participant in destructive demonstrations and was sought by the police in South Korea. He claimed to fear that he would be arrested, “placed” in the law courts and that his claim would not be treated fairly.
In his 1997 application for review by the Tribunal the applicant gave an address in Burwood as both his home address and address for service. This was the same address as his address for correspondence in the protection visa application. The applicant also provided a home telephone number in the application for review in response to the question “Your telephone number (if we need to speak to you about your application it will be quicker by telephone)”.
On 30 April 1998 the Tribunal wrote to the applicant at the address provided, inviting him and the other applicants to attend a hearing to give oral evidence in support of their claims. The letter advised that if the applicant did not contact the Tribunal within 14 days of the date of the letter the Tribunal “will assume” that he did not want to come along and may make a decision on the information it already had. The letter also specified a hearing date of 1 June 1998. The court book contains a copy of this letter stamped “received” by the Tribunal on 2 June 1998 and an envelope postmarked 30 April 1998 addressed to the applicant at the address provided marked “return to sender” and “unclaimed 28/5/98”.
Tribunal decision
The Tribunal reasons for decision dated 1 June 1998 record that no response was received to the invitation of 30 April 1998 which had been sent to the applicants at their residential address and that the applicants did not attend the scheduled hearing. In those circumstances the Tribunal was satisfied that it had discharged its obligation to provide the applicants with the opportunity to give oral evidence and found that they had effectively declined that opportunity. Accordingly the matter was determined on the evidence before the Tribunal.
In its reasons for decision the Tribunal recorded the claims made to the Department of Immigration and also the claim made in the application for review that the applicant had participated in demonstrations and thrown a stone at police.
The Tribunal found that the applicant had provided only the briefest and vaguest of claims. It referred to specific aspects of his claims in relation to which there was a lack of detail. It found that the applicant had been put on notice by the Tribunal that it was unable to make a favourable decision on the information before it, but that he had not provided further information in support of his claims despite ample opportunity to do so. The Tribunal stated that the applicant had not given the Tribunal the opportunity to explore aspects of his claims with him and that a number of relevant questions were therefore left unanswered. The Tribunal concluded that the applicant had provided insufficient information on which it could be satisfied that he had suffered persecution in the past and would suffer persecution in the foreseeable future in Korea and that it could not be satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Convention.
The applicant first sought review of the Tribunal decision by application filed in the Federal Court of Australia on 30 June 1998. By handwritten letter dated 8 October 1998 the applicant notified the Federal Court that he discontinued the appeal. By orders made on
30 October 1998 Sackville J ordered that there being no appearance by the applicant at a directions hearing the application should be dismissed.
The application
The applicant commenced proceedings in this Court by application filed on 25 January 2005. He relies on an amended application filed on 5 May 2005.
In the amended application it was contended that the decision of the Tribunal was not made in good faith according to the rules of natural justice. It was claimed that the applicant did not attend the hearing because he did not receive the letter from the Tribunal dated 30 April 1998 and that it was apparent from the court book that the letter inviting the applicant to the hearing was returned to sender, being unclaimed as at 28 May 1998. It was stated in the amended application that the applicant was not living at the address to which the letter was sent at that time but at another specified address in Burwood and contended that the Tribunal should have made further attempts to contact the applicant in relation to his attendance at the hearing. It was claimed that as the applicant did not receive the letter advising him of the Tribunal hearing he had been denied procedural fairness in not having the opportunity to personally present his case to the Tribunal.
However in an affidavit sworn on 10 July 2006 the applicant deposed that while he had lived at a number of addresses with his family since his arrival in Australia, he had lived at the address given on the application for review until 1999 and that at all times his telephone number remained the telephone number listed on the application for review which had also been provided to the Department in connection with his protection visa application. He claimed that he never received the letter sent by the Tribunal by registered mail on 30 April 1998. He took issue with the fact that the Tribunal had failed to telephone him on the number provided, or to send him another letter or to question his whereabouts when the registered post letter was returned to it. He contended that the Tribunal did not meet its duties properly and that it should have made further enquiries and efforts to contact him. The applicant was cross-examined.
It was submitted for the applicant (by Mr Laba-Sarkis a friend who was permitted to address the Court on his behalf) that Haddara v Minister for Immigration & Multicultural Affairs (1999] 166 ALR 401 was relevant.
As counsel for the respondent acknowledged, as the case emerged at the hearing and in light of the reliance on Haddara, there are two distinct legal issues that arise in this case (although this was not made clear in Mr Laba-Sarkis’ submissions). The first is whether or not there was a breach of the Migration Act 1958 (Cth) and in particular of ss.425 and 426 as they stood at the relevant time and if so whether such a breach constitutes a jurisdictional error. The second is whether the applicants were denied procedural fairness in all the circumstances where the Tribunal proceeded to make a decision without holding a hearing.
Sections 425 and 426
At the relevant time sections 425 and 426 were as follows:
425(1) Where s.424 does not apply, the Tribunal:
(a) must give the applicant an opportunity to appear before it to give evidence;
(b) may obtain such other evidence as it considers necessary.
(2) Subject to paragraph (1)(a) the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review.
426(1) Where s.424 does not apply, the Tribunal must notify the applicant:
(a) that he or she is entitled to appear before the Tribunal to give evidence; and
(b) of the effect of subsection 2 of this section.
(2) The applicant may, within seven days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice …
Hence it is necessary to determine whether the Tribunal gave the applicant an opportunity to appear under s.425. It is relevant to note that as the Full Court of the Federal Court observed in SZFHC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 73 at [41] the form of s.425 applicable in this case can be contrasted with s.425 as it now stands which “requires the Tribunal to invite an applicant to appear and provides a method which the Tribunal must follow to satisfy this requirement” (in s.425A). Sections 425A (which, according to SZFHC exhausts the obligation of the Tribunal to invite an applicant under s.425) and also 426A were introduced by the Migration Legislation Amendment Act (No 1) 1998 but did not come into effect until 1 June 1999 and are not relevant in these proceedings.
In Haddara Lehane J considered whether the Tribunal had failed to comply with ss.425 and 426 of the Act in the form applicable in this case. The applicant had provided the Tribunal with a home address which was also his address for service and also with a mobile telephone number (but had lost the phone). The Tribunal wrote to the applicant at his home address acknowledging receipt of his application. The applicant gave oral evidence that he received that letter. The Tribunal then wrote to the applicant on 21 January 1999 under s.426 of the Migration Act inviting him to a hearing. The letter was sent by registered post letter addressed to the address provided. The envelope in which the letter was sent was in evidence, having been returned to the Tribunal unclaimed on 11 March 1999 (prior to the Tribunal decision of 22 March 1999). Lehane J found that the applicant did not actually receive the letter of 21 January 1999. Contrary to the position in this case, there was also evidence before the Court of two endorsements on the envelope which led the Court to infer that the Tribunal letter of 21 January 1999 was received at the local post office by a particular date. However his Honour found that whether or not cards had been left at the applicant’s address by the post office advising that the letter sent by registered mail was available for collection, the applicant did not actually receive any card informing him that the letter of 21 January 1999 was available for collection.
His Honour stated at [18] that compliance with s.426 was a necessary precondition of compliance with s.425, but not necessarily a sufficient condition. He referred to what was said by Hely J in Uddin v Minister for Immigration & Multicultural Affairs [1999] FCA 1041 (and see Sook v Minister for Immigration & Multicultural Affairs (1999) 86 FCR 5) to the effect that actual notification was required under s.426 (as it stood at the relevant time). Lehane J found (at [20]) that based on the findings of fact he had made, the applicant was not actually notified of the matters required by s.426(1) and that because the procedures required by s.426 were not observed, neither were those required by s.425.
Mr Laba-Sarkis suggested that what Lehane J stated in Haddara at [21] was relevant. However having found that there was a failure to comply with procedures, his Honour continued at [21]:
In those circumstances it is unnecessary for me to consider two other possible bases on which authorities suggest that the applicant might succeed. In Singh v MIMA [1999] FCA 613 Einfeld J held that where a registered letter, addressed to a particular place, is in fact taken to and kept at a post office, rather than taken by the postal service to the particular address, it is to be regarded as “sent to” the post office rather than the address. In Li v MIMA [1999] FCA 1147 Gyles J expressed the view, obiter, that Reg 5.03 is, at least in part, invalid: see at par 45 to par 50. In the circumstances it is unnecessary, and therefore I think undesirable, that I say anything about either of those matters.
There is no evidence before the Court to establish that the letter of
30 April 1998 was taken to and kept at a particular post office. As to the issue in Li, it was conceded for the first respondent that the Migration Regulations as they stood at the time were not applicable to notifications under s.426 of the Act (and see Minister for Immigration & Multicultural & Indigenous Affairs v Singh (2000) 98 FCR 77 and Singh v Minister for Immigration & Multicultural Affairs (2000) 172 ALR 738 in relation to the invalidity of Reg 5.03 insofar as it operated in respect of time limits imposed by Regulation 4.31 under s.412(1) of the Act).
Somewhat confusingly, it also seemed to be contended by Mr Laba-Sarkis that the Tribunal had failed to comply with Regulations 4.41 and 5.03 as they stood at the time, despite the acceptance in Haddara (consistent with Sook and Uddin) that Regulation 5.03 did not apply to a notification under s.426 and the concession by counsel for the first respondent which makes it unnecessary to consider these Regulations. In any event, the essence of the applicant’s submission is that the Tribunal did not notify him properly about his right to give evidence, particularly as he maintained that his telephone number had never changed and hence that it failed to comply with the Migration Act or denied him procedural fairness.
As was contended for the first respondent, the undisputed facts are that in 1996 the applicants applied to the Department of Immigration for a protection visa, giving a particular address in Burwood as the address for correspondence. Thereafter a number of letters were sent by the Department to the applicant at that address. In the application to the Tribunal of 28 April 1997 the same address was given as both the home address and address for service of the applicants. Subsequently the Tribunal sent letters to the applicants at that address, in particular an acknowledgement of the application dated 29 April 1997, the letter of 30 April 1998 inviting them to a hearing as well as the letter of 1 June 1998 enclosing a copy of the Tribunal’s decision.
In relation to the letter of 1 June 1998, it was pointed out by counsel for the respondent that on 30 June 1998 an application was made to the Federal Court for review of the Tribunal decision. The applicant had legal representation. The application stated that the date of the decision was 1 June 1998 and that the decision was received on 4 June 1998. It is not disputed that the applicant received notification of the Tribunal decision.
In dismissing the application to the Federal Court (in proceedings NG647 of 1998, 30 October 1998) Sackville J noted that the applicant’s solicitors had filed a notice of ceasing to act and that thereafter the applicant had been notified of a directions hearing but had failed to appear. Before the Federal Court was a letter, apparently from the applicant, advising that he wanted to discontinue the appeal. Sackville J considered it a reasonable inference that the applicant had determined not to proceed with his application for review. The application was dismissed for non-appearance. Consistent with this, in cross-examination the applicant responded “I guess so” when asked if he had not wanted to continue the Federal Court proceedings.
Counsel for the respondent also drew the Court’s attention to the fact that the copy of the letter of 30 April 1998 in the court book bore stamps which indicated that that letter was returned to and received by the Tribunal on 2 June 1998 (the day after the decision was made) and that the envelope with the applicant’s name and the Burwood address bore a date stamp of 30 April 1998 and a notice of return to sender dated 28 May 1998 indicating with a tick that something was unclaimed.
Reference was made to the applicant’s oral evidence that over time he had received a number of documents which he had collected from the post office, having been notified by some means that there was a letter waiting for him there.
It is not in dispute that by letter dated 30 April 1998 the Tribunal invited the applicant to attend a hearing on 1 June 1998. It is not disputed that the letter was sent by registered post addressed to the only address provided by the applicant to the Tribunal. It is not disputed that the applicant did not actually receive the Tribunal letter of 30 April 1998 and did not attend the scheduled hearing on 1 June 1998.
It was contended for the first respondent, and I accept, that the inference to be drawn by the Court from the date stamps and received stamp on the copy letter of 30 April 1998 is that the letter of 30 April 1998 was returned to the Tribunal and received by it on 2 June 1998, the day after it made its decision. Hence it can be inferred that the Tribunal made its decision without actual knowledge that the applicant did not in fact receive the letter of 30 April 1998. That inference is, as counsel for the respondent contended, corroborated by the Tribunal statement in its reasons for decision that no response had been received to the letter and that the applicant did not attend the hearing scheduled on 1 June 1998.
It was submitted for the respondent that the critical issues were not whether the applicant had in fact received and read the Tribunal letter but rather whether he was given an opportunity to attend the hearing and whether he was properly notified of his right to attend the hearing (see ss.425 and 426) and that neither question depended upon whether he had actually read the letter. It was submitted that the applicant’s evidence did not establish that he was not notified of the letter (as required under s.426) in the sense of receiving notification from the post office.
As contended for the respondent I accept on the basis of the applicant’s oral evidence that (contrary to the statement in the amended application which the applicant said had been prepared with the assistance of the barrister providing him with advice under the legal advice scheme), as he stated in his affidavit of 10 July 2006 he was living at the relevant address in Burwood throughout the period at least up to 30 June 1998, and on his own evidence up until 1999. I also accept his evidence that he had received some correspondence addressed to that address in connection with his protection visa application by collecting it from the post office after being notified that there was correspondence waiting for him at the post office and that he took such correspondence to his migration agent who translated it for him.
It follows from the fact that the letter of 30 April 1998 was returned to sender that if it was held at a post office the applicant did not claim it. There is however no evidence before the Court as to the letter being received by or held at a particular post office (cf Haddara) or of any advice from any post office to the applicant (at his correct address) that a registered post item consisting of the letter of 30 April 1998 was available for collection at the post office (cf SZAXF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 494).
It was pointed out for the respondent that in cross-examination the applicant had stated, quite understandably given the time since the events in question, that he did not recall whether in either May or June of 1998 he had received notification that there was correspondence waiting for him at the local post office, although he did recall having received such notification and collecting mail from the post office about four times. Nonetheless he must, as contended for the respondent, have received some notification in June 1998 because he filed an application in the Federal Court stating that he had received notification of the Tribunal decision. It was submitted that either it should be inferred that as the applicant did receive a notification in June of 1998 and could not remember this specifically that, on balance, he also received a notification in May 1998 even though he did not remember, or, at the least, that he had not established that he was not notified of the letter of 30 April 1998 (in the sense of notified by the post office that it was holding something for him).
I am not persuaded that such an inference should be drawn on the evidence before the Court. Not only is there no evidence as to notification to the applicant by any post office that it was holding the letter of 30 April 1998 for collection, but also I do not consider that the evidence of the applicant that he had received notification from the post office and collected mail on four occasions supports the inference suggested for the respondent. It can be inferred that in June 1998 he collected the notification of the decision sent by registered post. While he could not recall whether or not he had received any notification in either May 1998 or June 1998 he took action which must have been in response to the letter of 1 June 1998. He did so that month, seeking review of the Tribunal decision in the Federal Court. As in Haddara (at [15]), in such circumstances, where there is no reason to doubt the genuineness of an applicant’s wish for a Tribunal hearing, it would be surprising if he had neglected any post office notification given in relation to the letter of 30 April 1998.
I am not satisfied that it can be inferred that the applicant did receive a post office notification in May 1998 of the 30 April 1998 letter. On the contrary, despite the applicant’s lack of recollection of when he received notifications from the post office, I accept his evidence that he collected letters when notified and took them to his agent for translation. I am also satisfied that he acted in response to the letter of 1 June 1998 enclosing the Tribunal decision. In those circumstances I find on the evidence before me that the applicant did not actually receive any card from the post office informing him that the letter of
30 April 1998 was available for collection. Hence whether or not notification from the post office would in fact meet the Tribunal’s obligations under s.426, in this case the applicant was not notified of the matters required under s.426(1) and hence given the opportunity required under s.425 of the Migration Act.
Given these findings it is not necessary to determine whether, given that s.426 as it stood at the relevant time has been said to require actual rather than deemed notification of the applicant (see Uddin and Haddara and SZFHC at [40] – [41]), if the applicant had received a post office card stating registered mail was available for collection (or had not established he had not received such a card) that would constitute notifying the applicant within s.426(1) that he was entitled to appear before the Tribunal to give evidence. I note however that such an approach would not be consistent with the view of Hely J in Uddin at [34] that the concept of deemed notification under the Regulations had no application to the requirement of s.426 as it then stood that the Tribunal “must notify the applicant” of the matters specified. Insofar as actual notification is required this suggests that for notification of an invitation to a hearing to be effective, the applicant must actually receive the invitation (not merely a post office card that happens to relate to a letter containing an invitation).
Moreover, even if (contrary to my view) the applicant was deemed to have been notified of the matters referred to in the letter of 30 April 1999 or to have been sufficiently notified if the post office had delivered and he had actually received a card from the post office advising that the letter was available for collection, compliance with s.426 is (as stated in Minister for Immigration & Multicultural Affairs v Capitly [1999] FCA 193, Uddin at [22] and Haddara at [18]) a necessarily but not sufficient condition of compliance with the then requirements of s.425.
There is authority (see Budiyal v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 166 at 172) approved by the Full Court of the Federal Court in Minister for Immigration & Multicultural Affairsv Capitly (1999) 55 ALD 365 at 371 and SZAXF at [19]) that the content of the procedural requirement in s.425 that the Tribunal give the applicant “an opportunity to appear before it to give evidence” is “an objective one” and that “on a proper construction of [s.425(1)(a)] there must be an implication that the opportunity provided is a reasonable one”.
As Hely J stated in Uddin at [30] “The s.425 duty is not recessarily performed or discharged by service, or deemed service, of a document.” In SZFHC v Minister for Immigration & Multicultural & Indigenous Affairs at [40] – [41] the Full Court of the Federal Court suggested that the comments of Hely J in Uddin were relevant to s.425 as it stood at the relevant time. His Honour stated at [31]:
In the present case, the opportunity for which s 425 makes provision was claimed to have been extended to the applicant by posting a letter addressed to the applicant, admittedly at a notified address for service, but when RRT knew of facts which ought to have alerted it to the fact that a letter sent in that way might well not come to the applicant's attention. If, as was likely to be the case, a letter sent in that way did not reach the applicant, then it cannot meaningfully be said that RRT has given to the applicant the opportunity which s 425 requires to be extended to him. The fact that the letter was copied to the adviser cannot alter the position unless the adviser conveyed its terms to the applicant. Thus, on the facts of this case, there has been a failure to comply with s 425, whatever view is reached as to whether s 426 requires actual notification.
As in Uddin, the invitation to a hearing in this case required the applicant to communicate an election to the Tribunal “immediately” as to whether he wanted to come to a hearing and to complete and return a form to the Tribunal within 14 days of the date of the letter. The applicant did not telephone the Tribunal. Nor did he complete and return the form within 14 days of the date of letter. The letter also advised the applicant “If we do not hear from you within 14 days the Tribunal will assume that you do not want to come to a hearing and the Tribunal may make a decision on the information it already has.” Contrary to the situation considered in Uddin and in Xie v Minister for Immigration & Multicultural Affairs [1999] FCA 1480 the letter did fix a date, time and place for a hearing and the Tribunal did not make a decision until after the applicant had failed to attend the scheduled hearing. However, at the time of the decision, while the letter had not yet been returned to sender, the Tribunal knew of facts (the absence of any response from the applicant within 14 days of 30 April 1998) which ought to have alerted it to the fact that a letter posted to the notified address for service might nonetheless not have come to the applicant’s attention (although there may, of course, be other explanations for an applicant’s failure to respond or to attend the hearing).
However counsel for the respondent relied on what was said by Stone J in SZAXF at [26]. In that case it was established that the Tribunal had sent to the appellant (by registered post addressed to the only address provided) an invitation to appear before it. At first instance Federal Magistrate Raphael took holograph indicators on the envelope in which the letter was sent to refer to cards indicating that a registered post item was waiting at the post office. Stone J found (at [6]) that for reasons that had not been established, the letter was not able to be delivered. Thereafter the letter was returned unclaimed to the Tribunal on the day before it made its decision. In that case the appellant had failed to notify the Tribunal of any contact telephone number or of the details of any advisor or representative.
Her Honour expressed the view at [24] that if Regulation 5.03 (which deemed a document sent by the Tribunal to be taken to be received by the applicant seven days after the date of the document) applied, then the appellant would be deemed to have received the letter, as it could be inferred that the letter was sent within the seven day period after the date of the document required by Regulation 5.03(2). Her Honour stated, “If the above analysis is correct any argument based on the Tribunal’s failure to notify the appellant of the opportunity to attend the hearing on 18 November 1997 falls away”. However, as her Honour went on to observe, there is considerable authority to the contrary in decisions of single judges of the Court as considered by Hely J in Uddin v Minister for Immigration & Multicultural Affairs suggesting that actual notice was required under the old ss.425 and 426. Her Honour referred to what Hely J had stated at [30] – [31] as set out above and continued at [26]:
His Honour’s comments are pertinent to the issue of whether in the circumstances described there has been a failure to comply with the procedures laid down by the Migration Act. While not disagreeing with his Honour’s comments in relation to the circumstances in Uddin, I have real doubts that, properly construed, the Migration Act as it was at the relevant time required the Tribunal to refrain from making a decision if, for reasons beyond its control, it was unable to contact an applicant in order to notify him or her of the opportunity afforded by s.425.
It was contended for the respondent on this basis that where the Tribunal decision was made prior to it receiving knowledge that there was no actual notification, where there was some reason beyond the Tribunal’s control that the notice it sent to the applicant was not received by him and where there was no evidence as to why that occurred, the Tribunal was not required to refrain from making a decision.
In SZAXF the issue before the Court (sitting as the Full Court of the Federal Court) was whether there had been a failure to comply with s.425 of the Act and, if so, whether such a breach constituted a jurisdictional error. Her Honour acknowledged that s.425 must be read in the context of s.424 (which provided for a favourable decision without taking oral evidence) and s.426. While her Honour discussed the possible application of Regulations 4.41 and 5.03 and whether deemed rather than actual notification could suffice to show that the Tribunal had given an applicant a reasonable opportunity to exercise the rights given under s.425, after expressing the “doubts” set out at [40] above, her Honour stated at [27]:
In any event I am of the view that were the Tribunal to be in error in making a decision in such circumstances, this could not be characterised as a jurisdictional error. 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.
In other words, her Honour did not actually decide that there was no breach of s.425 (despite expressing “real doubts”). Rather she found that if there was a breach it could not be characterised as jurisdictional error, absent a denial of procedural fairness. In SZAUL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 347 I took the same view in circumstances where the only contact details available to a Tribunal consisted of an address that had been provided to the Department and while no contact details had been included in the application for review.
However in both SZAXF and SZAUL the issue was whether a failure to comply with s.425 would amount to a jurisdictional error in the absence of any unfairness attributable to the Tribunal (consistent with the approach of the Full Court of the Federal Court in NAHV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102 at [22] – [24]). As acknowledged by counsel for the first respondent such an approach must now be reconsidered in light of the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 that establishes that a failure to comply with a mandatory provision of the Migration Act constitutes jurisdictional error, even absent unfairness.
Hence, contrary to the position in SZAXF, it is critical in this case to determine whether there was a failure to comply with s.425. Importantly and also contrary to the position in SZAXF, there was in this case not only a failure by the applicant to respond to the invitation, but also another avenue available to the Tribunal to contact the applicant – by telephone to the number provided in the review application. As Federal Magistrate Raphael had observed at first instance in SZAXF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 374 at [16] when concluding that in all the circumstances the applicant had been offered a reasonable opportunity to appear before the Tribunal:
If the applicant had left a telephone number at which he could be contacted then I would have expected the Tribunal to contact him on that. He did not. If the applicant had given an address of an agent to whom correspondence could also be sent I would have expected some communication with the agent but he did not. One wonders what else the Tribunal could reasonably have been expected to have done.
Moreover, it was stated on the printed review application form: “If we need to speak to you about your application it will be by telephone.” There is nothing in the Tribunal reasons for decision to suggest that it considered telephoning the applicant. Instead it simply assumed, presumably from the fact the letter had been sent (and at the time of the decision not returned to sender), that the applicant had been “put on notice” that the Tribunal could not make a favourable decision on the information before it.
In these circumstances, in the absence of any evidence of any attempt by the Tribunal to contact the applicant by telephone, as the review application form suggested would occur, where the Tribunal was aware that the applicant had not responded to the letter of 30 April 1998 as requested, it cannot be said that it had given the applicant an opportunity to appear that was reasonable in all the circumstances (see Budiyal, Capitly and SZAXF and also see SZDED v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 96 to the same effect). A failure to comply with ss.425 as well as 426 is established. Consistent with SAAP such failures constitute jurisdictional error.
Procedural fairness
Insofar as the same circumstances are said by the applicant to constitute a denial of procedural fairness, counsel for the respondent suggested that SZAXF was directly in point. It was contended that in this case, as in SZAXF, the applicant had been given an opportunity to appear that was reasonable in all the circumstances and that at the date of the decision (1 June 1998) the Tribunal must have been unaware of the fact that the applicant had not received the notice of invitation. It was said that this was so despite the fact that there was another method of contacting the applicant which had not been employed by the Tribunal (through the telephone number which he had provided). It was submitted that the Tribunal was not obliged to telephone the applicant, as all that it was required to do was provide a reasonable opportunity and that it did so in all the circumstances having regard to the fact that an address had been provided, that it wrote to the applicant by letter of 29 April 1997 giving the applicant the opportunity to submit evidence and make submissions, that there was no suggestion that the letter of 29 April 1997 was returned, so that there was no reason for the Tribunal to suppose that it was unreasonable to send a further letter to that address. It was also suggested that it was relevant to bear in mind that in oral evidence the applicant had suggested that he had a migration agent apparently assisting him, although no agent was named in the application for review. On this basis it was submitted that there was no denial of procedural fairness by the Tribunal.
However in circumstances where the Tribunal had suggested in the review form that any telephone number provided would be used to contact the applicant and where it knew that he had not responded to the letter of 30 April 1998 (despite the direction in that letter that he do so) nor attended the hearing, in contrast to SZAXF at [27] it cannot be said that the Tribunal was “unable to contact” the applicant “for reasons beyond its control”. As Federal Magistrate Raphael suggested at [16] in SZAXF, in such a case it cannot be said that the Tribunal had given the applicant an opportunity that was reasonable in all the circumstances to appear before it. Even if, technically, there was no breach of either ss.425 or 426 (for example if deemed notice sufficed) I am satisfied that in the particular circumstances of this case there was a denial of procedural fairness. I note that neither s.426A or s.422B of the Act was in force at the relevant time.
For the sake of completeness I note that in oral submissions Mr Laba-Sarkis suggested for the applicant that when the envelope (presumably this is a reference to the letter of 20 April 1998) was returned to the Tribunal the Tribunal had another opportunity to write and put adverse information to the applicant. It is notable however that the Tribunal made its decision before the letter was returned to it.
It was also contended that it was a denial of procedural fairness for the applicant to be deprived of the opportunity to comment or give some answers to the Tribunal. Insofar as this is intended to be a submission that the Tribunal was obliged to put information to the applicant for comment, that has not been established. The Tribunal’s conclusion was based on its inability to be satisfied on the evidence before it that the applicant had a well-founded fear of persecution. The Tribunal is not bound to put its thought processes to an applicant for comment and it cannot be said that the adverse conclusion was one that would not obviously be open on the known material (see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 – 592.
Mr Laba-Sarkis also appeared to take issue with the Tribunal’s reliance on independent information without giving the applicant an opportunity to address it. However while the Tribunal referred generally to evidence before it, including information the Tribunal had obtained from independent sources about matters referred to in the application, in its findings and reasons it did not rely upon any independent evidence as the decision turned entirely upon the Tribunal’s assessment of the applicant’s own claims and the briefness and vagueness of those claims. No denial of procedural fairness has been established in that respect.
It was also generally contended by Mr Laba-Sarkis that there was Wednesbury unreasonableness. However no such unreasonableness, let alone jurisdictional error, is established. The Tribunal’s decision was that it was not satisfied that the applicant satisfied the criteria for the grant of a protection visa because the evidence before it did not enable it to reach any level of satisfaction about the factual basis for such claims. Its findings of fact were reasonably open to the Tribunal given that the claims made by the applicant were fairly brief and that nothing further was put before the Tribunal to assist it.
Discretion
A final issue raised by counsel for the first respondent was that even if the Court was satisfied that there was a jurisdictional error, there was a question as to whether or not the Court ought to exercise its discretion to grant the relief sought. This was said to be so in light of the fact that, although the applicant initially properly commenced proceedings in the Federal Court seeking review of the Tribunal decision, he did not prosecute them at all. His evidence was that he did not want to continue them and there was thereafter delay. It was acknowledged that, as the applicant said in oral evidence, he joined the Muin and Lie class action. Counsel for the respondent told the Court that, although it was not in evidence, the first respondent’s records showed that the applicant joined the class action in September 1999 (not 2001/2002 as the applicant recalled) and on that basis restricted his submission as to delay up to September 1999. It was contended that there was nonetheless a fairly considerable period during which the applicant was aware that he could take proceedings and did not do so and that he had not explained at all why.
In oral submissions counsel for the first respondent acknowledged that in a letter to the Court dated 20 January 2006 and filed on 23 January 2006 the applicant had referred to difficulties he had with his initial application for review of the Tribunal decision because he relied on a migration agent and had claimed that he failed to appear in those proceedings because of such reliance. Although he did not raise such matters in his affidavit of 10 July 2006, the applicant, who is self-represented, referred to such difficulties in cross-examination. In his letter of 20 January 2006 the applicant also explained that he had been told that from October 2001 the Migration Act had been amended and that the privative clause had removed the right, except under very restrictive circumstances, to have a decision of the Tribunal reviewed. This letter also stated that the applicant had sought Ministerial intervention and that the replies received were negative.
Counsel for the respondent contended that even if the material in this letter was accepted as evidence, it did not really explain what the applicant did from 1998 until 2001, why it took him so long to find someone to assist him, why it was that the solicitor who initially represented him was no longer able to assist him and more generally why he could not continue the original proceedings. I note however that on the basis that the applicant joined the class action in September 1999 (not 2001) the period in issue is in fact from November 1998 to September 1999.
It was acknowledged for the respondent that the applicant’s original judicial review application had been made in what might be described as “extraordinary” terms (given that he had legal representation) because it referred to a provision of the Migration Act (s.353) that related to the Migration Review Tribunal and not the Refugee Review Tribunal. It was contended however that the Federal Court would have been able to “sort that out”. It was suggested that there was no explanation from the applicant, apart from the fact that he said that he had paid some $8,000 in legal costs, as to why he did not continue the proceedings or why it took him until 2005 to make the present application. It was contended that in the circumstances there was an unwarrantable delay and hence the application ought to be dismissed.
No oral submission was made as to the extent of any delay after resolution of the applicant’s involvement in the class action. While in post-hearing written submissions the respondent relied on submissions filed on 16 September 2005 (in connection with an application for summary dismissal) dealing with the issue of the court’s discretion and what was said to be the applicant’s “unwarrantable delay”, those submissions relied on the delay between dismissal of the Federal Court proceedings (said to be on 2 November 1998) and the date of filing of the present proceedings – without allowance for the applicant’s participation in the Muin and Lie class action (as to which see Applicant S1174 of 2002 v Refugee Review Tribunal [2004] FCA 289 at [29] per Emmett J). Such submissions also referred to a lack of substance in the grounds relied on by the applicant (a factor which can no longer be said to be the case), as well as what was said to be a lack a of satisfactory explanation for not bringing in a timely way any claim the applicant wished to prosecute.
Mr Laba-Sarkis contended that on the basis of a recent decision of Bennett J if there was a jurisdictional error then relief should be granted notwithstanding any delay. He undertook to provide the Court with a reference to the decision in issue after the hearing.
After the hearing Mr Laba-Sarkis drew the Court’s attention to the decision in SZFCX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 394, suggesting that it related to a Tribunal decision of 1997 and that as Bennett J had found that there was a jurisdictional error the appellant did not have to establish unwarrantable delay [sic].
In SZFCX Bennett J allowed an appeal from a decision of this Court and ordered that the matter be remitted to the Tribunal for reconsideration. The Tribunal decision was dated 28 October 1997. The application to the Federal Magistrates Court had been filed on
26 November 2004. Her Honour observed that in the time between the decision and application for review the appellant had sought a discretionary decision from the Minister and had joined a class action in the High Court in which his involvement had ceased on 20 June 2003. Her Honour found that the Tribunal had failed to consider an aspect of claims made by the appellant, that accordingly the Tribunal decision was infected with jurisdictional error and that it was not a privative clause decision. The decision does not however stand for some general proposition that when a court is satisfied that a decision contains jurisdictional error relief should be granted, or that no issue of discretion arises or that an applicant is never required to explain unwarranted delay.
However in this case the applicant has provided some explanation (not only in the letter of 20 January 2006 but also in response to cross-examination) for discontinuance of the prior proceedings and for the subsequent delay. The applicant explained that he had difficulties with the migration agent he relied on in connection with the application to the Federal Court proceeding (who he understood had “run away” from Australia). That is consistent with the “extraordinary” ground in that application referred to by counsel for the respondent. The Federal Court proceedings were dismissed on 31 October 1998. The applicant joined the class action in September 1999. Counsel for the respondent takes no issue with the time during which the applicant was a party to the Lie class action (from September 1999 on). It is not disputed that before he commenced these proceedings the applicant also sought ministerial intervention.
I considered authorities in relation to the discretion to withhold relief in SZEEF v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 661. Contrary to the written submissions of the respondent filed on 16 September 2005 in relation to the application for summary dismissal, as the application now stands it cannot be said that there is a lack of substance in the grounds relied on by the applicant. A jurisdictional error has been established (see Gararth v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 316). In all the circumstances, where there has been a failure to comply with a provision that (like s.424A) is a “statutory obligation to accord procedural fairness” (SAAP at [77] per McHugh J), and where some explanation for delay has been provided, I am not satisfied that it would be appropriate to refuse relief. The application should be remitted to the Tribunal for redetermination according to law.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 29 August 2006
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