SZFVG v Minister for Immigration
[2006] FMCA 404
•13 March 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFVG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 404 |
| MIGRATION – RRT decision – applicant failed to attend hearing – whether given opportunity to attend – no denial of procedural fairness – application dismissed. |
Acts Interpretation Act 1901 (Cth), ss.8, 29(1)
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.425, 425(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Migration Regulations 1994 (Cth), reg.4.41
| Applicant: | SZFVG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG560 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 13 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 March 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms C Gray |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG560 of 2005
| SZFVG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 4 March 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 30 April 1999. The Tribunal affirmed a decision of a delegate made on 3 June 1998 refusing the applicant a protection visa.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth) but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).
The Court’s powers under s.483A are the same as the Federal Court jurisdiction under s.39B of the Judiciary Act 1903 (Cth). However, they are subject to limitations under Part 8 of the Migration Act, which have the effect that I do not have power to set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s claims should be believed, nor whether he qualifies for a protection visa.
The applicant arrived in Australia from his country of nationality, Lebanon, in July 1995, and applied for a protection visa on 15 May 1998. His application gave his residential address at Merrylands as his address for mail. His form did not disclose any assistance, nor appoint an agent. It contained vague claims to fear persecution by the Syrian and Lebanese authorities and Islamic militias if he returned to Syria.
A delegate gave a decision which was sent to the applicant at his home address, which drew attention to the delay in making the application in Australia, and suggested from country information that “it is more than likely he would have been located” and prevented from leaving the country, had the applicant been of interest to the Syrians.
The applicant undoubtedly received that letter, since he filed an application for review with the Tribunal on 30 June 1998. He gave only his home address at Merrylands, and no telephone numbers. No agent was appointed. No additional information was given to the Tribunal.
By letter dated 21 January 1999, sent to the applicant’s address at Merrylands, he was told:
The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now entitled to come to a hearing of the Tribunal to give oral evidence in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person.
The applicant was invited to complete an enclosed “Response to Hearing Offer” form, and return it by 11 February 1999. The applicant undoubtedly received that letter, since on 10 February 1999 he lodged a “Response to Hearing Offer” form signed by him, indicating that he did wish to attend the hearing.
By letter sent by registered post to the same address on 19 February 1999, the applicant was invited to a hearing on 22 April 1999 at 2 pm. The applicant would now have me believe that he did not receive that letter nor any subsequent communications from the Tribunal, and I shall refer to his evidence below.
In its statement of reasons dated 30 April 1999, the Tribunal referred to its invitation to attend the hearing. It said:
On 21 January 1999 the Tribunal wrote to the applicant advising that it had considered all the papers relating to this application but it was unable to make a favourable decision on that information alone. The applicant was advised that he was entitled to come to a hearing of the Tribunal to give oral evidence in support of his claims. The applicant advised the Tribunal that he wanted to give oral evidence and on 19 February 1999 the Tribunal wrote to the applicant advising that the hearing would be held on 22 April 1999. The applicant was advised that if he did not attend the hearing and a postponement had not be granted, the Tribunal would assume that he no longer wanted to come to a hearing and that a decision could then be made without further notice. The applicant did not attend the hearing or contact the Tribunal to explain his failure to attend. In these circumstances I am satisfied that the Tribunal has discharged its obligation to provide the applicant with the opportunity to give oral evidence before it and that he has effectively declined that opportunity. This matter has therefore been determined on the evidence before the Tribunal. That evidence comprises the Department’s and Tribunal’s files relating to the application and information which the Tribunal has obtained from independent sources about matters referred to in the application.
The Tribunal then referred to the lack of details in the applicant’s history presented with his visa application, and concluded:
The applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of his claims despite ample opportunity to do so. Nor has he given the Tribunal the opportunity to explore aspects of his claims with him. A number of relevant questions are therefore left unanswered. He has supplied the Tribunal with only an outline of his general claims. The lack of detail in the evidence leads the Tribunal to a position where it is unable to establish the relevant facts. Without further detail I am unable to be satisfied that the applicant has fears of returning to his country, whether these, if they exist, are well founded, or whether they are for reason of any of the categories in the Convention definition.
In my opinion, it was plainly open to the Tribunal to reason in that fashion, and I can see no jurisdictional error affecting its reasoning.
In the applicant’s application filed in this Court on 4 March 2005, the applicant invited the Court to “recognise me as a Refugee”, but that misconceives the powers of the Court. I have no such power.
The application also says that the matter should be remitted to the Tribunal because:
I was not given the opportunity to appear and give evidence …
The RRT … did not invite me to attend the hearing and there is no evidence on file to support RRT claims that I have not availed myself of the opportunity to attend an oral hearing.
No evidence was filed by the applicant with his application to support that contention, nor to explain his long delay in seeking orders by way of judicial review in relation to a 1999 decision of the Tribunal.
The applicant attended a first court date before a Registrar where he was assisted by an interpreter. He signed short minutes of orders requiring him to file evidence and an amended application by 11 May 2005. He did not comply with those directions.
The applicant requested legal advice under the free advice scheme. A letter was sent by the Court to the only address he gave the Court, giving him the name and contact details of a barrister. The Court file has an advice from that barrister confirming that on 16 May 2005: “Letter sent, telephone not operating. Letter sent and advice, and invited to contact me to discuss”.
It seems that in recent days the applicant has received a copy of the Minister’s submissions. A letter sent to the Court by a helper appears to seek an adjournment so the applicant can obtain free legal advice; however, I am not satisfied that he has not had ample opportunity to obtain that advice. I declined to adjourn the proceedings.
Notwithstanding the absence of any affidavits, I invited the applicant to go into the witness box to give sworn evidence in support of his ground of review. He agreed that he had been living at the Merrylands address in February 1999, that he had received the offer of a hearing, and that he sent the response which I have referred to above.
He claimed, however, not to have received the letter sent by the Tribunal two weeks later. He claimed that he had changed address at some point, but could not recall when. He said that the first time he had told anyone about his new address was when he was taken into detention at Villawood last year. He did not claim to have made any attempt to tell the Tribunal, nor the Department of Immigration, of any change of address from the Merrylands address last given to the Tribunal. When shown the later correspondence from the Tribunal sent to that address he denied having seen it prior to being taken into Villawood.
I have great difficulty believing that the applicant did not receive the letter of 19 February 1999 from the Tribunal sent by registered post, but in any event, in my opinion, the Tribunal took all reasonable steps to give him the opportunity to attend a hearing. Its obligation at the relevant time was found in s.425, unaffected by amendments made by Act No. 113 of 1998, which did not come into effect until 1 June 1999. Section 425(1) required:
Where review on the papers is not available
(1)Where section 424 does not apply, the Tribunal:
(a)must give the applicant an opportunity to appear before it to give evidence; and
(b)may obtain such other evidence as it considers necessary.
No formalities were prescribed as to the giving of such an opportunity. Provisions of the Regulations covered generally the giving of notices by the Tribunal to applicants, and provided that documents might be given or served by posting to the applicant’s last‑known place of residence (see reg.4.41 of the Migration Regulations 1994 (Cth)).
If it were necessary for me to make a finding as to whether the Tribunal’s letter was “given” to the applicant, I would make that finding by application of s.29(1) of the Acts Interpretation Act 1901 (Cth). I am satisfied as to the condition of “properly addressing prepaying and posting the document as a letter”, and I am not satisfied that the letter did not reach the applicant by delivery in the ordinary course of post. The applicant’s evidence about his change of address is so vague that I do not accept it, insofar as it might suggest a change of address during February 1999. I think it more probable that he continued to live at that address during that month and received the hearing appointment.
In any event, in my opinion, the applicant was given a reasonable opportunity to attend by the Tribunal sending him a letter in February 1999 and appointing a hearing for 22 April 1999. I am not satisfied that any procedure required of the Tribunal was not followed, nor that the Tribunal’s decision was attended by any failure of procedural fairness.
I therefore find that the Tribunal’s decision was not affected by any jurisdictional error. It is therefore a privitive clause decision, and I must dismiss the application.
That conclusion means that I do not need to address the long delay in the applicant coming to Court and in seeking judicial review of the Tribunal’s decision made in 1999.
I certify that the preceding twenty‑six (26) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 28 March 2006
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