SZGCJ v Minister for Immigration

[2006] FMCA 1185

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGCJ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1185

MIGRATION – Refugee – application filed out of time – no jurisdiction to hear the application – application dismissed.

Migration Act 1958, ss.36(2), 65, 422B, 424A, 424A(1), 424(3)(a), 424A(3)(b), 425, 425A(3), 426, 426A, 430B(6), 430B(6)(a), 430B(6)(b), 430C(2), 441A , 441A(4), 441C(4)(a), 441G(1), 477(1A)
Migration Regulations 1994, regulations 4.35D

Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
Ngu vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 2
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61
SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 1195
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248
Minister for Immigration & Multicultural Affairsv Ahmed [2005] FCAFC 58
Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287

Applicant: SZGCJ

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 953 of 2005

Judgment of: Nicholls FM

Hearing date: 15 August 2006

Date of Last Submission: 15 August 2006

Delivered at: Sydney

Delivered on: 24 August 2006

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr. B. Cramer

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent in these proceedings.

2. The name of the first respondent be amended to read “Minister for Immigration & Multicultural Affairs”.

3. The application is dismissed.

4. The applicant pay the first respondent’s costs set in the amount of $3600.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 953 of 2005

SZGCJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application filed in this Court on 18 April 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 January 2004 and handed down on 18 February 2004 to affirm the decision of the delegate of the respondent Minister made on 19 June 2003 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.

2. The respondent Minister in these proceedings filed an amended Notice of Objection to Competency on 14 June 2005, opposing the applicant’s application for review on the basis that this Court lacks jurisdiction to try the application pursuant to s.477(1A) of the Migration Act 1958 (“the Act”) (as it then was at the time of the application to the Court), as the Tribunal’s decision is a privative clause decision filed outside the mandatory time limit.

3. The applicant is a citizen of Syria whose place of habitual residence, prior to coming to Australia, had been Lebanon. He arrived in Australia on 7 April 2003. On 16 May 2003 he lodged an application for a protection visa, and on 19 June 2003 a delegate of the respondent Minister refused to grant this visa. On 17 July 2003 the applicant applied to the Tribunal for review of that decision. The applicant’s claims to protection are set out in his application for a protection visa, reproduced at Court Book (“CB”) 1 to CB 25 and in an attached statement reproduced at CB 26. The application for review is reproduced at CB 41 to CB 44, with a further statement reproduced at CB 45. The applicant indicated in his application for review that he authorised a “Camil Shalala” to act on his behalf and nominated him as the “Authorised Recipient” of correspondence relating to his application (CB 42).

4. The applicant did not claim to be a member of any political or religious party, but nonetheless claimed that he would be a target for persecution if he returned to Lebanon because of serious accusations against him that he was transferring information about Hezbollah to the Israelis. He claimed that if he returned, the Lebanese and Syrian authorities and Hezbollah would persecute him.

5. Following receipt of his application, the Tribunal wrote to the applicant on 17 July 2003 (CB 46 to CB 47) and notified him of the procedures by which his application would be reviewed. Relevantly, the Tribunal advised as to the importance of a hearing, and the opportunity this would provide to the applicant to give evidence in support of his application. The letter was sent to his authorised recipient with a copy sent to the applicant’s home address which he had also indicated on his application was his mailing address (CB 41.8).

6. On 9 December 2003 the Tribunal again wrote to the applicant advising that it had considered all the material before it relating to his application but that it was unable to make a favourable decision on that information alone (CB 49 and CB 50). The letter was sent by registered post to the applicant’s “authorised recipient” for correspondence and also to his home (mailing) address. The Tribunal invited the applicant by letter, to give oral evidence and present arguments at a hearing on 21 January 2004. The letter provided what was described as “important information” – that if the applicant was unable to attend he should contact the Tribunal “immediately”, or if he did not attend the Tribunal could proceed to a decision without further notice.

7. On 19 January 2004 the Tribunal received a letter apparently signed by the applicant and dated the same day which stated:

   “I kindly ask the presiding member to assess my application on the material available, as I am unable to attend the hearing on the 21^st January 2004, because I have no other materials to present to the RRT.” (CB 51)

8. The Tribunal proceeded to consider the applicant’s claims on what was before it. Its decision record is set out at CB 56 to CB 60. It noted that the applicant had consented to the Tribunal proceeding to a decision without taking further action. The Tribunal found that without detailed information about the applicant’s claims, and on what was before it, it could not be satisfied that “the applicant’s evidence is credible” and that “he faces a real chance of persecution” (CB 60.3 to CB 60.4).

9. The respondent (by amended Notice filed on 14 June 2005) objects to the Court proceeding to try this matter on the basis that, with reference to s.477(1A) of the Act (the legislation relevant at the time of the application to the Court). The submission is that in respect of a privative clause decision, an application must be made within 28 days of an applicant being notified of the decision. The respondent asserts that the decision is a privative clause decision and was notified to the applicant on 27 February 2004 by letter sent on 18 February 2004 to his authorised recipient (CB 54). This letter complied with the Tribunal’s obligation pursuant to s.430B(6) of the Act. The letter was sent to the authorised recipient (s.441G(1)) and to the applicant’s home (mailing) address as provided in the application to the Tribunal (CB 42.5). It was sent within 14 days of the handing down of the decision in compliance with s.430B(6)(a) and by one of the methods specified in s.441A (by prepaid post (s.441A(4) as required by s.430B(6)(b)). The authorised recipient is taken to have received the letter within 7 working days by virtue of s.441C(4)(a). This means the authorised recipient was taken to have been notified on 27 February 2004. Therefore, pursuant to s.430C(2), the applicant is taken to have been notified of the decision on this date.

10. The respondent also submitted that the Tribunal complied with the requirements of ss.425, 426 and 441A(4) of the Act when inviting the applicant to the hearing. The Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 is authority for the proposition that the Tribunal has the power to proceed with an application pursuant to s.426A where a hearing invitation has been properly given under the Act. In this regard, I note that with reference to s.425A(3) of the Act (the effect of which is that a period of notice is required in relation to an invitation to appear before the Tribunal and this period is prescribed by regulation 4.35D of the Migration Regulations 1994 (“the regulations”)) the statutory notice periods have been complied with. Pursuant to regulation 4.35D the notice period

    starts 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. The time between the date of the hearing invitation 9 December 2003 and the hearing date

    
    21 January 2004

    was in excess of the minimum time prescribed and this is the case even when allowing, in addition, for the 7 working days required for deemed receipt of the invitation to be effective.

11. Section 477(1A) (as it applied) requires the application in respect of a privative clause decision to have been made to this Court within 28 days. The application to the Court on 18 April 2005 was clearly well out of time (see Ngu vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 2). This time limit applies to privative clause decisions (Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2), and not to decisions infected with jurisdictional error. It remains therefore to determine whether the Tribunal’s decision is so infected.

12. The applicant’s grounds, and initial complaints about the Tribunal’s decision, are set out in his amended application filed in this Court on 22 July 2005:

    “1.The RRT failed to give me an opportunity to comment on adverse material as I had informed the RRT through my migration agent that an assessment on the material to be done and that I have no other material present to the RRT. The RRT therefore erred in law in making a decision on the available information without giving me the opportunity to comment. Such is a breach of natural justice and fairness.

    2.I rely also on information given to the Minister which I would have relied on and given to the Tribunal if I had been asked to do so.

    3.I ask the Court to hear this matter even though it does not fall within 28 days because I have written to the Honourable Minister and asked for intervention and as my request was denied I had no other option but to lodge this application with the Federal Magistrates Court.”

13. At the hearing before me the applicant appeared unrepresented and was assisted by an interpreter in the Arabic language. Mr. Cramer appeared for the respondent. The applicant stated that his migration agent (Mr. Shalala) did not explain to him “the necessary forms that I need to understand”. He explained to the Court that with the assistance of a Mr. Toufic Laba, who was present in the Court, he had gained a better understanding of matters relevant to his application and provided written submissions to the Court in support of his application that were drafted with the assistance of his friend. The written submissions confirm that the applicant:

    1)Sought to rely on his amended application and attachments filed on 22 July 2005.

    2)Accepted that the Tribunal invited him to a hearing on
    9 December 2003 (this was with reference to the Tribunal's letter of invitation of 9 December 2003 (CB 49 to CB 50)), but that on 19 January 2004 his migration agent typed a letter that he signed, and which was then faxed to the Tribunal (CB 51).

    3)Notwithstanding what was contained in the letter, expected the Tribunal to write back to him and give him the opportunity to comment on the country information “or any other material”.

    4)Complains that the Tribunal “should” be satisfied that the applicant had put “forward the requested information”.

    5)Complains that he was not given an interview in relation to his original application.

    6)Had provided two statements in support of his claims, one attached to the protection visa application (CB 26) and the other to the Tribunal's (CB 45), and that the Tribunal did not properly deal with his case as an Alawi.

    7)Was not aware that an interview “is to be given to me and I was not aware that the Tribunal wanted more information”.

    8)Complains that the Tribunal failed to “give me the benefit of the doubt” and to “raise important issues which would substantiate my claim”. 

14. The applicant's first ground of complaint as set out in the amended application asserts that the Tribunal failed to give him an opportunity to comment on adverse material and that this was a breach of natural justice and procedural fairness. I take the view that s.422B, which became operational on 4 July 2002, and predates the application to the Tribunal, applies to this case (Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61). To the extent therefore that the Tribunal's obligations in relation to providing information for comment to the applicant are exhaustively dealt with by s.424A of the Act, but also in terms of natural justice and procedural fairness at general law, I cannot see that the Tribunal failed in any obligation in this regard. The Tribunal's decision was clearly based on its inability to be satisfied on what had been put before it that the applicant had a well founded fear of persecution in terms of the Convention as the claims related to both Syria and Lebanon. The relevant statutory requirements in this regard are set out in s.65 of the Act that establishes, relevantly, that for a protection visa to be granted to the applicant (s.36(2)), the Tribunal must reach a requisite level of satisfaction that the applicant meets the requirements of, amongst others, s.36(2) before the grant of a visa can be mandated. The Tribunal, on what had been put before it, which it described as being “without detailed information” could not be satisfied that the applicant in effect met the definition of refugee. I cannot see any error in what the Tribunal has done in this regard that can be said to be a failure either on application of the relevant statute law or at general law of any obligation of natural justice. The applicant, who had the assistance of an adviser before the Tribunal, was put on notice that on what had been put before it the Tribunal was unable to make a favourable decision. The Tribunal invited the applicant to a hearing and this is not disputed by the applicant now before me. The applicant did not attend the hearing, and in my view the Tribunal was therefore entitled to proceed to a decision pursuant to s.426A of the Act. I cannot see that the Tribunal relied on any information such as to have caused it to write to the applicant pursuant to s.424A(1). As Allsop J. said in SZCIA v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 238 at [11]-[13]:

    “[11] The Tribunal's obligation in relation to the grant or refusal of visas is contained within ss 36 and 65 in particular of the Migration Act. If the Tribunal is not satisfied that Australia has protection obligations in relation to the applicant the Tribunal must refuse the visa. Thus, it is necessary to understand why it was that the Tribunal reached the view that it did in relation to this applicant's claims, and in particular whether any information was the reason or a part of the reason for the decision.

    [12] In my view the reason for the decision was, and was only, that the Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state. The reason or the decision was simply, and no more than, the absence of material which it required to reach a state of satisfaction, no findings of fact remain. The Tribunal concluded that on the material the absence of information was such that it was not able to reach the requisite state of satisfaction. In SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 1195, I said the following at paragraph 29, which is equally applicable to the matter here:

    ‘On one view it might be said that since the only information that was before the Tribunal about the appellant's circumstances was information not withdrawn from the operation of section 424A(1) by section 424A(3)(b) it must be that that information was the reason or part of the reason for the decision. That is too simplistic an analysis ... whilst in some cases an 'unbundling is necessary' in order sensibly to apply section 424A to the expressed reasons of the Tribunal, here the reason for the decision is plain. The Tribunal having read all the material and having evaluated its content and weight was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply, and no more than, evaluative conclusion founded on the perceived inadequacy of the information in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was a reasonable part of the reason for the decision. It was the lack of requested further assistance and explanation that was the reason.’

    [13] In my view, looking at the Tribunal's reasons here, those comments equally apply here. The only question as to whether or not leave should be granted would be to argue that those reasons in SZEZI misstate the law in a case such as this in relation to the operation of s 424A.”

    On any plain reading of the Tribunal’s reasons for its decision it is clear that the Tribunal did not rely on any information, as that term is understood and as it relates to s.424A(1). Simply the Tribunal was unable to reach the requisite level of satisfaction as to the applicant meeting the test of a well founded fear of persecution for the purposes of the Refugee's Convention.

15. The applicant complains in written submissions (a complaint possibly linked to ground one of the amended application) that in response to his letter sent to the Tribunal (that was typed by his migration agent and signed by him), which stated that he had no other material to present to the Tribunal, he expected that the Tribunal would still write back to him and inform him firstly of country information and secondly other material “that they may put to me for comment”. First, the applicant appears to argue that the Tribunal relied on independent country information used by the Minister’s delegate (as set out at CB 38 to CB 39) and that he expected that the Tribunal would write to him in this regard. In terms of any obligation under s.424A(1) it is clear that the Tribunal's decision, when plainly read, did not rely on any independent country information as part of its decision. Simply as set out above the Tribunal, on what the applicant had put before it, was unable to reach a requisite level of satisfaction that a visa should be given to the applicant. No obligation arises pursuant to s.424A(1) in relation to this country information. Second, it is not clear what “any other material they may put to me for comment” refers to. The applicant before me was unable to add to this claim. If this is a reference to the applicant’s expectation that the Tribunal write to him about the information provided in his protection visa application, then I cannot see that the Tribunal relied on any such information. Such information would not come within the requirement to have been put to the applicant pursuant to s.424A(1). If however, the applicant means by this that the Tribunal should have put to him, for comment, its inability to be satisfied on what had been put before it prior to the making of its decision, then plainly the Tribunal did this in its letter of 9 December 2003, which the applicant confirms he received from the Tribunal. But even on any application of procedural fairness principles at general law, I cannot see any failure on the part of the Tribunal in this regard.

1. Further, in terms of his complaint of a breach of natural justice, the applicant accepts by way of his written submissions that the Tribunal invited him to a hearing by way of its letter of 9 December 2003. On the second page of his written submissions he states, in a claim which appears to be contradictory and in relation to which the applicant did not provide any further explanation at the hearing before me, that “when the Tribunal invited me to attend a hearing I was not aware that an interview is to be given to me and I was not aware that the Tribunal wanted more information”. The applicant does not dispute that he received the letter inviting him to a hearing. He has provided no evidence whatsoever that he was misled by his agent when he signed the letter in response to the Tribunal (CB 51). He claims he was not aware that the Tribunal wanted more information yet the letter that he signed says that he had no other materials to present to the Tribunal and specifically asks the Tribunal to assess the application on the “material available”. There is no evidence before Court of any fraud by the agent nor, even, that the agent acted in any inappropriate fashion, or incompetently. Any inference in that regard in the applicant’s submissions therefore cannot be sustained on the basis of the evidence presented to the Court.

2. To the extent that the applicant now also claims that the Tribunal failed to deal with his case properly given that he was an Alawi and that this would attract difficulties presumably from “the Sunni clerics”, there is nothing in the material before the Court now to show that any such claim was made to the Tribunal. The Tribunal dealt with what was put before it by the applicant himself. I cannot see any failure on the part of the Tribunal to deal with any claim made by the applicant, nor is any such claim, as it goes to the issue of his fear of persecution, put now to the Court, able to assist the applicant in showing error on the part of the Tribunal.

3. To the extent that the applicant complains in his submissions about not having been given an opportunity to attend an interview before the first respondent's delegate, it is clearly not relevant to show an error on the part of the Tribunal. Even if such an obligation existed and the delegate failed to provide this opportunity, the applicant clearly applied for a de novo merits review with the Tribunal and cannot complain about any procedural irregularity or defect in the delegate’s decision, as any such defect would have been “cured” by the Tribunal's conduct of the review and its decision (Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248 and Minister for Immigration & Multicultural Affairsv Ahmed [2005] FCAFC 58).

4. To the extent that the applicant now also complains that the Tribunal posed questions in its decision record, it appears that this is a reference to the Tribunal's decision record at CB 59.7 to CB 60.2. The applicant appears to assert that this part of the Tribunal's decision record should have been put to him for comment before the Tribunal made its decision. This complaint, if indeed this is the complaint now being made by the applicant, is misconceived. This part of the decision record clearly is the Tribunal setting out some specific areas and issues about which the applicant had not provided detail and which led it to being unable to reach the requisite level of satisfaction. The applicant had been put on notice that the Tribunal could not be satisfied and the opportunity for him to address this issue was provided at the hearing with the Tribunal. Further, he was provided with the opportunity to put other submissions to the Tribunal as set out in its letter of 17 July 2003 (CB 47.4 - “immediately send us any documents, information or other evidence you want the Tribunal to consider.”, under the heading of “What does the Tribunal expect me to do?”). Further the letter of
   9 December 2003, containing the invitation to the hearing, also made a reference to:

   “… send us any new documents or written arguments you want the Tribunal to consider;”

   The applicant had ample opportunity to put forward his claims, was on notice that the Tribunal could not be satisfied on what had been put before it, chose not to attend the hearing (with the assistance of an adviser), and did not submit any other documentary evidence in support of his claims or make written submissions, which he was specifically invited to do. The applicant cannot now complain that he was denied any opportunity or that there was any obligation on the Tribunal to put to him, for a second time, its concerns about the paucity of information that he had provided.

5. In his second ground of complaint the applicant states that he now seeks to rely on information, which he gave to the first respondent, which he would have relied on and given to the Tribunal if he had been asked to do so. This appears to be a reference to information contained in the letters written to the Minister for Immigration on 15 March 2004, 19 February 2005 and 14 January 2005. All these letters appear to relate to the applicant's request for the Minister to intervene pursuant to s.417 of the Act and provide a more favourable outcome to him. In one pertinent sense this ground is directed to the merits of the Tribunal's decision and seeks impermissible merits review (Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259). On what is before me, I agree with the respondent's submissions that this ground can properly be characterised as an attack on the findings of the Tribunal as they related to the merits of the applicant’s claims. The applicant seeks to rely on information which he said he provided to the Minister and would have given to the Tribunal had he been asked to do so. The information, on its face, clearly was not put to the Tribunal. In fact, the letters were created after the making of the decision by the Tribunal. Further and importantly, if the applicant wished to have put this information before the Tribunal he has provided no explanation for his failure to do so, a failure which stands in the face of specific invitations from the Tribunal to provide additional submission or argument in support of his claims (even in a documentary state). Further the applicant himself stated to the Tribunal, in his letter of 19 January 2004:

   “I have no other material to present to the RRT.” (CB 51)

   Nor can I see, in the circumstances of this case, that there was any obligation on the Tribunal to do anything more to seek more information from the applicant.

6. The applicant's third ground in the amended application is a request for the Court to “hear this matter”, even though it does not fall “within 28 days”, and provides as the explanation for delay that he wrote to the Minister seeking intervention and that this request was denied. Clearly, the Court did hear the applicant's case with a view to seeing whether the Tribunal's decision was infected with jurisdictional error or not. To this extent the applicant's request, as embodied in ground three, was met. Beyond that however, the complaint or the request in ground three appears to misunderstand the nature and extent of judicial review of the Tribunal decision. As I explained to the applicant, when he appeared before me, the Court does not have the power to substitute a more favourable visa outcome. In the context within which the applicant states that he lodged the application with the Court, that is, following the denial of Ministerial intervention, the applicant's attempt now to put information, that he put to the Minister, before the Court, does not assist. The Court cannot stand in the shoes of the decision maker and provide a protection visa to the applicant. This information does not go to show jurisdictional error in the Tribunal's decision.

7. It short therefore the applicant, following the denial of his protection visa application, sought review by the Tribunal and was given the opportunity by the Tribunal, after having been put on notice that what he had put before it was not sufficient for a favourable decision, to come before the Tribunal and provide evidence and argument in support of his claims. He chose, with the assistance of an agent, not to attend the hearing. There is no evidence before the Court that the applicant was misled by his agent as to the nature of the opportunity that was being provided by the Tribunal nor that he was misled in anyway in the letter that he confirms that he signed to the Tribunal consenting to the Tribunal making its decision on the “material available”. I cannot accept the applicant's complaint now, on the material before the Court, that there would have been an expectation that the Tribunal would have acted other than to proceed to make a decision on what was before it. As the Full Federal Court has described in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287, a failure to attend a hearing in such circumstances leads to the “inevitable consequence” of the application being unsuccessful. The application to the Court does not reveal jurisdictional error on the part of the Tribunal. Nor can I see any such error arising from the applicant’s written submissions and nor for that matter can I see any other basis for finding jurisdictional error in the Tribunal's decision. As the decision is not infected with any such error the application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Nicholls FM.

Associate:

Date: 24 August 2006