SZGLA v Minister for Immigration

[2006] FMCA 1536

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGLA v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1536

MIGRATION – RRT decision – Indian claiming persecution for political opinions and religion – did not attend hearing – invitation sent to agent and not to applicant – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8
Migration Act 1958 (Cth), ss.424A(1), 424A(3)(b), 425, 425A, 426A(1), 441A(4), 441C(4), 441G(1), 441G(2), 474, 483A

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Migration Regulations 1994 (Cth), reg.4.35D

Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73
Song & Anor v Minister for Immigration [2005] FMCA 685
SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110
SZGRH v Minister for Immigration & Anor [2006] FMCA 138
SZGVJ v Minister for Immigration & Anor [2006] FMCA 199
SZHHK & Anor v Minister for Immigration & Anor [2006] FMCA 767

Applicant: SZGLA

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1394 of 2005

Judgment of: Smith FM

Hearing date: 27 September 2006

Delivered at: Sydney

Delivered on: 27 September 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Ms G Broderick

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $3,800. 

3. These orders shall not take effect until 31 October 2006. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1394 of 2005

SZGLA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 30 May 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 13 April 2005 and handed down on 5 May 2005.  The Tribunal affirmed a decision of a delegate made on 7 October 2004, refusing to grant a protection visa to the applicant. 

2. Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and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).

3. Under s.483A the Court’s powers are limited by s.474 of the Migration Act, so that I do not have power to send the case back to the Tribunal unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa. I do not have power to order the Tribunal to allow the applicant a further opportunity to attend a hearing, unless I am satisfied that it failed to follow procedures required by law.

4. In the present case, the applicant arrived in Australia in August 2004, and lodged an application on 22 September 2004 for a protection visa.  His application appointed a migration agent, Mr Mollah, as his authorised agent to act and receive communications on his behalf.  The application form promised to send “relevant documentary evidence to prove my claims”, but supporting material was never sent, either to the Department or on appeal to the Tribunal. 

5. A handwritten statement attached to the visa application contained the applicant’s claims to protection in Australia against return to his country of nationality, India.  The statement contained a history of personal misfortunes over many years.  The applicant claimed that he had joined the DMK political party in Tamil Nadu in 1978 as a result of his interest in social work.  However, he claimed that: 

   After two years they (the Hindu people in the party) did not like me.  I also came to know that they were eating the people’s money and I was the only Muslim in that party in that area. 

6. The applicant claimed that “they”, and one named person in particular, had then caused him to suffer a series of family tragedies, including his sister’s eloping with a Christian, his father’s death after his house was attacked, a sister’s suicide, his mother’s death after being hit on the head by the police, another sister’s eloping with a “Muslim guy”, his brother having “also chased me out of the house”, and, finally, his wife dying when his house was “set with fire” in 1998.  He claimed then to have lived in different parts of India in impoverished circumstances before coming to Australia.  Details of all these events were not provided, and no corroboration was given. 

7. The delegate, in a decision that was sent both to the applicant and his agent, said that he was not satisfied “that the applicant has substantiated a connection of his fear with any of the Convention reasons”. 

8. The applicant’s application for review by the Tribunal was lodged by Mr Mollah.  It gave the applicant’s residential address in Surry Hills, Sydney, but no telephone numbers for the applicant.  It identified Mr Mollah as his “advisor you authorise to act for you in relation to this application”. 

9. In relation to the sending of correspondence, the form was filled out by Mr Mollah in a manner contrary to its clear intentions, by two boxes being ticked in response to the question: “where do you want us to send correspondence about your application?”  A box stating: “my residential address in Australia” is ticked, as is a box saying: “I authorise the following person to receive correspondence in connection with the review … my advisor”.  

10. The application attached the same statement which had been attached to the protection visa application, but it was typed as well as being signed by the applicant. 

11. By letter dated 1 November 2004 sent to both the applicant’s home address and his agent, the Tribunal acknowledged the application and explained that the applicant might be invited to a hearing.  It also invited the applicant to send further documents to the Tribunal. 

12. By letter dated 21 February 2005, the Tribunal wrote to the applicant’s agent.  The letter said:  

    As the authorised recipient, all correspondence on this case will be sent to you as requested by [the applicant].  Please note that [the applicant] has not been sent a copy of this letter.  It is important that you tell the review applicant about the contents of this letter. 

13. The letter contained an invitation to the applicant to attend a hearing on 12 April 2005.  The letter informed the applicant and his agent: “the Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone”.  The letter requested the applicant to inform it whether he would be attending.  It invited him to send further information, and also informed the applicant and his agent: “if you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice”. 

14. Case management notes prepared by an officer of the Tribunal indicate that “no reply to hearing invitation form” was returned to the Tribunal, and that in the week before the appointed hearing the officer attempted to telephone the agent to find out if the applicant was attending the hearing.  A note says “nobody answered the phone”.  As I have indicated above, the Tribunal was not given a personal phone number for the applicant. 

15. It appears that there was no attendance at the appointed hearing, but the Tribunal attempted to make further enquiries.  A case management note by a Tribunal officer dated 6 May 2005 states:  

    12‑4‑05  Called advisor to find out why the applicant did not attend the hearing.  The advisor was not sure about the date and time of the hearing, because he asked me the time of the hearing, the name of the applicant and the file number.  Told advisor the hearing letter was sent on 21‑2‑05 and I called him last week regarding the hearing, but his phone was never answered.  Advisor said that is because he is always busy and is out a lot.  Told him if he wants to send a written statement or a submission he should send it asap, otherwise the Member will make the decision.  Advisor said he will send a letter today. 

16. In its statement of reasons, the Tribunal referred to the above history of the matter, and noted that no communication was in fact received from the applicant’s agent before the decision was handed down on 5 May 2005.  The Tribunal noted the absence of the applicant at the appointed hearing, and said:  

    In these circumstances, and pursuant to s.426A of the Act, I have decided to make a decision on the review without taking any further action to enable the applicant to appear before me.  I have before me the application to the Tribunal and the Department’s file, which includes the protection visa application and the delegate’s decision record. 

17. The Tribunal then extracted the claims made by the applicant in his statement, and said: “based on the insufficient detail he provided, the Tribunal is not satisfied the applicant invokes protection obligations in Australia”. 

18. The Tribunal referred to the absence of various significant details and to the need for the Tribunal to be satisfied by an applicant that all of the statutory elements for the grant of protection were made out.  The Tribunal concluded:  

    Accordingly, based on the claims he has provided, the Tribunal is not satisfied all the statutory elements of the grant of protection are made out.  Again, based on the evidence currently before me, I am not satisfied the applicant is a member of the DMK in India, that he was attacked by political or other opponents, that he was declined effective State Protection, that he previously attempted to relocate to safety within India, that his children are in an orphanage, or that as a result he fled to Australia.  Further, nothing the applicant has submitted has satisfied me that any of his material claims give rise to protection obligations in Australia.  Accordingly, I do not accept the applicant has a well founded fear of persecution arising for the reasons he claimed in India. 

19. I have considered the reasons and the procedure followed by the Tribunal, and am unable to find any arguable jurisdictional error affecting the Tribunal’s decision. 

20. The applicant’s original application in this Court adopted a precedent commonly seen.  It alleges bad faith, deprivation of natural justice, actual bias, failure to consider claims and failure to make enquiries.  However, without any particulars of arguments making those contentions referable to the particular matter, I am unable to identify any substance in them. 

21. The applicant’s amended application argues that the Tribunal failed to follow correct procedures in relation to the sending of the invitation to the hearing, and that this omission resulted in jurisdictional error. I accept that jurisdictional error would have occurred if the Tribunal had failed to follow procedure in relation to the sending of an invitation, however, I consider that it did comply with its obligations under ss.425 and 425A.

22. Under the relevant provisions for the service of invitations to a hearing by post, it is sufficient if the Tribunal sends its invitation to the applicant’s authorised recipient, pursuant to ss.441A(4) and 441G(1) and reg.4.35D of the Migration Regulations 1994 (Cth). Where the Tribunal follows those procedures, the notice is deemed to have been received by the applicant pursuant to ss.441C(4) and 441G(2), even if there was not actual receipt by either the authorised recipient or the applicant himself. On the evidence before me, I am not satisfied that the Tribunal did not follow those procedures, and I consider that it is probable that it did.

23. The contention in the amended application argues: 

    5.The Tribunal failed to exercise its jurisdiction by not observing a procedure which it was required by the Act to observe. 

    Particulars 

    The Tribunal is required by s 425 of the Act to invite the applicant to appear before it to give evidence and present arguments.  S 425A requires that notice of the day on which, and the time and place at which, the applicant is scheduled to appear is to be given, being no less than 14 days from the date when notice is taken to have been received (reg 4.35D). 

    Section 494D defines an “authorised recipient” as a person who is authorised to receive correspondence “on behalf of” an applicant.  The Minister is then not required to send correspondence to the applicant.  When the applicant lodged his application to the Tribunal he listed a Mr Zahirul Hoq Mollah as his “adviser” and authorised him to receive correspondence “in connection with” the review.  However, he clearly stated that he wished all correspondence to be sent to his residential address, which was given on the form (CB 55).  In the circumstances, it cannot be said that he authorised Mr Mollah to receive correspondence on his behalf, that is without the need for it to be sent to him personally. 

    The Tribunal wrote to Mr Mollah on 21 February 05 to notify him of hearing scheduled for 12 April 2005 (CB55). 

    The Tribunal did not send any notice to [the applicant] at his residential address.  In failing to do so it failed to properly notify [the applicant] the hearing. 

24. This seeks to take advantage of the manner in which Mr Mollah completed the application for review, by ticking boxes appearing to request communications to be sent both to the applicant and to Mr Mollah.  However, for reasons which I explained in a reserve decision in Song & Anor v Minister for Immigration [2005] FMCA 685, and have followed in at least three later cases involving Mr Mollah’s practice of completing these forms in this manner (see SZGVJ v Minister for Immigration & Anor [2006] FMCA 199, SZGRH v Minister for Immigration & Anor [2006] FMCA 138, and SZHHK & Anor v Minister for Immigration & Anor [2006] FMCA 767), I consider that the Tribunal has sufficiently followed the requirements of the Migration Act by sending the invitation only to Mr Mollah. I therefore do not accept the contended jurisdictional error.

25. The applicant in an affidavit states without any explanation: 

    6.I did not receive the invitation letter to attend the tribunal to give my oral evidence.  I explain in the grounds of my amended application.  

26. The applicant was not cross‑examined on this statement, and I am prepared to accept that in fact he did not have actual notice of the appointed hearing. However, even if this resulted in what would otherwise appear to be a failure of procedural fairness to the applicant, the provisions of the Migration Act in relation to its power to proceed under s.426A(1) are clear. It has been held that if the preconditions for the exercise of that power have arisen, and if the Tribunal has properly exercised its discretion to proceed to make a decision, then it has no other obligations to make further enquiries or make further efforts to notify the applicant of a hearing (see Minister for Immigration & Multicultural & Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39] and SZDPB v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 110 at [17]).

27. The applicant’s written submission filed shortly before today’s hearing repeated the contentions which I have addressed above. It also argued that the Tribunal had failed to follow procedures required by s.424A(1), which requires the Tribunal in some circumstances to invite an applicant’s comments on information which is “the reason, or a part of the reason, for affirming the decision that is under review”.  

28. The applicant’s submission is that there was such a failure by reason of the Tribunal omitting to tell the applicant the information it received in the telephone call to Mr Mollah on 12 April 2005, which I have referred to above.  In particular, the information suggested that the applicant might not have received notice from the agent, although such an inference is not clear. 

29. However, I do not consider that a breach of s.424A(1) occurred. I accept the submission of the Minister’s representative that, although the Tribunal plainly took into account the contents of the telephone conversation with the migration agent before deciding to proceed pursuant to s.426A(1), it did not take that information into account as a reason for its substantive decision to affirm the delegate’s decision. It was therefore not information coming within s.424A(1).

30. Moreover, if that conclusion were incorrect, the information was given to the Tribunal by the applicant’s agent authorised to act for the applicant “in relation to this application”. In my opinion, this would result in any information conveyed by the applicant’s agent being treated as information given by the applicant for the purposes of the review application within the exclusion of s.424A(3)(b).

31. I have considered all the arguments raised by the applicant in the documents he has filed, and am not satisfied that any of them has established jurisdictional error. 

32. The applicant attended today, but did not have any further submissions to make to me.  He sought “on humanitarian grounds” that I should give him an opportunity to attend a hearing by the Tribunal.  However, as I have explained to him, I do not have that power in the absence of jurisdictional error.  I have pointed out to him that the Minister may have that power, and that he should consider approaching the Minister, if he has not already done so. 

33. The applicant informs me that he is currently in a period of fasting, and may have difficulty obtaining assistance to consider his further options as a result of today’s decision.  In all the circumstances, I consider it is appropriate for me to delay the date of effect for today’s decision until the end of his period of fasting, which is at the end of October. 

I certify that the preceding thirty‑three (33) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  27 October 2006