SZGRH v Minister for Immigration
[2006] FMCA 138
•24 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGRH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 138 |
| MIGRATION – Mongolian applicant – did not attend Tribunal hearing – invitation sent to agent as authorised recipient – Tribunal entitled to proceed without a hearing – relevance of misconduct by agent – no jurisdictional error found. |
Migration Act 1958 (Cth), ss.424A, 426A(1), 441A(4), 441G, 474, 483A, 494D
Acts Interpretation Act 1901 (Cth) s.8
Judiciary Act 1903 (Cth), s.39B
Migration Litigation Reform Act 2005 (Cth) Sch.1 cl.41
Song v Minister for Immigration [2005] FMCA 685
VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407
| Applicant: | SZGRH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1767 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 24 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 24 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms Burnett |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4000
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1767 of 2005
| SZGRH |
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 6 July 2005 under s.483A of the Migration Act 1958 (Cth). It seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated 24 May 2005 and handed down on 14 June 2005. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and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 jurisdiction under s.483A is the same as the Federal Court’s jurisdiction under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act, which have the affect that I cannot set aside the Tribunal decision and send the matter 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 qualifies for a protection visa or any other permission to stay in Australia.
The present applicant arrived in Australia on a business visa in January 2005. On 7 February 2005 she lodged an application for a protection visa assisted by a person who was then a registered migration agent, Mr Zahirul Hoq Mollah. Her application requested that communications about the application should be sent to Mr Mollah. The application was completed with only cursory information in support of a claim for protection in Australia from return to her country of nationality, Mongolia.
In answer to the question
Why did you leave the country?
the applicant said:
Chinese background and Lesbian. In Mongolia as a Chinese background I am discriminated as well as I am a Lesbian. So, totally its been very hard to live in my country. They never accept lesbian people but its natural. They attacked me to kill and continuously threatened to kill me. That’s why to save my life I left my country. I will provide later details.
In answer to a question:
Who do you think may harm/mistreat you if you go back?
she said:
1. Extremist people
2. Authority
3. Religious group
No better details or information was contained in or with the visa application, and no supporting evidence was later provided either to the Department nor subsequently to the Refugee Review Tribunal.
A delegate refused the application on 28 February 2005. The delegate's reasons drew attention to the fact that the applicant had:
failed to reveal what would normally be considered important facts. Her claims are uncorroborated and much of the information she has provided is vague, broad and lacking in relevant detail.
In addition, the delegate referred to country information concerning the treatment of same sex relationships in Mongolia, and was unable to find that the applicant had a well-founded fear of persecution.
On 27 March 2005 an application for review by the Tribunal was lodged. The application form gave a residential address for the applicant, with a mobile telephone number, and it also contained an authority for Mr Mollah to act for the applicant in relation to her application. In the form, the applicant nominated her agent as a person to receive correspondence in connection with the review. The form clearly indicated that where this was requested: “all correspondence will be sent to this person”. The form also contained a request that correspondence be sent to the applicant's residential address.
The Tribunal sent an acknowledgement of the application to Mr Mollah by letter dated 30 March 2005. The letter warned that as a result of his “appointment to receive correspondence on (the applicant’s) behalf, no further correspondence will be sent to (the applicant). It is important that you tell the review applicant about all future correspondence.”
A further letter dated 21 April 2005, was sent to Mr Mollah. It again noted 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.” The letter informed the applicant and her 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 invited the applicant to come to a hearing to give oral evidence and present arguments. The hearing was appointed for 23 May 2005. It said:
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.
A printout from the Tribunal's case management record contains the following entries by the case officer in relation to 17 May 2005 and 19 May 2005:
17/05/05 Trying to call the AR for the last few days to find out whether the applicant will attend the hearing or not. Each time I call there is an answering machine on. First time (on 13 May 2005) and left the message to return my call. Have tried few times again but to no avail. Now the answering machines also says that the ‘memory is full’. Movement records show the applicant is still in Australia. No Reply check completed.
On Member’s request called applicant on his mobile to follow up (see comments box of 17/5/05) and left my contact details on “missed call service” as per directions.
In its statement of reasons, the Tribunal refers to the sending of the invitation, and that no response was received. It said:
On 21 April 2005 the Tribunal wrote to the Applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the Applicant to give oral evidence and present arguments at a hearing on 23 May 2005. The Applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on her case without further notice. No response was received and as at the date this decision was signed, the letter had not been returned unclaimed. The Applicant has not provided a contact number and the Tribunal’s various attempts to contact the Applicant’s Authorised Recipient (and registered migration agent) were unsuccessful. The Applicant did not appear before the Tribunal on the day and at the time and place at which she was scheduled to appear. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the Applicant to appear before it.
The Tribunal's conclusion as to the merits of the application were unsurprising in view of the lack of information given to it. It said:
In this case the Tribunal accepts that the Applicant is a citizen of Mongolia as claimed and as supported by a copy of some pages of her Mongolian passport. The applicant claimed that she was attacked and threatened because she is a lesbian and of Chinese background and she fears being killed for the same reasons if she returns to Mongolia. However the Tribunal is not satisfied that the Applicant has a well-founded fear of persecution within the meaning of the Convention. This is because the Tribunal finds the Applicant’s claims very general and lacking in useful detail. For example, there is no useful information at all about her claims to be a lesbian or of Chinese background, or about having been attacked and continually threatened, or about the people she refers to as “they” who she fears will kill her if she returns. Although the Applicant wrote, in relation to these issues, that details would be provided, and she has had assistance of her registered migration agent in applying for a protection visa and in seeking review, she did not provided any further information to the Department or to the Tribunal. The Tribunal cannot be satisfied, on the information before it, that the Applicant has a well-founded fear of persecution within the meaning of the Convention.
The application filed in this Court on 6 July 2005 gives only a list of general heads of jurisdictional error, without indicating any particulars which would make them referrable to the present Tribunal's decision. I do not consider they have been given any substance at all. They include allegations of bad faith, denial of natural justice, failure to consider evidence and failure to make inquiries.
An amended application filed on 17 October 2005 contains some general claims of a similar sort. There is no substance to the assertions that the Tribunal's decision “was not based upon reasoning which provided a rational or logical foundation” and that it “failed to consider my claims with the proper way which the Migration Act 1958 provided”. There are also complaints about the Tribunal's use of country information, but plainly its decision was not based on such information, but was based upon the Tribunal’s inability to be satisfied by the information given by the applicant.
The amended application also contains the statements:
It is true I did not collect more relevant documentary evidence to prove my persecution. Because I have no one to help me to collect more documents.
…
I did not get an opportunity to attend the Tribunal hearing because I did not informed by the Tribunal hearing properly. The hearing invitation letter did not serve properly to me.
...
The Tribunal is required by S425 of the Act to invite the applicant to appear before it give evidence and present arguments. S425A requires that notice of the day on which, and the time and place.
Section 494D defines an, 'Authorised recipient' as a person who is authorised to receive correspondence, 'on behalf of' an applicant. The Minister is not required to send correspondence to the applicant. When I lodged my review application to the Tribunal I clearly stated that I wished all correspondence to be sent to my residential address, which was given on the form.
This contention erroneously identifies s.494D as the relevant provision in relation to service by the Tribunal on an authorised recipient. The correct section is 441G, which provides:
(1) If:
(a) a person (the applicant) applies for review of an RRT-reviewable decision; and
(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Note: If the Tribunal gives a person a document by a method specified in section 441A, the person is taken to have received the document at the time specified in section 441C in respect of that method.
(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
In my opinion the terms of this section are clear. The Tribunal is required to serve an authorised recipient “instead of the applicant”. It is entitled, but not required, to send documents to an applicant also. However, in my opinion, where notice of an authorised recipient is given under s.441G(1), a failure to send correspondence to an applicant will not prevent that provision taking effect, even if the applicant has requested that correspondence be sent to both locations (see Song v Minister for Immigration [2005] FMCA 685 at [29]- [35]). This is the consequence of the clear language of s.441G(2). Where the Tribunal has served an authorised recipient according to the methods provided in s.441A(4) and reg 4.35D, the Tribunal “is taken to have given the document to the applicant”.
The effect of an applicant's failure to appear in response to an invitation, duly served on an authorised recipient, is that the Tribunal's power to proceed without taking further action under s.426A(1) is made available to it.
In the present case I am satisfied that the Tribunal did have that power due to service of the invitation on Mr Mollah. I do not consider that the Tribunal's decision to proceed under that section was affected by any material error giving rise to jurisdictional error. There is now abundant authority that the Tribunal is entitled to proceed under s.426A(1) once its preconditions are satisfied, even if in fact an applicant did not receive actual notice of a hearing (see, for example, VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 at [14-16]).
I therefore conclude that the contentions raised in the amended application do not make out a ground for setting aside the Tribunal decision.
The applicant's case was listed for hearing on 16 January 2006, but was adjourned due to the presentation by the applicant of a medical certificate indicating a referral to a specialist for a medical problem. She has, however, attended the adjourned hearing today and I have heard her submissions.
She made no claim that the Tribunal was, or should have been, aware of circumstances which should have caused it to follow a different procedure. She did, however, claim that she had given to Mr Mollah documents in support of her claim, which he had failed to send to the Department and Tribunal, and which she was now unable to recover from him. She said it was difficult to get further documents from Mongolia to replace these. She also said that she had been told by Mr Mollah about the proposed hearing by the Tribunal, but had been told by him that she did not need to be present at the first hearing, and she said that his advice was the reason she did not go. She claimed that he said that she would be able to attend a second hearing, and would then be able to say whatever she wanted. I note that according to the web site of the Migration Agents Registration Authority, Mr Mollah's registration was cancelled on 6 June 2005 and an appeal to the AAT was dismissed after it was withdrawn on 28 October 2005, but there is no evidence that this was based upon any complaint concerning the applicant’s matter.
These claims of misconduct by Mr Mollah were not given on oath, and I do not need to rule upon whether they are true. In my opinion, assuming their truth, they do not give rise to jurisdictional error in the Tribunal affecting the Tribunal’s decision to proceed under s.426A(1), for the reasons which I have explained above.
The claimed circumstances of the applicant's reliance on Mr Mollah's defective assistance may give rise to a special circumstance which she could present to the Minister in support of a request for special intervention, but in my opinion they do not allow me to give her relief that she seeks in the present matter.
The applicant also told me that her medical problem has given rise to appointments for medical treatment in March 2006 which she wishes to receive. However, that circumstance does not provide a proper reason for me to delay making my decision in this case. It may or may not allow the applicant to make further applications to the Minister, but this is a matter upon which she should obtain her own advice.
For the above reasons I have not been satisfied that the Tribunal's decision was affected by jurisdictional error. It is therefore a privative clause decision under s.474(1), and I am obliged to dismiss the application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 10 February 2006