SZGVJ v Minister for Immigration
[2006] FMCA 199
•03 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGVJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 199 |
| MIGRATION – RRT – Pakistani claiming political persecution – invitation to hearing sent to authorised recipient – applicant did not attend hearing – Tribunal not satisfied as to claims – no error found. |
Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R, 422B, 424A(1), 426(1), 426A(1), 425A, 426A(1), 441A(4), 441C(4), 441G, 441G(1), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
SZECV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200
| Applicant: | SZGVJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1969 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 03 February 2006 |
| Delivered at: | Sydney |
| Delivered on: | 03 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms T Quinn |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The applicant’s solicitor, Chandra Jayawardena, has leave under r.9.03(2) to file a notice of ceasing to act.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $2,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1969 of 2005
| SZGVJ |
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 26 July 2005 under s.483A of the Migration Act 1958 (Cth), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated 20 June 2005 and handed down on 12 July 2005. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of the present proceeding (See Sch.1 cl.41 of the amending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 jurisdiction under s.39B of the Judiciary Act 1903 (Cth). This is 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 unless I am satisfied that the 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 or any other permission to stay in Australia.
The applicant arrived in Australia on a three month temporary business visa in November 2004. An application by him for a protection visa was lodged on 16 December 2004. The application did not disclose any migration or other agent who had assisted the applicant.
A typed statement attached to the application explained why the applicant was seeking protection in Australia so that he did not have to return to his country of nationality, Pakistan. He said that he had joined the Pakistan Muslim League when it held power in Pakistan, and “got appointed as the financial secretary in my residential area”. In 1999 the present President of Pakistan deposed the previous President, who had been supported by the Pakistan Muslim League. The applicant claimed that government agencies then arrested “the majority of active leadership and active workers” of the League on charges of embezzlement, murder and act of terrorism. He said:
12. I also faced the worst time of my life as the government agencies followed me very actively. I fled to a secret refugee and my household got many raids of law enforcement agencies at my home. They manhandled and abusively dealt with my household each time
13. The elders of my family contacted to the law enforcement agencies office and asked the reasons of raids. They informed of my inclusion in several First Information Report (FIR) with the severe charges of murder and embezzlement of funds.
He also became “engaged in furthermore troubles, a case of embezzlement of funds taken by some industrialists”. Although he changed his residence, false cases were brought against him, and he was arrested by police, gaoled for two months, tortured mercilessly, assaulted, punched and hit with wooden batons and rods. After he was released on “as a conditional bail” he obtained an Australian visa. He “left Lahore Airport safety with the help of one of my relatives working there at the airport at the time of my departure”.
No details of any of these claims was contained in his statement, nor was any supporting evidence ever provided to the Department nor subsequently to the Refugee Review Tribunal.
A delegate refused the application on 24 March 2004 and posted to the applicant, at his own residential and postal addresses in Griffith, a statement of reasons which drew attention to the absence of details of his claims.
On 19 April 2005, an application for review by the Tribunal was lodged. It informed the Tribunal that the applicant authorised a migration agent as his authorised recipient for correspondence in connection with the review. That person was Mr Zahirul Hoq Mollah.
The form was filled out so that, rather than identifying one address to which correspondence was requested to be sent, the Tribunal was requested to send correspondence to Mr Mollah and also to a post office box at Griffith. However, the legislation applicable to the sending of notices contains, in s.441G(1), a direction to the Tribunal that if an applicant gives notice of the name and address of an authorised recipient:
The Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Sub-section (2) of s.441G provides:
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, there is nothing in the legislation that requires the Tribunal to send correspondence to an applicant as well as his authorised recipient, even if an applicant indicates a wish that this happen (c.f. Song v Minister for Immigration [2005] FMCA 685). There was nothing in the circumstances in this particular proceeding which in my opinion gave rise to any such obligation based on any implied procedural duties, assuming that they could survive s.422B of the Migration Act so as to extend the Tribunal’s obligations beyond s.441G(1).
The Tribunal in a letter dated 21 April 2005 acknowledged receipt of the application by a letter sent to the agent. This contained a clear warning to the agent:
As the authorised recipient, all correspondence on this case will be sent to you as requested by (the applicant). Please note that after this acknowledgement or lodgement of this review application and your 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.
By letter dated 17 May 2005, the Tribunal informed the applicant that it had considered the material before it but was unable to make a decision in his favour “on this information alone”. The letter invited the applicant to attend a hearing on 17 June 2005, and informed him:
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.
The letter was sent to the agent with the clear indication:
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.
The Tribunal in its statement of reasons for affirming the delegate's decision stated:
The Applicant provided no further comments or information with his review application on 19 April 2005.
On 17 May 2005 the Tribunal wrote to the Applicant’s authorised recipient, advising that it had considered all the material before it relating to the Applicant’s application but that 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 17 June 2005. He was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.
The Applicant did not attend at the time and date set down for the hearing and nether he not his authorised recipient have made any further contact with the Tribunal
The written notice of hearing has not been returned by the Post Office and there is no suggestion that the address of the authorised recipient (or of the Applicant) has changed. In all the circumstances, the Tribunal is satisfied that it has discharged its obligation to provide the Applicant with the opportunity to give oral evidence and present arguments before it. 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.
Section 426A(1) gave the Tribunal the power to “make a decision on the review without taking any further action to allow or enable the applicant to appear before it” if the applicant had been “invited under s.425 to appear” and did not appear on the appointed day. The requirements for the service of an invitation are found in s.425A and, in relation to a posted invitation, ss.441A(4), 441C(4) and reg 4.35D. These provisions specify prescribed periods of notice and the contents of a notice, and I am satisfied that they were complied with in the present case.
As I have indicated, s.441G has the effect that compliance with those provisions when posting the invitation to the authorised recipient is deemed to establish service on the applicant himself.
In relation to the merits of the matter, the Tribunal's reasons referred to some background information in relation to Pakistan, and to the applicant's claims and the contents of his visa application. The Tribunal referred to the difficulty facing a Tribunal to satisfy itself that an applicant has a well founded fear of persecution in the absence of an opportunity to obtain further information from him at a hearing. It referred to the absence of details of various aspects of the applicant's claims and the need for some explanation of some aspects of his application. It concluded:
In the circumstances, and on the evidence before it, the Tribunal is not satisfied that the applicant's experiences and circumstances are as claimed.
Plainly, in my opinion, this reasoning and conclusion were open to the Tribunal as a matter of law, and I can find no jurisdictional error affecting its decision to affirm the decision of the delegate.
The Tribunal's decision was handed down and posted to Mr Mollah, and not to the applicant himself. Within 14 days, the applicant filed in this Court an application for review of the Tribunal decision. It adopts a frequently seen precedent, which is a recitation of general allegations of jurisdictional error and challenges to the merits of the Tribunal's decision, without any particulars. These include allegations that “the Tribunal made its decision in bad faith”, and “the Tribunal deprived me of the natural justice”.
The applicant today has told me that he received the Tribunal’s decision from Mr Mollah, and that Mr Mollah helped him to bring the present application to the Court. He has also filed an affidavit swearing:
After filing this RRT application, I was aware that Mr Mollah will take all the necessary steps that would be required to be taken in connection with that application. At no stage after filing this application to RRT, I was ever informed by Mr Mollah that I had been asked to attend a hearing to be conducted by the member of the Tribunal on 17 June 2005.
The applicant maintained in his submissions to me today that he was not told by Mr Mollah of the invitation to the hearing, and he claimed that he was therefore deprived of a hearing to which he was entitled.
However, as I have explained above, even if this was true, the Migration Act allowed the Tribunal to proceed under s.426A(1) without making any further action to allow the applicant to attend. The authorities are now clear that compliance with the provisions in relation to service of an invitation empowered the Tribunal to proceed under s.426A(1), and the Tribunal made no jurisdictional error when so proceeding, even if the Court were satisfied that the applicant did not actually receive notice of the hearing (see VNAA v Minister for Immigration (2004) 136 FCR 407 at [16]).
In view of the clear law in this respect, it is not necessary for me to investigate and make findings as to the truth of the applicant's claim not to have been told of the hearing. I note, however, that this seems inconsistent with the applicant's speedy communications with Mr Mollah subsequent to the Tribunal's decision, and with his continuing to obtain assistance from him in this court. No affidavit from Mr Mollah has been filed.
The present application was listed at a first Court date before me on
23 August 2005, where the applicant appeared in person, and I directed him to give particulars of his grounds of review and any evidence. He then engaged a solicitor, Mr Jayawardena, who on 24 November 2005 filed an appearance, an amended application and the affidavit to which I have referred above.
Mr Jayawardena appeared before me at a directions hearing on 13 December 2005, at which I listed the matter for today. I directed an outline of submissions to be filed 14 days before the hearing. No such submission was filed.
On 30 January, four days ago, Mr Jayawardena sent a facsimile to the Court's registry, being a purported notice of ceasing to act attaching letters sent to the applicant. One was sent in December 2005, informing the applicant of the hearing date today and of the directions I had made, and the other was sent on 24 January 2006 indicating an intention to cease to act. The letters did not establish compliance by Mr Jayawardena with r.9.03(3)(b) by giving notice to the applicant of the need to appoint another lawyer or notify the Court of an address for service. The notice of ceasing to act was therefore not accepted by the Registry and Mr Jayawardena was told to attend today. He did attend, and I drew his attention to his obligations under the Rules and gave him leave to file the notice of ceasing to act nunc pro tunc.
The applicant also attended and has been assisted by an interpreter. He made the submissions which I have dealt with above.
I should also deal with the grounds which were contained in the amended application filed by Mr Jayawardena. This did not include any contention that the Tribunal's decision to proceed under s.426A(1) gave rise to jurisdictional error.
The amended application contains three grounds where the Tribunal is alleged to have committed jurisdictional error. The first was:
(A) AVOIDING TO CONSIDER PRIMARILY whether there would be a real chance that the applicant's life will be in danger” if asked to return to his country of origin, Pakistan. This failure was in clear breach of s.91(1)R (sic) of the Migration Act 1958.
There is no merit in this contention. The essential reasoning of the Tribunal was, as I have indicated, that it could not be satisfied as to the truth of the claimed history given by the applicant. There was therefore no occasion for the Tribunal to enter into further examination of the application's real chances of suffering further persecution, nor to discuss the application of s.91R.
Grounds (B) and (C) contend failures by the Tribunal to comply with duties under s.424A(1) to invite written comment on information used by the Tribunal as part of its reasons for affirming the delegate's decision. However, no information was used by the Tribunal which it was required to put to the applicant in such a notice. The Tribunal's essential reasoning was that it could not be satisfied that the claimed experiences and circumstances had happened to the applicant, based on the absence of details in either documentary or oral form. I do not consider that the Tribunal's reasoning was based on omissions in his original statement, in the manner discussed by Allsop J in SZECV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200.
I therefore do not consider that any of the grounds in the amended application are made out.
For the above reasons, I have not found jurisdictional error affecting the decision of the Tribunal. It is therefore a privative clause decision for which relief is barred under s.474(1) of the Migration Act and I must dismiss the application.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 15 February 2006