SZHFW v Minister for Immigration
[2006] FMCA 86
•10 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHFW v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 86 |
| MIGRATION – RRT decision – failure to respond to invitation for additional information – validity of invitation – date when invitation received – effect of invalidity of Reg.5.03 – jurisdictional error in failure to appoint a hearing – four years unexplained delay in seeking judicial review – relief refused. |
| Acts Interpretation Act 1901 (Cth) s.8, 29 Evidence Act 1995 (Cth) ss.5, 160(1) Judiciary Act 1903 (Cth) s.39B Migration Litigation Reform Act 2005 (Cth) Sch.1 cl.41 |
| Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132 Applicant A & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (1997) 190 CLR 225 Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 Applicants M16 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1641 Cabal v Attorney-General of the Commonwealth (2001) 113 FCR 154 Chan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 308 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Das v Minister for Immigration & Multicultural Affairs [2004] FCA 489 Epeabaka v Minister for Immigration & Multicultural & Indigenous Affairs (1997) 150 ALR 397 at 409 H v Minister for Immigration (2002) 118 FCR 153 Haque v Minister for Immigration and Multicultural Affairs (2001) 116 FCR 313 Li v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 219 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 Minister for Immigration & Multicultural & Indigenous Affairs v Singh (2000) 98 FCR 77 Minister for Immigration and Multicultural and Indigenous Affairs v Jing Shan Sun [2005] FCAFC 201 Mohammad v Minister for Immigration & Multicultural Affairs [2000] FCA 466 Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCR 550 NAWR v Minister for Immigration & Multicultural Affairs [2003] FCA 1520 Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 Re Minister for Immigration and Multicultural Affairs, ex parte Miah (2001) 206 CLR 57 Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Applicants S134/2002 (2003) 211 CLR 441 Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 SZDOG v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 213 ALR 439 SZEMB v Minister for Immigration [2005] FMCA 448 VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407 |
| Applicant: | SZHFW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2780 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 20 January 2006 |
| Date of Last Submission: | 30 January 2006 |
| Delivered at: | Sydney |
| Delivered on: | 10 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms K McNamara |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
Application dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2780 of 2005
| SZHFW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 29 September 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 and handed down on 27 January 2000. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A and has restructured the Court’s jurisdiction in relation to migration decisions. However, 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).
Section 483A gives the Court the jurisdiction of the Federal Court 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 that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Applicants S134/2002 (2003) 211 CLR 441 at [15] and [76-7] and subsequent cases). I do not have power myself to decide whether the applicant’s claims should be believed, nor whether he qualifies for a refugee visa.
The applicant arrived in Australia on 1 July 1998, and applied for a protection visa on 12 August 1998. He was assisted by a migration agent, Mr Nelson Shi. His application showed a current residential address in Merrylands, but requested that correspondence be sent to 95/422 Pitt St, Sydney and also to his agent.
A statement attached to the application claimed that he was a national of the People’s Republic of China who travelled to Australia via Vietnam and Cambodia on a false Taiwan passport. He gave a personal history to explain his reasons for leaving China illegally and for seeking protection in Australia. He said that he had been a successful builder since 1983, and had “become sort of rich through contract jobs”. He invested in a brick making factory owned by the government, but “things started to go wrong in the end of 1997”. There was a slow down in local construction, and the government director “believed that I had already gained quite a large sum of money from the early years, and I should use the money to pay the loss the factory face.” He tried to appeal to “any higher government office I could get to and failed”. He “did not accept the arrangement and refused to pay any more”, and the director “started to take avenge on my family”. Because he had a second son, he was sent “a penalty of twenty thousand yuan RMB and stated that it was only for a year, and I had to pay it every year until the child was 18 and able to pay himself.” The applicant refused to pay the penalty, and he“found that all the doors were closed on me and I could not do my business any longer. I had to leave the place to find a way to live and I knew wherever I went in the country I would certainly be caught by the government. I decided to escape from the country.”
A delegate refused the application on 29 September 1998, and notice was sent to the applicant’s Merrylands address and to his agent. The delegate’s reason was that there was no evidence suggesting that the applicant’s difficulties had arisen for a Convention reason.
On 30 October 1998, the applicant lodged an application for review by the Tribunal. His application gave 95/422 Pitt St, Sydney as both his home address and his address for service, and authorised his agent to act for him. The form said that reasons for the application were “to be provided later”. However, no supporting material of any type was ever provided to the Tribunal.
By letter dated 25 November 1999, the Tribunal gave the applicant a notice requesting additional information pursuant to s.424(2). The letter stated:
Notice Under Section 424 of the Migration Act 1958
The Tribunal requests that you provide the following additional information.
·Detailed reasons for claiming to be a refugee as defined by the Convention.
·Detailed reasons for disagreeing with the Department of Immigration’s decision dated 29.9.98.
·Certified copies of your passport from the People’s Republic of China.
·Details of your travel from China to Australia.
·Any supporting evidence.
This information is to be provided in writing, and is to be received at the Tribunal by 16 December 1999. If you have any difficulty providing this information, please telephone Jenny Mason on (02) XXXX as soon as possible, and before 16 December 1999.
IF YOU DO NOT PROVIDE THIS ADDITIONAL INFORMATION BY 16 DECEMBER 1999 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE.
The letter was addressed to the applicant at 95/422 Pitt St, with “cc” to the applicant’s agent. In its statement of reasons, the Tribunal recounted the history of the sending of the letter, its reasons for sending it, and its reasons for exercising a discretion not to invite the applicant to a hearing. I did not understand the applicant to dispute any of the facts recounted by the Tribunal, and I find that in fact the letter was sent to the applicant at his last known residential address by registered post on 25 November 1999. It will be necessary for me to consider the legal implications of this procedure below. The Tribunal said:
On 25 November 1998, the Tribunal wrote to the Applicant inviting him, to provide additional information. The Tribunal asked the Applicant to provide detailed reasons for disagreeing with the Department’s decision. Because his statement did not appear to disclose any problems he had experienced relevant to one of the five Convention-related reasons, the Tribunal also asked the Applicant to outline his reasons for claiming to be a refugee as defined by the convention. The Tribunal also asked him to provide details of his travel from China to Australia and to provide a copy of his passport from the PRC because, notwithstanding his assertion that he had no such passport, it seemed unlikely that he would have been able to travel from China to Cambodia via Vietnam without some form of travel document. Finally, the Applicant was asked to provide any other evidence he might have to support his claims.
This formal invitation, pursuant to s.424 of the Act, was sent by registered post to the Applicant at his residential address on
25 November 1999, and requested that he provide the information by 16 December 1999. The invitation also advised that if the additional information was not provided by the due date, the Tribunal might make a decision on the review of his case without further notice.
There has been no response to this invitation.
Although the Tribunal is not compelled to proceed to a decision without offering the applicant a hearing in all cases where he or she fails to respond to an invitation under s.424, the Tribunal considers that such a course of action is appropriate in this case. The Applicant has had ample opportunity to provide details of his reasons for seeking review of the original decision in the thirteen months since he lodged his application.
Accordingly, the Tribunal is satisfied that it should exercise its discretion under s.424C to proceed to a decision on the review without taking any further action to obtain the additional information, and without inviting the Applicant to a hearing.
The Tribunal’s reasons for affirming the delegate’s decision were brief. It said that it was unable to be satisfied as to the correct identity and nationality of the applicant, but “for the purposes of these reasons, the Tribunal has assessed the Applicant’s claims as against the PRC, as he has requested.” It then gave a short characterisation of the applicant’s claims, and agreeing with the reasoning of the delegate:
In this case, the Applicant has claimed to have experienced difficulties in his business dealings in a joint venture with the government. This claim discloses no issue related to one of the five reasons referred to in the Convention, namely race, religion, nationality, political opinion or membership of a particular social group. The Applicant’s problems arise because of his personal business circumstances, however unfair the treatment he may have received.
The Tribunal also assessed the implications of the applicant’s claim to have been fined for violating China’s family planning laws, which the Tribunal said were “laws generally applicable across China”. It applied Applicant A & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (1997) 190 CLR 225, in which it said the High Court “found that such people did not constitute a particular social group in China, and that the harm suffered by these people was not Convention- related.”
It said:
Accordingly, the Tribunal is not satisfied that the Applicant faces persecution for one of the five reasons set out in the Convention, and therefore is not satisfied that he has a well-founded fear of such persecution.
I can find no error in the Tribunal reasoning in this manner. The applicant clearly did not present a Convention reason for the difficulties he faced before leaving China. If the infliction of penalties under the one-child laws was for the vindictive motive he claimed, then this would not give it a Convention flavour. If the penalty was properly imposed under Chinese law, then his claim fell upon the reasoning in Applicant A.
The applicant’s application and amended application to this Court contain criticisms of the Tribunal’s reasoning as being “unreasonable from my side fact and evidence”, failing to consider the applicant’s claims, and having “no evidence or other material to justify the making of the decision”. However, there is no substance in these contentions, and the applicant has not attempted in oral or written submissions to elaborate them.
The only ground which he raises which has substance is his contention that “the Tribunal failed to give the applicant opportunity to attending the hearing to comment the matter about protection visa application.” As I shall explain, this gives rise to some intricate issues of statutory construction and fact-finding due to a Full Court authority, Minister for Immigration & Multicultural & Indigenous Affairs v Singh (2000) 98 FCR 77. In that case, two judges held to be invalid, at least in relation to some situations, the then Migration Regulation 5.03 which purported conclusively to deem that notices sent by the Tribunal were received “7 days after the date of the document” (c.f. under the current legislation: Murphy v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCR 550, VNAA v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [14-16], and NAWR v Minister for Immigration & Multicultural Affairs [2003] FCA 1520). The invalidity of reg.5.03 opens up for the applicant arguments that the Tribunal was not empowered to dispense with a hearing because the applicant, in fact, did not receive the Tribunal’s letter of 25 November 1999 in time for him to respond when required.
The applicant tendered no evidence in support of this contention, and indeed the effect of Singh was raised by the Minister’s solicitor and not by the applicant. He was unrepresented, and throughout the hearing showed no comprehension of the factual and legal issues which I need to address. However, he accepted my invitation to give evidence under oath concerning his receipt of this letter. His evidence was given through an interpreter, and was often unresponsive to simple questions. This feature of his testimony, plus the fact that the events which he was attempting to recall had occurred six years previously, has lead me to treat his evidence as unreliable in relation to the critical factual issue.
As I understood his evidence, he said that he had moved from Merrylands to the Pitt St address prior to making his application to the Tribunal in October 1998, and had lived there for only about two months. He did not explain, and was not questioned about, why both addresses were given in his original visa application. He said that after he ceased to live at the Pitt Street address, his former landlord continued to receive mail addressed to the applicant, and telephoned the applicant when this occurred. The applicant then would pick up the mail and seek assistance to have it translated to him. He identified the Tribunal’s letter of 25 November 1999 as a document which he received in this manner, and said that he kept it in his possession until recent times, when it had been lost. Initially, he said he thought he first received it from the landlord in July or August 2000 but, after cross-examination, he said it was possible that he received it soon after its date of posting. He said that it was such a long time ago that he could not remember the date when he first saw the letter.
Assessing all the applicant’s evidence, I find that the applicant has not established that he did not actually receive the letter within 7 days of its posting by the Tribunal or at any particular time. However, on all the evidence before me, both documentary and oral, I am unable to reach any opinion as to the date when the letter was actually received by the applicant.
There is no evidence before me as to when the letter would have been delivered to the Pitt St address “in the ordinary course of post” for the purpose of s.29 of the Acts Interpretation Act 1901 (Cth), the possible relevance of which I shall refer to below. In the absence of such evidence, I am not prepared to use judicial knowledge that this would have occurred within 7 days after 25 November 1999, but I am prepared to find that it is probable that such delivery occurred before 27 January 2000, when the Tribunal decided to make a decision without inviting the applicant to a hearing. I do not accept that the applicant’s evidence proves the contrary.
Further, upon the opinion which I give below and which I have assumed when making the above findings, if the date of receipt of the Tribunal’s letter is a “jurisdictional fact” to be decided by the Court making its own findings of fact, then the four working-days presumption of delivery under ss.160(1) and 182(4A) of the Evidence Act 1995 (Cth) has application. This allows me to find positively that the letter posted on Thursday 25 November was received at the Pitt St address on Wednesday 1 December 1999, which was within 7 days of posting, and I so find. The applicant’s evidence suggesting a later date of his actual receipt does not, in my opinion, provide “evidence sufficient to raise doubt about the presumption” of receipt at the Pitt St address under s.160(1).
However, neither s.29 of the Acts Interpretation Act nor the Evidence Act provisions, allow me to make a finding that the applicant received the letter within 7 days of its posting. This is because I accept his evidence that he was not living at the Pitt St address at the time when it was posted. These provisions do no more than allow findings as to delivery and receipt at that address. I find it impossible to make any finding as to the likely additional time which would have passed before the applicant received the letter from his former landlord. On all the evidence, and even applying presumptions available outside the Migration legislation, I consider that it is pure speculation whether the applicant himself received the letter at any date before the Tribunal handed down its decision on 27 January 2000.
If, contrary to my opinion, the issues concerning receipt of the Tribunal’s letter are to be assessed by asking what findings of fact were open to the Tribunal on the evidence which was before it, then I find that there was no positive evidence before the Tribunal showing that the applicant actually received the letter within 7 days of posting or at any other date prior to it making its substantive decision. However, it is possible that the Tribunal had knowledge allowing it to form a view as to likely delivery in the normal course of post for letters sent within Sydney at that time, and I am not persuaded that it would not have been open to the Tribunal to find that the letter was probably delivered to the Pitt Street address within 7 days of posting. The applicant in his evidence to me accepted that, so far as the Tribunal knew, he continued to reside at the Pitt St address at all relevant times. In the absence of notice of a change of residential address being given to the Tribunal, it may have been open to the Tribunal to make a finding that its letter was delivered and came to the applicant’s attention within 7 days of its posting.
Of course, the Tribunal’s reasons extracted above contain no such express finding, and it is difficult to imply a finding by it as to actual receipt of the letter, since the Tribunal probably assumed that it could rely on the deemed receipt provisions of Migration Reg 5.03. If it is relevant, I also note that it would not have been open to the Tribunal to have relied upon the Evidence Act provisions, since they only “apply in relation to … proceedings in an Australian court” (see s.5 and Epeabaka v Minister for Immigration & Multicultural & Indigenous Affairs (1997) 150 ALR 397 at 409).
I now need to identify the relevant statutory provisions which authorised the Tribunal to dispense with inviting the applicant to a hearing, and to consider the legal significance of my above findings of fact.
Section 425(1) of the Migration Act at the relevant time, as now, provided that “the Tribunal must invite the applicant to appear” at a hearing, unless one of the situations described in s.425(2) applied. One such situation is under s.425(2)(c): that “subsection 424C(1) … applies to the applicant”.
Section 424C(1) provides:
(1) If a person:
(a) is invited under section 424 to give additional information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the additional information.
In my opinion, this provision sets preconditions to the Tribunal’s power to dispense with a hearing whose satisfaction is a matter of jurisdictional fact, able to be determined by a Court (c.f. Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [34] and [59], and Cabal v Attorney-General of the Commonwealth (2001) 113 FCR 154 at [49-70]). Moreover, if the Court finds that the power to dispense with a hearing was invalidly exercised by the Tribunal, its consequential failure to invite the application to a hearing is a jurisdictional error affecting its substantive decision and allowing the issue of writs of certiorari and mandamus notwithstanding s.474(1) (c.f. SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [72-75], [173] and [208]; Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 at [25] and [27]; and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553 at [38]). I did not understand the Minister’s solicitor to be disputing these propositions
As well as determining whether the two jurisdictional conditions in s.424C(1)(a) and (b) are satisfied, I have in other cases investigated whether the Tribunal’s discretionary decision to exercise the power to dispense with a hearing has been exercised according to administrative law requirements (see SZDOG v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 213 ALR 439, and SZEMB v Minister for Immigration [2005] FMCA 448). My opinions may need further consideration in view of the clear exclusion of discretion in relation to the similar power of the other immigration tribunal (see ss.359C, 360 and 363A, and Branson J in Haque v Minister for Immigration and Multicultural Affairs (2001) 116 FCR 313 at 317-8 approved in Minister for Immigration and Multicultural and Indigenous Affairs v Jing Shan Sun [2005] FCAFC 201 at [29] and [53]). However, I do not need to examine this issue in the present case. The Tribunal’s reasons set out above accepted that it had a discretion to invite the applicant to a hearing, and it gave reasons for not doing so which reveal no error of fact or law or discretion. The applicant’s evidence raises no suggestion that the Tribunal overlooked any relevant matter of which it was or should have been aware, nor that there was any unfairness in its exercise of its discretion, if it had power.
In the present case, a number of issues arise when considering each of the preconditions in s.424C(1). Thus:
·When considering whether the Tribunal’s letter of 25 November 1999 validly “invited (him) under section 424 to give additional evidence”, it is necessary to consider whether it was permissible for the Tribunal to specify a period for responding which fixed a date for its termination. It will be recalled that the Tribunal’s letter specified a particular date, 16 December 1999, which was 21 days after the date of the letter, without any allowance for the possible need for a flexible commencement date to allow for an uncertain date of receipt.
·If the invitation was valid, the Court must decide whether “the time for giving (the information) had passed”. This requires consideration of whether this should be addressed as at the date specified in the invitation, or at the date of the Tribunal’s decision to complete the review without appointing a hearing. It is then necessary to apply my above findings of fact and decide whether the prescribed period for responding had, in fact, expired before that date.
The requirements of a s.424(2) invitation in relation to time for response to a posted invitation were at the relevant time found in the following provisions of the Act and Regulations.
Section 424B(2) required that “the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.”
Regulation 4.35(3) applied in relation to an invitation not given to a detainee, and requiring information to be given from a place in Australia. It provided: “the prescribed period for giving the information or comments starts when the person receives the invitation and ends at the end of 14 days after the day on which the invitation is received.”
In my opinion, the combined effect of these two provisions was to require that an invitation must contain a “specification” of a “period” in which a response was required. The stated period was required, in the circumstances in which it was given, to allow at least 14 days after the person received the invitation. There is nothing in reg.4.35(3) which suggests that an artificial concept of “the day on which the invitation is received” was intended, although it seems reasonable to assume that the draftsperson envisaged that the determination of the day of receipt might be assisted by other provisions in the Migration legislation or in the Acts Interpretation Act.
In my opinion, the legally safe way to specify the period for a response would have been to indicate a period of days commencing from the date of receipt, without attempting to predict the actual commencement date for the 14 day period. However, the approach of the present notice could have allowed a valid notice to be given, if the period allowed by the letter left no real possibility that the invitation would not have been received in time to allow at least 14 days for response. Most clearly, this would occur if the date of receipt could be conclusively determined in advance by reason of a deemed receipt provision. However, I consider that reg.4.35(3) cannot be interpreted to allow the specification of a period for response which might not have allowed the applicant the 14 clear days which is referred to, absent a legislated conclusive date of receipt. These points of interpretation are not clear, and no authorities were cited to me by the Minister. My opinions are based on my consideration of the language, intent and significance of s.424B(2) and reg.4.35.
In the present case, the specification of a period of 21 days ending on 16 December 1999 could not have been based on more than a possibility that the letter in fact would be posted and actually come to the attention of the applicant within 7 days from its date. The possibility of a longer delay would have been real and obvious. In my opinion, the period specified in the letter would not have complied with Reg.4.35(3) unless the receipt of the letter within 7 days was a matter which was conclusively determined under the then provisions in the Act and Regulations which purported to determine the deemed receipt of posted invitations.
Section 424(3) required that an invitation for additional information, which was given to a person not in detention, must be “given to the applicant by one of the methods specified in section 441A”. Section 441A was in a different form to the present section. Its effect was that an invitation under s.424 to a person not in detention “is taken to be duly given to an applicant for review if:
(a) the document is sent (physically, electronically or otherwise) to:
(i) the last address for service provided by the applicant in connection with his or her application for review; or
(ii) the last residential address provided by the applicant in connection with his or her application for review; and
(b) the Tribunal has a receipt or other evidence indicating the date of dispatch.
To similar effect, reg.4.41 allowed a document to “be given or served” by posting it to the person at his or her address for service or last-known place of residence.
It will be noted that these provisions were capable of deeming the present letter to have been given to the applicant, but were not capable of deeming its date of receipt by the applicant. The regulations attempted to do this in one regulation covering a multitude of situations:
5.03 Time of receipt of document etc that is sent
(1A) This regulation applies to a document sent by the Minister or a Tribunal to a person in that person’s capacity as:
(a) an applicant, of any kind, under the Act or these regulations; or
(b) the holder, or the former holder, of a visa; or
(c) a person who is invited in writing by a Tribunal to give information or comments to the Tribunal.
(1) For the purposes of the Act and these Regulations, and subject to the Act and specific provision elsewhere in these Regulations, a document is taken to be received by the person to whom it was sent at the time that the document is taken to be received at the address to which the document is sent, which is either:
(a) if the document is sent from a place in Australia to an address in Australia — 7 days after the date of the document; or
(b) if the document is sent from:
(i) a place outside Australia to an address in Australia; or
(ii) a place in Australia to an address outside Australia; or
(iii) a place outside Australia to an address outside Australia;
21 days after the date of the document.
(2) Subregulation (1) does not apply to a document unless it is sent within 7 days after the date of the document.
The legal effectiveness of this regulation was examined in several first instance Federal Court judgments, and then in the Full Court in Singh (supra). That case concerned the application of s.412(1)(b) and reg.4.31, which specified the time limit for applications to the Tribunal after receipt of notice of the delegate’s decision. Reg.4.31(2) defined a prescribed periods of 7 working days for detainees and 28 days for other applicants, “commencing on the day on which the applicant is notified of the decision”. The applicant in Singh was not in detention, and his application was found by the Tribunal to be out of time on a calculation which under reg.5.03 deemed him to have received notification 7 days after the date of the notification letter.
O’Connor and Mansfield JJ at [48] referred to the possible effects of the regulation both on detainees and non-detainees, where “the right of review may in reality be non-existent or in practical terms be incapable or almost incapable of being properly exercised”. They concluded at 98 FCR 77 [51]:
Accordingly, in our judgment, reg.5.03 is invalid in so far as it purports to operate in respect of the time limits imposed by reg.4.31 pursuant to s.412 of the Act. The consequence is that it cannot be relied upon in the present circumstances to deem the letter to have been received by 24 September 1997, so that the application for review to the Tribunal was out of time. The learned primary judge found that the presumption in s.29 of the Acts Interpretation Act 1901 (Cth) had been rebutted, and that the letter was not received by Mr Singh only shortly before the application for review was given to the Tribunal, so that it was within the time fixed by reg.4.31(1)(b). We agree that, upon that finding, the application to the Tribunal was within time and the Tribunal should have proceeded to hear and determine the application on the merits. (I note that it is clear from [20] that their Honours intended to delete “not” in the penultimate sentence.)
The solicitor for the Minister argued that Singh could be distinguished in the present situation. In subsequent written submissions counsel for the Minister submitted that it applies only if “absurdity arises” on the particular facts of the matter. She also referred to H v Minister for Immigration (2002) 118 FCR 153 at [5] where there is a suggestion that the effect of Singh may be confined to particular factual situations.
However, I can find in Singh no finding of absurdity arising in the application of reg.5.03 to Mr Singh’s particular circumstances, and the case did not in fact involve an applicant subject to the short periods applicable to detainees which was the focus of the Full Court’s reasoning at [48]. It is difficult to read the case of H as intending to diminish the effect of Singh, and the validity of reg.5.03 does not appear to have been an issue in that case. Moreover, at least two Federal Court judges have held that the binding opinions of O’Connor and Mansfield JJ encompass the application of s.5.03 not only to time periods of 7 days applicable to detainees, but also applied to time limits which might be capable of being met (see Mohammad v Minister for Immigration & Multicultural Affairs [2000] FCA 466 per Katz J at [36-42], and Chan v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 308 per Gray J at [35-36]). Katz J in Mohammad also held that Singh was applicable outside the context of s.412 and reg.3.31. He applied it when considering the validity of an invitation to a hearing which was required to allow a “prescribed period of notice” under s.425A(3). He held that the effect of the invalidity was that the prescribed period of notice could only run from a date of actual receipt, and not from a date derived under reg.5.03.
I consider that I should follow their reasoning, either because I am bound to do so or because I am not persuaded that it is clearly wrong. The consequence of applying Singh to the construction of ss.424B(2) and reg.3.35(3) which I have adopted above, is that the present invitation in the Tribunal’s letter of 25 November 1999 did not contain a specification of a period for response which validly reflected “a prescribed period”. The letter was therefore legally ineffective, in so far as the Tribunal could subsequently rely upon its dispatch as satisfying the first precondition under s.424C(1)(a). The Tribunal therefore was in error in thinking that it had power to dispense with inviting the applicant to a hearing, and its substantive decision to affirm the delegate’s decision was affected by jurisdictional error.
If I am wrong in thinking that the invitation itself was legally ineffective for the purposes of s.424C(1)(a), then I consider that the same jurisdictional error arose due to my failure to be satisfied that the applicant “(did) not give the information before the time for giving it (had) passed”. In this respect, the reasoning of Katz J is directly applicable on my above findings as to the date when the applicant actually received the letter. I am not satisfied that this happened at any date allowing 14 days for a response, either before the stated date of
16 December 1999 or before the date of the Tribunal’s decision on
27 January 2000. I therefore do not need to consider whether a construction of the legislation identifying the latter date as “the time for giving it” is available.
The consequence of my finding of jurisdictional error affecting the Tribunal’s substantive decision, means that the applicant is not barred by ss.474(1) and 477(1A) from obtaining relief by way of writs of certiorari and mandamus. However, the Minister contended that such relief should be refused in the exercise of the Court’s discretion upon the ground that there has been unwarrantable delay before the applicant sought that relief.
The delay is more than four years and probably more than five. The applicant filed the present application to this court on 29 September 2005, after he was taken into immigration detention. The Tribunal’s decision was posted to him at his Pitt Street address for service, with a copy to his agent, on 27 January 2000.
Prior to the hearing, the applicant presented no evidence to explain his delay. At my invitation, he gave sworn evidence. As I understood him, he conceded that he received the Tribunal’s decision after being told by his former landlord that it had been received at the Pitt St address. He collected it, and obtained help in getting it translated. He could not find his agent, but someone else read it to him “randomly”. He then understood that his application was refused. This happened at some date in 2000. He kept the Tribunal’s decision in his possession until recent times when it was lost. At no time before he was taken into detention on 19 September 2005 did he seek advice from anyone expert in migration practice or law. The only step he took to regularise his illegal status was to apply for a bridging visa “last year”. I conclude from his evidence that at some point, probably during 2000, he abandoned any real efforts to identify and pursue his rights to obtain a protection visa, and decided to protract his residence in Australia by remaining unlawfully and avoiding contact with the Department of Immigration.
I do not consider that his evidence provided any satisfactory explanation for a delay which, in my opinion, should be characterised as “unwarranted” and “inexcusable” from the perspective of judicial review of administrative action. Accepting that the applicant may have faced some cultural and economic difficulties if he had sought to obtain immigration advice, I am not prepared to assume nor find that qualified sources of free or professional advice were unavailable to the applicant over all the years prior to his being taken into detention. If the applicant had sought advice about the validity of the Tribunal’s procedures as revealed in its statement of reasons within a reasonable period of receiving it, the jurisdictional issue which I have addressed above would have been apparent to an advisor. In this respect, I note that Gyles J published a judgment finding invalidity in reg.5.03 in September 1999 (see Li v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 219), that Singh was published on 4 April 2000, and that Katz J published Mohammad on 12 April 2000.
The “correct approach” to the analogous jurisdiction of the High Court in relation to constitutional writs, is that “if a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved” relief including a writ of prohibition “will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper approach” (per Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 194, adopted by Gaudron and Gummow JJ in Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at [51-2] with whom Gleeson CJ and Hayne J agreed, and by Kirby J at [149]) Reasons which may be relevant are “delay, waiver, acquiescence or other conduct or the prosecutor”; whether “a party has been slow to assert its rights, has been shown to have waived those rights, or seeks relief in trivial circumstances or for collateral motives, and where the issue of the writs would involve disproportionate inconvenience and injustice” (See also McHugh J in SAAPv Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [80]).
I accept, in favour of giving relief, that I should consider “the high purposes of vindicating the public law of the Commonwealth” etc (c.f. Aala (supra) at [53], [148-9].). Explaining this, Gaudron J said in Re Minister for Immigration and Multicultural Affairs, ex parte Miah (2001) 206 CLR 57 Gaudron J said at [106] that “Although relief by way of prohibition under s 75(v) of the Constitution is discretionary, the guiding principle is that “[t]hose exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers” (see also McHugh J at [152] and Kirby J at [215-222], and Kirby J in Aala (supra) at [140]).
I have considered these statements favouring the granting of relief, and also the possible appearance of anomaly where a Court makes a finding of jurisdictional error affecting a past administrative decision, but denies a remedy to enforce that finding (c.f. Gray J in Applicants M16 of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1641 at [76]). However, these considerations do not deny the existence of the Court’s discretion to refuse relief, nor the possibility of countervailing considerations arising from a long delay.
In my opinion, such considerations arise in the circumstances of the present delay. In the absence of an acceptable explanation, in my opinion it is “just” for the Court to refuse to allow an applicant to take years before deciding to challenge the validity of an administrative decision. A public interest in insisting upon promptness in challenges to such decisions is clear. This was referred to by McHugh J in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at 495-6: “Where an applicant seeks the issue of constitutional or prerogative writs, a further factor must be considered. Those writs are directed at the acts or decisions of public bodies or officials, and the public interest requires that there be an end to litigation about the efficacy of such acts or decisions. In that respect, the present case, although important to the applicant, is not as important as many other cases.” (applied in Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132, and cited in Das v Minister for Immigration & Multicultural Affairs [2004] FCA 489).
I do not consider that refugee claims are in a special class, in which considerations of delay are irrelevant or disregarded. As the recent history of migration litigation in this and other Federal courts demonstrates, the unlimited opening up of judicial review of old decisions on refugee status can seriously hamper the ability of the courts to provide a speedy determination of the validity of decisions concerning current refugee claims. In the present matter, there is an air of unreality about reviewing the legal validity of a decision on a claim for refugee status which was made more than seven years ago, at least, in the absence of evidence that the claim has relevance to the current circumstances of the claimant and his country of nationality, and that the applicant has any prospect of obtaining the visa which he claimed.
In my opinion, balancing all the circumstances shown in the evidence before me, and notwithstanding my finding of jurisdictional error by the Tribunal, the proper exercise of my discretion should cause me to refuse relief in this case.
I certify that the preceding-fifty-four (54) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 10 February 2006
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