SZHLI v Minister for Immigration

Case •

[2006] FMCA 1404

•

22 September 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHLI v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1404

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant – where applicant did not attend Tribunal hearing – whether Tribunal breached Migration Act 1958 (Cth) s.425A – whether Tribunal breached Migration Act 1958 s.425 – whether Tribunal breached Migration Act s.426A by failing to exercise its discretion – whether Tribunal made a finding for which there was no probative evidence – whether Tribunal failed to deal with a claim that the applicant was a member of a particular social group – procedural fairness – whether Tribunal failed to afford common law procedural fairness by failing to give the applicant the opportunity to comment on adverse country information – amendments to Migration Act 1958 by Migration Legislation Amendment Act (No.1) (Cth) came into force and had a retrospective effect on applications for review that had not been completed – no jurisdictional error.

PRACTICE & PROCEDURE – Delay – whether relief should be refused on discretionary grounds for unwarranted delay.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.422B, 425, 425A, 426A, 474
Migration Legislation Amendment Act (No.1) 1998 (Cth) s 20, Schedule 3, Item 20

Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 476 followed
VSAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1270 referred to
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 referred to
SZFKF v Minister for Immigration [2005] FMCA 1152 referred to
Htun v Minister for Immigration & Multicultural &Indigenous Affairs (2001) 194 ALR 244 referred to
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 referred to
Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 referred to
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 referred to
Kioa v West (1985) 159 CLR 550 referred to
Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 referred to
SZEGX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 166 followed
SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 followed
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 referred to

Applicant: SZHLI
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 3097 of 2005
Delivered on: 22 September 2006
Delivered at: Sydney
Hearing date: 26 June 2006
Date of last submission: 26 June 2006
Judgment of: Scarlett FM

REPRESENTATION

Counsel for the Applicant: Mr Anthony
Counsel for the Respondent: Mr Potts
Solicitors for the Respondent: Sparke Helmore

ORDERS

  1. The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,600.00.

  4. I allow six (6) months to pay.

  5. The Applicant is to pay the Setting down fee of $345.00 for the hearing to the Collector of Public Moneys Federal Magistrates Court of Australia, Level 16, Law Courts Building, Queens Square, Sydney, NSW 2000 within twenty-one (21) days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3097 of 2005

SZHLI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa. The decision was made and handed down on 22nd June 1999.

  2. The Applicant seeks writs of certiorari, mandamus and prohibition.

Background

  1. The Applicant is a citizen of the Philippines who arrived in Australia on 18th December 1998. She applied for a protection visa on


    18th January 1999 but it was refused on 22nd January. The Applicant then sought a review of that decision from the Refugee Review Tribunal by means of an application lodged on 16th February 1999.

Application to Refugee Review Tribunal

  1. The Applicant’s application for review showed that she had an adviser acting for her, one J.G. Diaz of Diaz & Associates, in Sydney. Attached to the application was a half-page submission in which the Applicant took issue with the finding by the delegate that her claim was not Convention-related and asserted that her difficulties arose from political opinion.

  2. The Tribunal wrote to the Applicant on 17th February 1999, acknowledging receipt of her application and advising that the Tribunal would initially conduct a “review on the papers”. If that review on the papers did not result in a decision in her favour the Applicant would be given an opportunity to attend a hearing to give oral evidence to the Tribunal.

  3. The Tribunal wrote again to the Applicant on 5th March 1999, informing her that the Tribunal had looked at all the material relating to her application but was not prepared to make a favourable decision on that information alone. The Applicant was asked to tell the Tribunal whether or not she wanted to attend the Tribunal to give oral evidence.

  4. The Tribunal asked the Applicant to complete a “Response to Hearing Offer” form and return it by 26th March 1999. The Tribunal received the form on 25th March. In answer to the question “Do you want to come to a hearing?” a tick was written in the box marked “no”. A copy of the form appears at page 40 of the Court Book.

  5. The Tribunal handed down its decision on 22nd June 1999. In the decision, the Tribunal briefly reviewed the claims and evidence, noting that the Applicant did not avail herself of the opportunity to attend a hearing. The Tribunal’s findings and reasons appear on page 48 of the Court Book and are set out here in full:

    The applicant failed to attend a hearing of the Tribunal and the Tribunal was therefore unable to ascertain the nature and seriousness of the threats which the applicant claims to have received, nor did the applicant specify the nature of these threats in her written submission which was very brief. Because of the paucity of the information provided by the applicant and her failure to attend a hearing of the Tribunal, the Tribunal came to the conclusion that the threats, if indeed they were ever made, were not of a nature to cause the applicant harm amounting to persecution.

  6. The Tribunal was not satisfied that the Applicant was a person to whom Australia owed protection obligations and therefore did not satisfy the criterion set out in s.36(2) of the Migration Act for a protection visa.

Application for judicial review

  1. The Applicant commenced proceedings in this Court by filing an application under s.39B of the Judiciary Act 1903 on 25th October 2005. She filed an amended application on 8th February 2006 and a Further Amended Application on 10th March 2006. She filed an affidavit on 13th June 2006.

  2. The Applicant’s grounds for review are summarised as:

    a)Ground 1. The Tribunal failed to give the Applicant a notice under s.425A of the Migration Act.

    b)Ground 2. The Tribunal failed to exercise its discretion under s.426A of the Act.

    c)Ground 3. The Tribunal fell into jurisdictional error in that there was no evidence to support its conclusion that the threats claimed by the Applicant were not sufficient to amount to persecution.

    d)Ground 4. The Tribunal failed to exercise its jurisdiction by failing to deal with the Applicant’s claim that she was a member of a particular social group.

    e)Ground 5. The Tribunal fell into jurisdictional error by failing to give the Applicant any opportunity to comment on adverse country information.

  3. The Applicant’s counsel sought leave, to which there was no objection, to add an additional ground, 1A, of failure to comply with s.425 (1) of the Act. The particulars of that ground are:

    The Tribunal gave notice to the applicant that she was entitled to come to a hearing to give oral evidence to support her claims. The Tribunal did not invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.

  4. The Applicant gave evidence that she had instructed Mr Diaz of Diaz & Associates, migration agents, to act for her. She said that she had asked him on numerous occasions about the progress of her application to the Refugee Review Tribunal. She deposed in her affidavit that it was not until October 2005 that she found out from the Department of Immigration and Multicultural and Indigenous Affairs, as it then was, that her application had been unsuccessful and that she had been an unlawful non-citizen for six years.

  5. The Applicant deposed that she obtained her file from Mr Diaz, at which time she became aware of the Tribunal’s letter of 5th March 1999, offering her the opportunity to attend a hearing. She deposed that the signature on the “Response to Hearing Offer” form appeared to be hers, but she had no recollection of having seen or signed that document. She claimed that Mr Diaz did not inform her of the invitation to a hearing.

  6. In cross-examination by Mr Potts of counsel, who appeared for the Minister, the Applicant denied ever having seen either the letter from the delegate dated 22nd January 1999[1] or the Protection Visa Decision Record.[2] She denied knowing that her application for a protection visa had been refused. She said that she was just aware that she was caught by immigration officials in October 2005 and told that she was unlawful. The Applicant maintained that whenever she asked Mr Diaz about her application, he would tell her that he was still waiting for the Tribunal. She had not attempted to contact the Tribunal herself.

    [1] A copy appears at pages 24 and 25 of the Court Book

    [2] A copy appears at pages 26 to 29 of the Court Book.

  7. Counsel for the Applicant, Mr Anthony, submitted that Grounds 1 and 1A arose from the amendments made to the Migration Act 1958 by the Migration Legislation Amendment Act (No.1) 1998. The Migration Legislation Amendment Act repealed s.425 of the Migration Act as it then stood and substituted an entirely new s.425. It also added s.425A. The amendments commenced on 1st June 1999 but the Tribunal did not make its decision until 22nd June 1999. The amendments were retrospective. The Applicant relies on the decision of North J in Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 476 at [94]:

    The clear intention of s 20 was to alter the obligation of the Tribunal after 1 June 1999 with retrospective effect in respect of existing, uncompleted applications. Those applications were to be dealt with as if the amended obligation existed from the commencement of the application.

  8. The Applicant submits that both ss.425, in its new form, and 425A applied in this case. The Applicant further submits that the Tribunal’s letter of 5th March 1999 did not comply with either section.


    The Applicant further submits that the review continued until the decision was made (see VSAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1270 at [31]).

  9. Failure to comply with a mandatory requirement of the statute means that the Tribunal has not discharged its statutory function. There can be no partial compliance with a statutory obligation to accord procedural fairness (SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [77]).

  10. If s.425A applies, it is an imperative obligation for the conduct of a review. It is clear that that the Tribunal must not only extend the invitation to an applicant, it must also give the applicant notice of the day, time and place at which the applicant is scheduled to appear.


    An open invitation would not comply with s.425(1) (SZFKF v Minister for Immigration [2005] FMCA 1152 at [55]-[57]).

  11. Counsel for the Applicant submitted, correctly, that s.426A was also inserted into the Migration Act by Schedule 3 of the Migration Legislation Amendment Act (No 1). He further submitted that there is no indication in the Tribunal’s findings and reasons that it was aware it was not obliged to proceed with a decision, or that it made any to attempt to exercise its discretion. This failure to exercise the discretion under s.426A meant that the Tribunal’s decision was infected by jurisdictional error.

  12. The Applicant notes that the Tribunal was unable to ascertain the nature and seriousness of the threats which the she claimed to have received but it was still able to conclude that:

    (T)he threats, if indeed they were ever made, were not of a nature to cause the applicant harm amounting to persecution.[3]

    [3] Court Book page 48

  13. Counsel for the Applicant submits that there was no probative evidence on which the Tribunal could have based this conclusion and the Tribunal therefore fell into jurisdictional error.

  14. As to Ground 4, the Applicant submits that her claim was essentially that there was a particular social group consisting of the families of those involved in opposing political parties in the Philippines and as a member of that particular social group the applicant had a well-founded fear of persecution if she were to return to the Philippines.


    By failing to deal with this claim, The Tribunal constructively failed to exercise its jurisdiction (Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]; Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 at [26]).

  15. As to Ground 5, the Applicant submits that the Tribunal failed to give the Applicant the opportunity to comment on adverse information on which the Tribunal may have relied. The submission goes that the Tribunal did not, in its decision, make any reference to any adverse country information on which it may have relied in reaching its decision. It is submitted that the Court can infer that any relevant country information was not disclosed to the Applicant. By not doing so, it is submitted that the Tribunal fell into jurisdictional error (Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264; Kioa v West (1985) 159 CLR 550 per Brennan J at 629; applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72).

  16. The Applicant notes that the Tribunal’s decision was made on


    22nd June 1999 but the application to this Court was not filed until


    25th October 2005. The Applicant relies on the material in her affidavit, to which I have previously adverted. The Applicant’s counsel explained how the Applicant relied on her migration agent, who defaulted. The Applicant explained why she did not call Mr Diaz to give evidence.

  17. Counsel for the First Respondent Minister submitted that it was up to the Applicant to explain the delay, not for the Respondents to refute it. He submitted that the Applicant’s evidence was wholly unsatisfactory and did not explain a 6 year delay.

  18. Mr Potts, for the Minister, conceded that the decision in Algama (supra) applied and that the amendments to the Migration act were indeed retrospective. He submitted, however, that ss.425, 425A and 426A did not apply because the applicant had consented to the Tribunal proceeding without her attending a hearing. He also submitted that the Tribunal did understand and consider the Applicant’s claim but rejected it because of the paucity of evidence. He also submitted that there was no country information relied upon by the Tribunal and the court cannot infer that any was relied upon.

Conclusions

  1. It is clear that amendments to the Migration Act were to apply retrospectively, as was made clear in Algama. It was held in Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362; (2001) 187 ALR 348 that the amendments did not mean that, in cases such as this one, the Tribunal was required to invite the Applicants to appear before it again.

  2. In considering the claims in Grounds 1, 1A and 2, relating to alleged breaches of ss.425A, 425(1) and 426A respectively, it is relevant that the Applicant had consented to the review being decided without the need for her to attend a hearing. The Applicant gave evidence in these proceedings, and did not deny that the signature on the “Response to hearing Offer” form was hers, but did say that she had no memory of seeing or signing the document. The signature appears similar and almost identical to her signature and her various applications.

  3. I am satisfied that the signature on the “Response to hearing offer” is that of the Applicant. I am satisfied that the Applicant, even if badly or inadequately advised, consented to the Tribunal deciding the review without her appearing before it. The Applicant agreed in cross-examination that she spoke fluent English and could read and write English. The Applicant gave her evidence in English without an interpreter.

  4. Because the Applicant consented to the Tribunal deciding the review without the Applicant appearing before it (s.425(2)(b)), sub-section 425(1) did not apply. Consequently, there was no breach of s.425(1).

  5. As s.425(1) did not apply, the Applicant was not invited to attend a hearing. The requirements of s.425A are only enlivened if the Applicant is invited to a hearing. As the Applicant was not invited to attend a hearing, the Tribunal was under no obligation to send her a notice under s.425A. Consequently, there was no breach of s.425A.

  6. Section 426A is only enlivened if the applicant is invited under s.425 to appear before the Tribunal but does not (see SZEGX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 166 at [9]). As the Applicant was not invited to appear before the Tribunal, s.426A did not apply and the Tribunal was under no obligation to consider its discretion under s.426A (2). Consequently, there was no breach of s.426A.

  7. For the reasons I have given above, the Applicant’s Grounds 1, 1A and 2 must fail.

  8. As to Ground 3, the “no evidence” ground, I agree with the submissions of counsel for the First Respondent that it was the paucity of information that led the Tribunal to conclude that it was unable to be satisfied that the threats, if any, were sufficiently serious to amount to persecution. I am not satisfied that any jurisdictional error has been made out. This ground does not succeed.

  9. Ground 4 claims that the Tribunal did not deal with the Applicant’s claim to be a member of a particular social group. The paucity of information before it did not enable the Tribunal to give any consideration to this claim. I agree with the submission by counsel for the First Respondent that the Tribunal did not constructively fail to exercise its jurisdiction. This ground fails.

  10. Ground 5 claims a breach of procedural fairness by failure to give the Applicant the opportunity to comment on adverse country information. There is no evidence that any country information was relied on by the Tribunal. This ground clearly fails.

  11. The Tribunal affirmed the delegate’s decision because there was insufficient information before it to enable it to be satisfied that the Applicant met the criteria for a visa (s.65).

  12. This is another case where the observations of Hely J in SZDXC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1306 at [16] are apposite:

    The RRT made it pellucidly clear in its letter of 12 March 2004 that it was unable to make a decision in the applicant’s favour on the basis of the information before it, and as the Full Court observed in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, when the appellant failed to accept the opportunity to elaborate on that information at the scheduled hearing, the inevitable consequence was the rejection of his application. 

  1. It appears unnecessary for me to consider whether the Court, in the exercise of its discretion, should refuse to grant relief because of the lengthy and poorly explained delay. I am satisfied that no jurisdictional error has been made out, so the Tribunal decision is a privative clause decision as defined by s.474(2) of the Migration Act. As such, it is final and conclusive and it is not subject to certiorari, mandamus or prohibition (see s.474(1)(c)).

  2. The application will be dismissed with costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  20 September 2006


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