SZHQT v Minister for Immigration

[2006] FMCA 438

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHQT v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 438

MIGRATION – Review of Refugee Review Tribunal decision – applicant claiming political persecution in China – whether the RRT proceeding was fair considered – failure to disclose information derived from the applicant’s protection visa application – whether the RRT complied with its duty to invite the applicant to a hearing considered – whether the RRT applied the correct test to decide to proceed in the absence of the applicant considered – whether the RRT acted in bad faith considered – RRT sent correspondence to the home address of the applicant when an alternative address and phone number were available on the departmental file.

Migration Act 1958 (Cth), ss.412, 425, 426A
Migration Regulations 1994 (Cth)

Minister for Immigration v SCAR [2003] FCAFC 126
Minister for Immigration v SZFHC [2006] FCAFC 73
NAJV v Minister for Immigration [2002] FMCA 169

Applicant: SZHQT

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent REFUGEE REVIEW TRIBUNAL

File Number: SYG3437 of 2005

Judgment of: Driver FM

Hearing date: 30 March 2006

Date of Last Submission: 8 May 2006

Delivered at: Sydney

Delivered on: 30 May 2006

REPRESENTATION

Solicitors for the Applicant: Mr R Turner
Ray Turner, Solicitor

Counsel for the Respondent: Ms S Mason

Solicitors for the Respondent: Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3437 of 2005

SZHQT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 13 November 1998 and purportedly notified to the applicant by letter of the same date.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of political persecution.  I adopt the following background material drawn from the Minister’s written outline of submissions filed on 23 March 2006 and the applicant’s amended outline of submissions filed on

   
   

   29 March 2006.

2. On 31 August 1995 the applicant, a 44 year old citizen of the People’s Republic of China, arrived in Australia (court book, page 41). 

3. On 1 April 1996 he lodged an application for refugee status with Department of Immigration and Multicultural and Indigenous Affairs ("Department") pursuant to the Migration Act 1958 (Cth) (“Act”) (court book, pages 1 to 21 and 45). The applicant sets out his claims in a separate document (court book, page 22).

4. On 25 September 1996 a delegate of the Minister refused the grant of a protection visa (court book, pages 45 to 53).  On 22 October 1997 the applicant applied for a review of the delegate’s decision by the RRT (court book, pages 54 to 57) again setting out claims in a separate document (court book, pages 58 to 59).  A letter from the RRT to the applicant dated 23 October 1997 and sent to the applicant’s home address was returned on 30 October 1997 marked “insufficiently addressed” (court book, pages 60-62).

5. On 29 September 1998 the applicant was invited to give evidence at a hearing of the RRT, and was informed by that invitation that the RRT was unable to make a decision in the applicant’s favour based on the material provided to date alone (court book, pages 66 to 67).  The invitation to hearing was sent to the applicant at the [home] address provided by him in his application, by registered post, but was returned to the RRT unclaimed (court book, pages 70 to 71).

6. The applicant did not attend a hearing.  The RRT set out the chronology of notification together with the applicant’s non attendance in the following terms:

   On 29 September 1998 the Tribunal wrote to [the applicant] advising that it had considered all the papers relating to his application but was unable to make a favourable decision on that information alone.  [The applicant] was invited to give oral evidence before the Tribunal on 11 November 1998.  He was advised that, if he did not contact the Tribunal within a specified period, the hearing would not take place and a decision may be made on the evidence available to the Tribunal.  The letter was sent to the applicant at the address provided by him, in accordance with the regulations.  It was sent by registered post and was returned to the Tribunal unopened with the advice that it had been “unclaimed”.  [The applicant] did not attend the scheduled hearing. (court book, pages 80.9 to 81.2)

7. The RRT affirmed the delegate’s decision on 13 November 1998.  The letter enclosing the decision was returned to the RRT (court book, page 88).

The RRT’s decision

1. The RRT:

   a)Considered that in the circumstances of the applicant’s non-attendance at hearing, the RRT had discharged its obligation to provide him with an opportunity to give oral evidence which he had effectively declined and the matter would therefore be determined on the evidence before the RRT which comprised the files from the Department and the RRT together with independent country information[1].  (court book, page 81.3)

   b)Found that the applicant’s claims lacked detail about key aspects and he had not provided evidence other than his own assertions to support his claims.  (court book, page 85)

   c)Found that the applicant was on notice by the RRT’s invitation that the RRT was unable to make a favourable decision in his favour based on the material before it alone, however no further information was provided nor did the applicant give the RRT the opportunity to explore his claims with him further at hearing (court book, pages 86.1 to 86.2).

   d)Found that “A number of relevant questions are therefore left unanswered” (court book, page 86.2).

   e)Was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution within the meaning of the Convention (court book, page 86.3).

   [1] Section 424A of the Act had not then commenced. That section was inserted by Schedule 3 of the Migration Legislation Amendment Act (No 1) 1998 (Cth), which commenced on 1 June 1999. As the application before the RRT concluded prior to 1 June 1999 s.424A does not apply.

The judicial review application

1. These proceedings began with a judicial review application filed on 22 November 2005.  The application has been through several iterations since then.  The applicant ultimately relied upon a second further amended application filed in court by leave at the trial of this matter on 30 March 2006.  I granted leave over the objections of the Minister.  The second further amended application raises the following grounds:

   (1)     The RRT failed to carry out its statutory duty.

   Particulars

   a)The RRT failed to consider whether or not to exercise its discretion not to conduct a hearing.

   (2)     The RRT failed to provide the applicant with procedural fairness.

   Particulars

   a)The RRT had information which was the reason, or part of the reason, for refusing the application and failed to give particulars of that information to the applicant and further failed to explain why the information was relevant.

   (3)     The RRT applied the wrong test.

   Particulars

   a)The RRT considered that in order to establish a well founded fear of future harm, an applicant must have suffered harm in the past.

   (4)     The RRT failed to act in a bona fide manner.

   Particulars

   a)The RRT failed to carry out its statutory duty.

   b)The RRT failed to provide the applicant with procedural fairness.

   c)The RRT applied the wrong test.

   d)The RRT continued to send correspondence to an address where it knew the applicant would not receive it, took no other steps to contact the applicant, and proceeded to make a finding that the applicant had received the correspondence.

The evidence

1. I have before me the following evidence:

   a)the court book filed on 27 January 2006;

   b)a replacement page for page 22 of the court book – exhibit A1; and

   c)the affidavit of Raymond Charles Turner (the applicant’s solicitor) filed in court by leave on 30 March 2006;

Submissions

1. Mr Turner prepared an outline of submissions which was filed in my chambers on 24 March 2006 and an amended outline filed in my chambers on 29 March 2006.  In his amended submissions (which Mr Turner spoke to at the trial on 30 March 2006) he relevantly submits as follows:

   a)The RRT failed to provide the applicant with procedural fairness.

   i)The RRT failed to give particulars and invite the applicant to comment upon the following adverse information which was before the RRT:

   ·   whether he was questioned by police;

   ·   his place of residence or employment/business;

   ·   whether the authorities questioned him.

   ii)As this information formed the reason, or part of the reason, for the RRT’s decision, its failure to provide particulars of this information to the applicant is a jurisdictional error.

   b)The RRT further failed to carry out its statutory duty by failing to properly consider whether a hearing should be held.

   i)Section 425 of the Migration Act 1958 (Cth) (“the Migration Act”) provides:

   (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2) Subsection (1) does not apply if:

   (a)     the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

   (b)     the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c)     subsection 424C(1) or (2) applies to the applicant.

   (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

   The invitation must not be a “hollow shell” or an empty gesture: Mazhar v Minister for Immigration [2000] FCA 1759 (6 December 2000)

   ii)The RRT considered (court book, page 81):

   …if he did not contact the Tribunal within a specified period, the hearing would not take place.

   There is no basis in the Migration Act for such a test.

   iii)The RRT was aware that the applicant did not receive the invitation to a hearing (court book, page 70) and took no further steps to contact him.

   c)The RRT applied the wrong test.

   i)The RRT considered that, in order to fear persecution, an applicant must have suffered persecution in the past or been the subject of some specific action by the authorities.

   ii)The applicant claimed a fear of persecution because of the experience of those with whom he was associated being his brother and business partner (court book, page 58).

   iii)The RRT considered that as the applicant himself did not suffer the same experiences, he did not have a real fear that he would suffer a similar fate in the future.

   d)The RRT failed to act on a bona fide basis in that it, in addition to the matters set out above:

   i)Continued to send mail to an address where it knew the applicant would not receive it (court book, pages 62, 70, 88).

   ii)Found that the applicant had received that correspondence (court book, pages 85-86).

2. The applicant relies upon the decisions of the Federal Court in Minister for Immigration v Al Shamry (2001) 110 FCR 27, SCAR v Minister for Immigration [2002] FCA 1481 at [16] and [18] and Mazhar v Minister for Immigration at [31].

3. During argument I raised two issues with the parties.  These were first, whether the review application appearing on pages 54 to 59 of the court book was a valid one in the absence of an address for service[2], and secondly, whether the Court should, even if jurisdictional error is established, refuse relief in the exercise of discretion given the delay of approximately six years in bringing the present proceedings.  It was agreed that these issues would be addressed in written submissions. 

   
   

   I accepted that, in any event, the Minister required the opportunity to present written submissions concerning the second further amended application as she had been taken by surprise by it.

   [2] court book, page 54 where the address for service is left blank

4. Ms Mason prepared written submissions which were filed on 27 April 2006.  Relevantly, she submits as follows:

   The following matters were raised by the learned Federal Magistrate at the outset of hearing on 30 March 2006.

   Firstly, the Court asked whether failure of an applicant to provide an address for service in his application to the Tribunal invalidates that application.  The first respondent submits that an application for review to the Tribunal was not invalid merely by reason of its failure to include an address for service.

   As at 13 November 1998, the relevant sections of the Migration Act were as follows:

   a) Section 412 of the Act stated:

   412(1)An application for review of an RRT-reviewable decision must:

   (a)be made in the approved form; and

   (b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and

   (c)be accompanied by the prescribed fee (if any).

   (2)An application for review may only be made by the non-citizen who is the subject of the primary decision.

   (3)An application for review may only be made by a non-citizen who is physically present in the migration-zone when the application for review is made.

   (4)Regulations made for the purposes of paragraph (1) (b) may specify different periods in relation to different classes of RRT-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).

   b)Regulation 4.39(2) of the Migration Regulations provided:

   An applicant for review may:

   (a)lodge an address for service in a review; and

   (b)at any time after lodging an address for service, lodge a new address for service in that review. (emphasis added)

   c)Regulation 4.40 of the Migration Regulations provided the following in respect of service by the Tribunal of notices or statements to be given by the Tribunal to an applicant:

   4.40.(1)    A notice or statement to be given to an applicant in relation to a decision of the Tribunal is to be taken to be duly given if the notice or statement is given:

   (a)     by posting it to the last address for service provided by the applicant in connection with his or her application for review; or

   (b)     by posting it to the residential address provided by the applicant in his or her application for review; or

   (c)     by giving it to the applicant or to a person authorised by the applicant to receive documents of that kind on behalf of the applicant; or

   (d)     by leaving it at the place of residence of the applicant with a person who appears to live there and appears to have turned 16.  (emphasis added)

   d)Regulation 4.40 of the Migration Regulations provided the following in respect of service by the Tribunal of general documents on an applicant:

   4.41. (1)    If:

   (a)     a document is to be given to, or served on, a person for the purposes of a review by the Tribunal; and

   (b) no other provision as to the manner of giving or serving the document is made by the Act or these Regulations;

   the document may be given or served:

   ………………

   (d)     if the person has not lodged an address for service:

   (i)by giving it to the person personally or to a person duly authorised to receive documents on behalf of the first-mentioned person; or

   (ii)by posting it to the person at his or her last-known place of residence; or

   (iii)by leaving it at that place of residence of the person with another person who apparently lives there and has apparently turned 16. (emphasis added)

   The first respondent therefore submits that an address for service was not mandatory to validate a decision.  Whilst section 412 required the application for review to be in approved form, the Regulations make plain that provision of an address for service is optional and then prescribe the manner and methods of service application in the event that such an address was not provided.

   Next, the learned Federal Magistrate enquired as to when the applicant was placed in Immigration detention. The first respondent understands that Mr Zhang was first detained from 6 October 2000 until 13 October 2000, when he was released on a bond. In relation to the applicant's current period of detention, he was detained on 7 October 2005. The date of detention is apparently relevant as the applicant claims to not have been notified of the decision of the Tribunal until in detention.  The first respondent has also become aware that the applicant was involved in the “Ruhunuhewa” class action from 9 June 2000 to 28 March 2001.  On that basis, the first respondent submits that it is reasonable to infer that the applicant was aware of the Tribunal’s decision in order to have contemplated and joined appeal proceedings and, presumably to have done so upon legal advice of some sort and to have had his inclusion in that class action facilitated by legal practitioners or advisers of some sort. In any case, by the applicant's own admission,  he was notified of the Tribunal's decision when he was put into detention, being 6 October 2000.   

   Ground 1:  Failure to carry out statutory duty

   The applicant particularised this ground at hearing as follows:

   (a)The Tribunal failed to consider whether or not to exercise its discretion to conduct a hearing.

   (i)This ground was premised on the basis that a combination of the present sections 425 and 426A of the Act applied to the Tribunal (see paragraph 15 of the applicant’s submissions). At the time of the Tribunal decision, section 426A had not commenced and section 425 of the Act was in the following terms:

   425.(1)Where section 424 does not apply, the Tribunal:

   (a)must give the applicant an opportunity to appear before it to give evidence; and

   (b)may obtain such other evidence as it considers necessary.

   (2)Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review.

   (ii) What is clear from this section is that the Tribunal was not bound by the present section 426A of the Act (or any similar provision) and that, having invited the applicant to hearing (ie, given the applicant an opportunity to appear) the Tribunal was not required to allow any person to address it orally. There is nothing which constitutes jurisdictional error because the decision record does not make clear its deliberations as to whether or not to enable the applicant a further opportunity to appear.

   (b) The Tribunal was aware that the applicant did not receive the invitation to hearing and took no further steps to contact him.

   i)The first respondent submits that, by reference to the legislative regime set out in paragraph 5 above, the Tribunal was entitled to send the document/s in question to the applicant.

   ii)Tribunal had no obligation to pursue the applicant in order to find a valid address for him by reason of it becoming aware that the applicant has not in fact received documents:  see for example NAJV v Minister for Immigration [2002] FMCA 169 at [9].

   iii)In response to the submission advanced on behalf of the applicant at hearing that the Tribunal ought to have written to the appellant at the address for correspondence provided at CB 7, the first respondent says that had the Tribunal done so, it would have not been following the procedures required of it by the Act/Regulations. As the legislative extracts at paragraph 5 above make clear, the Tribunal was permitted to write to the applicant at other addresses, if there was no address for service provided. However the Regulations made clear that if such an address was to be used it was to be the residential address provided in the application to the Tribunal pursuant to sub-regulation 4.40(1)(b) (in the case of notices or statements) or the last known place of residence in the case of other documents pursuant to sub-regulation 4.41(d)(ii). The address at CB 7 was neither. It was an address provided in an application to the Department, not the Tribunal. Also, it was clearly not a residential address – it was a post office box, and accordingly, the Tribunal would have not have been considered to have served the document/s in accordance with the Act/Regulations.

   iv)Moreover, having regard to residential address provided to the delegate (CB 12), it was the same as that given to the Tribunal (CB 54), so that was of no further assistance but, in any event, would not have complied with regulation 4.40.

   v)In response to the submission advanced on behalf of the applicant at hearing that the Tribunal ought to have used the telephone number at CB 12, the first respondent submits that aside from having absolutely no general obligation to pursue the applicant in such a fashion, the number:

   A.     had not been provided to the Tribunal for the purposes of the application for review (see CB 54 at question 8); and

   B.     The various sections and regulations set out in paragraph 5 above, make clear that the onus is on the applicant to change address details, not upon the Tribunal to pursue an applicant by phone to update same.

   vi)The applicant’s solicitor suggested that there was significance in the fact that correspondence from the Tribunal was returned marked “insufficiently addressed” (CB 62 and 88).  However the first respondent submits that nothing turns upon that particular designation as:

   A.     That designation was not consistently used in respect of correspondence addressed to the applicant at that address (see CB 70 where correspondence was returned to the Tribunal marked “unclaimed”); and

   B.     The address was written by the Tribunal precisely as provided by the applicant to the Tribunal (CB 54) and accordingly, the applicant was entirely responsible for that insufficiency.

   Ground 2:  Denial of procedural fairness

   The applicant alleges that the Tribunal denied him procedural fairness by failing to comply with section 424A of the Act. As was stated in the previous submissions filed for the first respondent, section 424A of the Act was inserted by Schedule 3 of the Migration Legislation Amendment Act (No 1) 1998 (Cth), which commenced on 1 June 1999. As the applicant before the Tribunal concluded prior to 1 June 1999 section 424A did not apply to the present decision.

   The first respondent submits that any obligation to put to the applicant the particulars of information which might have been credible, relevant and significant to the decision (Kioa v West (1985) 159 CLR 550 at 629 per Brennan J) was vitiated by the applicant’s non-attendance at hearing.  As the Court would be aware, prior to the introduction of the section 424A regime, the Tribunal satisfied its duty to provide such particulars to an applicant for comment.  The non-appearance of the applicant essentially meant that the Tribunal was similarly denied an opportunity to provide such information to the applicant.  Moreover, that is the case even now when sections 424A and 426A are in operation:  see SZBKB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1811 per Branson J.  Accordingly, the Tribunal did not err in the manner alleged, or at all.

   Ground 3:  Application of the wrong test

   The applicant alleges that the Tribunal applied the wrong test in respect of its finding at CB 85.8 regarding his claims to have been sought out by authorities regarding publication of part of a book with his brother.

   In Sathiyanathan v Minister for Immigration & Multicultural Affairs [1999] FCA 1168 Branson J summarised the law as to consideration past harm, stating at [13] to [16]:

   As Dawson J pointed out in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379http:// at 399:

   "... The circumstances in which an applicant for recognition of refugee status fled his country of nationality will ordinarily be the starting point in ascertaining his present status and, if at that time he satisfied the test laid down, the absence of any substantial change in circumstances in the meantime will point to a continuation of his original status".

   See also per Toohey J in Chan's case at 406.

   However, the starting point does not constitute the whole of the necessary inquiry. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281 Brennan CJ, Toohey, McHugh and Gummow JJ observed:

   “The chance of persecution is not a fact to be inferred solely from facts that are found to have existed; the very uncertainty of what has happened in other cases is itself material to the assessment of the chance of persecution in the instant case. As a matter of ordinary experience, it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred is the sole determinant of the chance of something happening in the future: the possibility that a different weight should have been attributed to pieces of conflicting information or the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event."

   ………

   The Tribunal's reasons for decision are to be fairly read by an eye not "keenly attuned to the perception of error" (see the authorities referred to in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287, cited in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 250 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. ”

   The first respondent submits that the Tribunal did not err in that it’s finding was not “that in order to establish a well founded fear of future harm, an applicant must have suffered harm in the past” (see Second Further Amended Application particular 3(a)).  To suggest that this is the finding of the Tribunal is, in fact, misleading. 

   The Tribunal’s actual finding was that the authorities had not questioned him at the time of the incident in question and that this was indicative that they had no interest in doing so.  Similarly the Tribunal found that he applicant had left China legally and that since his departure enquiries had not been made about him.  The Tribunal did not find that this meant the applicant had not suffered past harm and therefore did not have a well-founded fear.  Rather, the Tribunal’s overall conclusion was that on the basis of the applicant’s non-attendance, the Tribunal was unable to explore a number of his claims and a number of relevant questions remained unanswered.  That was an ultimate finding of the kind discussed in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208, where their Honours Beaumont, Merkel & Hely JJ stated at [4] to [5]:

   In its reasons for decision the RRT listed a number of significant matters about which the RRT would have wished to satisfy itself at a hearing. The primary judge held, correctly, that it was in no way irrational, arbitrary or capricious for the RRT to want an explanation about those matters.  In its reasons for decision, the RRT said that in view of the first appellant’s failure to attend the hearing, the RRT was unable to satisfy itself that the first appellant had a genuine subjective fear of persecution or that she had experienced any particular mistreatment or harm (let alone who inflicted the harm or for what reason or whether it amounted to persecution for a Convention reason). As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason on return to Bangladesh, it was bound to affirm the decision of the Minister’s delegate to refuse to grant to the first appellant a protection visa.

   The first respondent submits that the Tribunal did not err in the manner alleged, or at all.

   Ground 4:  Mala fides

   The applicant claims that 3 jurisdictional errors which comprise ground 1 to 3 are particulars of the Tribunal’s mala fides.  However, the first respondent submits that even if grounds 1 to 3 constituted jurisdictional error, it does not follow that such an error grounds a lack of bona fides on the part of the Tribunal. 

   In NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 Allsop J said (at [24]):

   “… Dixon J in R v Murray; Ex parte Proctor, above at 400, made it clear that the phrase involves an “honest” attempt to deal with the subject matter conferred to the executive. Bad faith is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question. Finn J in Daihatsu Australia v FCT (2001) 184 ALR 576 at [36] referred, by way of exemplification, to the exercise of a power knowingly for an improper purpose or where no attempt is made, knowingly, to act conformably with duty. Heerey J in SBAP v Refugee Review Tribunal [2002] FCA 590 at [47] said that the phrase “bona fide” involved a serious question involving personal fault on the part of the decision-maker going beyond error of fact or law. It must be clearly identified and proved. I agree. I also agree with the statements of principle made by Mansfield J in SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 at [34]–[36].”[3]

   [3]     Whilst this decision was subsequently overturned on appeal:  see NAAG of 2002 v Minister for Immigration [2003] FCAFC 135 per Gray, Moore & Weinberg JJ, Allsop J’s comments in obiter continue to constitute good law:  see for example NAIS v Minister for Immigration [2004] FCAFC 1 at [36] per Hill, Marshall & Finkelstein JJ.

   The first respondent submits that none of those factors are present in the instant case, even if the decision did contain a jurisdictional error (which is denied).

   Conclusion

   There being no jurisdictional error manifest, the decision is a privative clause decision for the purpose of section 474 of the Act: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby & Hayne JJ.

   Further and in the alternative, the Court ought exercise its discretion and withhold relief.

   In the circumstances, the application should be dismissed with costs.

1. Mr Turner prepared written submissions in reply which were filed on 8 May 2006.  He relevantly submits as follows:

   The Tribunal posted the letter to an address that it knew was not the Applicant’s address and knew that it would not be received by the Applicant.

   Pursuant to the Migration Act (1958) (the Act) s.425 the Tribunal must give the Applicant an opportunity to appear before it to give evidence. The Tribunal failed to carry out this statutory duty.

   If the Tribunal attempted to contact the Applicant by other means or other address and sent the letter to the last notified address it would not have acted in breach of any legislative duty.

   There is no bar in the legislation to sending the letter to more than one address.

   In circumstances where the Tribunal was aware that the Applicant would not, and could not, due to lack of notice of the hearing, attend the hearing, the Tribunal still had an obligation to put any adverse information which it had to the Applicant and give him an opportunity to comment upon it.

   The Applicant relies upon Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 (26 June 2003) referred to in the Applicant’s submissions as starting the proper test for a lack of bona fides.

Reasoning

1. I accept the Minister’s submissions that the review application made by the applicant[4] was a valid one, notwithstanding the failure by the applicant to nominate an address for service.  That application identifies the applicant’s home address as 6/32 Church Street, Cabramatta, NSW, 2166[5].  That was the only address provided by the applicant in the review application.  He left blank the spaces for providing a home or work telephone number.  I also note in passing that although the applicant checked the “yes” box in answer to the question, “do you need an interpreter?” he left blank the boxes for nominating the relevant language and dialect. 

   [4] see court book, pages 54-59

   [5] court book, page 54

2. The RRT wrote to the applicant at his nominated home address on 23 October 1997 about his application.  That letter was returned by Australia Post with a stamp indicating that it was “insufficiently addressed”.  A further letter dated 23 October 1997 sent to the same address was apparently not returned[6].  The hearing invitation dated 29 September 1998 and sent to the same address as the earlier letters was returned unclaimed.  As is recorded in the RRT decision[7], the applicant did not appear on the day and time scheduled for the hearing to which he was invited and the presiding member elected to proceed in his absence.  The RRT wrote to the applicant at his nominated home address on 13 November 1998 providing a copy of the RRT decision and reasons.  That letter was returned to sender stamped “insufficiently addressed”[8].

   [6] There is at least no evidence of the return of it

   [7] court book, page 81

   [8] court book, page 88

3. The question is whether, under the Migration Act and Regulations as they stood at the time and under the general law, the manner in which the RRT proceeded was unfair or inadequate, giving rise to jurisdictional error? In my view, it was not. The RRT proceeded upon the basis that the applicant had failed to avail himself of the opportunity afforded to him to attend the hearing and that it was appropriate to proceed in his absence. Although, as a matter of good and prudent administration, the RRT could have done more, in my view, neither the Migration Act and Regulations nor the general law required it to do more. In NAJV v Minister for Immigration [2002] FMCA 169 at [9] Raphael FM said:

   The provisions of Part 7 of the Migration Act set out in very considerable detail the manner in which the Tribunal should conduct its procedures. Mindful of past errors such as those identified in MIMA v Singh [2000] FCA 377 and Mohammed v MIMA [2002] FCA 466 its procedures and regulations have changed. Applicants are now only required to be invited to attend a hearing and there are detailed provisions which have been referred to earlier in these reasons dealing with the service of notices.  These “deeming” provisions have an obvious purpose.  It is to prevent the continual adjournment of a Tribunal hearing as a result of an applicant making him or herself unavailable.  The provisions appear to safeguard the position of an applicant by providing several methods by which service can be effected and in this particular case two of those methods were applied.  I cannot see any authority for the suggestion that if the provisions are complied with and the Tribunal discovers that the applicant has not received the document that it should take further steps to ensure that he or she does.  As I posited to the applicant’s Counsel, what if the applicant had taken herself off to the Kimberley?  Is the Tribunal expected to make searches throughout Australia?  Obviously not.

4. It is true that the RRT could have done more to attempt to bring its correspondence to the attention of the applicant. The departmental file recorded a post office box address and a telephone number. It does not appear that the RRT attempted to use either. However, the RRT was under no statutory obligation to do so as they were not provided to the RRT in connection with the review application. At the relevant time the only statutory obligation upon the RRT was to give an applicant an opportunity to appear before it and, in accordance with the then applicable regulations, the RRT sought to correspond with the applicant at the home address he had nominated. There was no obligation at that time to consider the exercise of discretion pursuant to s.426A of the Migration Act because the section had not then been enacted.

5. The hearing invitation was more than a “hollow shell” or “empty gesture”. It was an attempt by the RRT to afford an opportunity to the applicant to explain and build upon his protection visa claims. It was not the best possible attempt that the RRT could have made but it was a lawful attempt. It was a lawful attempt because the notice under s.425 was directed to the applicant at the only address given to the RRT for the purposes of the review pursuant to the Migration Regulations.

6. I note that the Full Federal Court in Minister for Immigration v SZFHC [2006] FCAFC 73 rejected the proposition that the RRT breached s.425 of the Migration Act in circumstances similar to the present. The Full Court distinguished the present form of s.425 from the earlier form of the section relevant in this case. I have considered whether paragraphs 35 to 41 of the Full Court’s judgment require any alteration to my reasoning above but I have concluded that no amendment is required.

7. The assertion that the RRT failed to act on a bona fide basis lacks substance.  In Minister for Immigration v SCAR [2003] FCAFC 126 at [18] the Full Federal Court said:

   It is not apparent, either in principle or on the authorities, that an unfair hearing conducted without any fault by the Tribunal is sufficient to establish a lack of bona fides by the Tribunal. The authorities generally support the proposition that before a decision can be set aside on the ground of a lack of bona fides it is necessary to establish something in the nature of actual bias in the decision-maker or circumstances which indicate a lack of an honest attempt to perform the relevant statutory function for the relevant statutory purpose by the decision-maker: see, for example NAML v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1190 at [27]-[33] and the authorities cited therein.

8. Even if the absence of a hearing was unfair (and I have found that it was not) that would not of itself establish a lack of bona fides.  There is no evidence of any probative value that the RRT did not make an honest attempt to perform its statutory functions.  There is no significance in the fact that the first letter the RRT wrote to the applicant was returned as “insufficiently addressed”.  That was the address provided by the applicant and the RRT knew of nothing that could have been added to it.  The applicant had chosen not to disclose in his review application any alternative address at which he might have been contacted or any telephone number.  The failure on the part of the RRT to trawl through the departmental file to locate the alternative post office box address and telephone number that might have been used was not unfair, let alone an act of bad faith. 

9. Neither was there any procedural unfairness in the RRT failing to disclose to the applicant any adverse information upon which it relied in making its decision.  At the relevant time there was no statutory obligation upon the RRT to disclose such information in writing.  The RRT met its general law obligation of disclosure by inviting the applicant to a hearing at which such matters could have been revealed and discussed.  The hearing invitation was the opportunity given to the applicant to participate in the decision making process.  It was not the fault of the RRT that the applicant did not receive that invitation.

10. I also reject the assertion that the RRT applied the wrong test in order to determine whether the applicant had a well-founded fear of persecution.  The allegation is that the RRT considered that, in order to establish a well-founded fear of future harm, an applicant must have suffered in the past.  On page 85 of the court book the presiding member said:

    [The applicant] has claimed to this Tribunal that he was involved in political activities in 1989, during the so-called “June 4” pro‑democracy period.  I find this claim implausible.  He did not refer to it in his statement to the Department, has not explained why he did not, and has provided no details about incidents in 1989 in his statement to this Tribunal.  Further, he has claimed that he was employed as a teacher until six months after June 1989 and, subsequently, within two months had obtained another job at a salary some four times larger.  There is no evidence that he suffered any discrimination as a result of political activities in which he may have been involved in 1989.  This indicates that he was not involved in such activities, or that the authorities did not know that he was.

    As to his claim that his publishing firm published sections of a book which led to the questioning of his brother and colleague, without more detail I cannot be satisfied that this occurred.  Even if it did, Mr Zhang himself was not questioned at any stage, despite residing and working at the same address until he left the country.  The failure of the authorities to question him indicates that they had no interest in doing so.  Further, the fact that he left the country using a passport which was issued in his own name after his firm had apparently come to the attention of the authorities suggests a notable lack of suspicion about him by those authorities.  It is also indicative of a lack of adverse interest in him by the PSB that during the past three years, that is since he left the PRC, they have apparently made no further enquiries about him.

11. I do not see that the presiding member’s reasoning supports the applicant’s contention.  In order to speculate about a possible risk of future harm the presiding member needed to analyse the claims of the applicant as to what had happened to him in the past.  The presiding member did not accept those claims.  As an alternative, the presiding member reasoned that even if the applicant’s brother and colleague had been questioned by the Chinese authorities, on the applicant’s own account he was not questioned at any stage, indicating that the authorities were not interested in him.  It was not a necessary part of the presiding member’s reasoning that she reasoned that there could not be a risk of future harm without evidence of past harm.  Rather, she reasoned that there was no indication that the Chinese authorities had any adverse interest in the applicant.  In those circumstances, it was open to the presiding member to conclude that she was not satisfied that the applicant had a well-founded fear of persecution.

12. No jurisdictional error in the decision of the RRT has been established.  Neither is any jurisdictional error otherwise apparent to me.  Even if there had been I would have been minded to withhold relief, given the exceptional delay by the applicant in bringing these proceedings and his conduct of his review application before the RRT.  On his own account, the applicant became aware of the RRT decision when he was taken into immigration detention in October 2000.  He was probably notified of the RRT decision before that because he was apparently involved in the Ruhunuhewa class action between 9 June 2000 and 28 March 2001.  I am not, however, in a position to make a finding of fact on that issue as I have been presented with submissions, but no evidence, about it.  There appears to have been nothing preventing the applicant instituting these proceedings at least between 28 March 2001 (and possibly earlier) and 22 November 2005 when the judicial review application was filed in this Court.  Added to that is the fact that the applicant is seeking to take advantage of his own failure to provide the RRT with an address at which he could be contacted.  After a delay of more than four years at least, and possibly a delay of up to six years, the applicant should not be permitted to take advantage of that default on his own part.

13. I will order that the application be dismissed with costs fixed in the sum of $5,000.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  30 May 2006