SZICS v Minister for Immigration and Anor

Case •

[2006] FMCA 1180

•

9 August 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZICS v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1180
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 – applicant a citizen of China claiming fear of persecution by reason of religion – obligation on Tribunal under Migration Act 1958(Cth) s.424A(1) to provide applicant with information does not arise at or prior to the time when the Tribunal invites the Applicant to attend a hearing and give oral evidence pursuant to Migration Act 1958 s.425 – the test to be applied under s.425 is whether the information is sufficient to enable the Tribunal to make a decision in the applicant’s favour – if the Tribunal is not satisfied that the information is sufficient then the Tribunal is obliged to invite the applicant to attend a hearing – where applicant claimed that the Tribunal failed to exercise its discretion under Migration Act 1958 (Cth) s.426A(2) – held that Tribunal did not misunderstand its discretion but in fact exercised the discretion – no reviewable error.
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425, 426A, 474
SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 609 followed
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171
SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457 followed.
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
WACR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 507
Applicant: SZICS
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 138 of 2006
Judgment of: Scarlett FM
Hearing date: 9 August 2006
Date of Last Submission: 9 August 2006
Delivered at: Sydney
Delivered on: 9 August 2006

REPRESENTATION

Applicant: In Person
Solicitor for the Respondent: Ms Nanson
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

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

  2. The Application is dismissed.

  3. The Applicant is to pay the First Respondent's costs fixed in the sum of $5,000.00. 

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 138 of 2006

SZICS

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 signed on 24th November and handed down on 13th December 2005.  

Background

  1. The Applicant is a citizen of the People's Republic of China who arrived in Australia on 27th April 2005. He applied for a Protection (Class XA) visa on 4th May 2005, but it was refused on 6th August 2005. The Applicant then sought a review by the Refugee Review Tribunal.

Application for Review by Refugee Review Tribunal

  1. The Applicant lodged his application for review at the registry of the Tribunal on 6th September 2005. He provided no other documents with his application. 

  2. The Applicant gave his residential address as a flat or home unit in a suburb of Sydney. He did not provide any telephone or facsimile number. The Applicant did not nominate any advisor such as a migration agent to act for him. He gave a mailing address in the Sydney suburb of Redfern as his address for correspondence. 

  3. The Tribunal wrote to the Applicant on 19th September 2005 acknowledging receipt of his application. This letter was addressed to the Applicant at his home address, not his mailing address, for some reason that is not clear.

  4. On 11th October 2005 the Tribunal wrote to the Applicant at his mailing address. The letter informed the Applicant that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The letter invited the Applicant to attend a hearing of the Tribunal at 9:00am on Monday 7th November 2005.  That letter, sent by registered post, was returned unclaimed to the Tribunal on 18th October 2005 marked "Left address/Unknown". A copy of the envelope bearing those notations appears on page 47 of the Court Book. 

  5. The Tribunal then wrote to the Applicant at his home address on 4th November 2005, the relevant parts of which read as follows:

    It has come to our notice that you may have ceased using the postal address you gave to us in your application for review.  The last authorised address details you have given us are as follows: (here followed a recitation of the Applicant's home address and mailing address).

    However, a letter sent to your mailing address at (deleted) has been returned to us marked "Left address - unknown".  If your mailing address is no longer correct, please advise the Tribunal in writing on the enclosed form.  If the Tribunal has not heard from you by 22 November 2005, we will assume that your addresses have not changed from the ones shown in the box above. Incorrect contact details may affect your receipt of important correspondence.

    A copy of this letter appears at page 51 of the Court Book. 

  6. The Tribunal did not receive any reply to this letter. The Tribunal noted that the letter was not returned unclaimed and that the Applicant did not attend on the day that the hearing was scheduled to take place. The Tribunal proceeded on 24th November to make its decision on the review without taking any further action to enable the Applicant to appear before it as the Tribunal has the power to do under s.426A of the Migration Act.

The Tribunal’s Findings and Reasons

  1. The Tribunal's findings and reasons are set out on pages 59 to 61 of the Court Book. The Tribunal noted the Applicant's claims but found that there was nothing to support them other than the Applicant's unsubstantiated assertions. The Tribunal found out that there were insufficient particulars provided by the Applicant to enable the Tribunal to be satisfied about the essential features of his claim. 

  2. Accordingly, the Tribunal was not satisfied on the evidence before it that the Applicant faced a real chance of persecution should he return to the People's Republic of China then or in the foreseeable future.  Thus the Tribunal found that it was unable to be satisfied on the evidence before it that the Applicant had a well-founded fear of persecution for a Convention reason.

  3. The Tribunal affirmed the delegate's decision not to grant a protection visa. 

Application for Judicial Review

  1. The Applicant commenced proceedings in this Court on 16th January 2006. He obtained legal advice and filed an Amended Application in Court on 12th May 2006. He instructed a solicitor to appear for him and the solicitor, Mr. Turner, filed an outline of submissions on his behalf on 19th May 2006.  Mr. Turner has since filed a Notice of Ceasing to Act. 

  2. The Amended Application seeks orders for a declaration that the Tribunal decision is null and void and seeks orders that the Tribunal decision should be set aside and that the application be remitted to a differently constituted Tribunal to be reheard according to law

  3. The Amended Application sets out two grounds. The first ground alleges that the Tribunal failed to carry out its statutory duty in that the Tribunal had breached its obligation under s.424A of the Migration Act at the time it forwarded its letter to the Applicant on 11th October 2005. The application claims that this failure is a jurisdictional error. The second ground alleges that the Tribunal failed to exercise its discretion to hold a hearing and that the Tribunal fell into error by not considering exercising its discretion under s.426A of the Migration Act.

  4. The outline of submissions filed on behalf of the Applicant essentially repeats the particulars set out in the Amended Application. The solicitors for the First Respondent Minister filed written submissions originally on 8th May before the Amended Application was filed and then on 7th June 2006 in reply to the matters raised in the Amended Application. Their submissions in brief assert that the Tribunal had found that the Applicant had provided insufficient details of his claims to enable the Tribunal to be satisfied that the Applicant was a Roman Catholic believer, or that he was subject to serious harm or that he feared persecution for reasons of his religious belief and activities.

  5. In respect of the two grounds raised by the Applicant in the Amended Application, the First Respondent relies on the decision of Heerey J in SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 609 rejecting the proposition that an obligation under s.424A of the Migration Act arises at the time when the Tribunal under s.425 notifies the Applicant that it had considered the material before it but was unable to make a decision in his favour and invited the Applicant to attend the hearing.

  6. In reply to the second submission alleging that the Tribunal failed to consider the exercise of its discretion under s.426A of the Migration Act, the First Respondent submits that the Tribunal clearly considered the circumstances relating to the invitation and the Applicant's failure to attend and that there was no evidence that the Tribunal misunderstood the discretion given to it under s.426A. In their submission, the Tribunal was entitled to exercise its discretion not to reschedule the hearing. The Respondent submits there was no breach of procedural fairness in the Tribunal's approach relying on WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171.

  7. In my view, it is plain that the Tribunal considered what evidence there was before it and was not satisfied that the information was sufficient to allow it to be satisfied that the Applicant had a well-founded fear of persecution for a Convention reason and therefore met the criterion under sub-s.36(2) of the Act. It is clear that the Tribunal has an obligation to consider the evidence before it and is required by s.65 of the Act, if satisfied on the evidence, that the Applicant meets the criterion for a visa to grant that visa. If the Tribunal is not satisfied, however, then the Tribunal must refuse the visa.

  8. I am referred to the decision of Bennett J in SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457. Her Honour was dealing with an appeal from a decision of the Federal Magistrate's Court where an applicant, as in this case, had not attended the Refugee Review Tribunal hearing. Her Honour held that at [33]:

    Here there was insufficient information to enable the Tribunal to reach a level of satisfaction as to Australia's protection obligations to the appellant.  The lack of information does not amount to "information" for the purposes of sub-section 424A (1).

    Her Honour referred to VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471. I am satisfied that there was, in this case, insufficient information for the Tribunal to be satisfied.

  9. I turn now to the two grounds contained in the Amended Application. The Applicant submits that the duty under s.424A of the Migration Act on the part of the Tribunal arises at the time that information became known to the Tribunal and forms the view that the information would be the reason, or part of the reason, for affirming the decision. The Applicant submits that when the Tribunal wrote to the Applicant on 11th October saying:

    The Tribunal has considered the material before it in relation to your application but it is unable to make a decision in your favour on this information alone.

  10. The applicant submits that an obligation arose under s.424A of the Migration Act to provide the Applicant the information set out in sub-section (1). Sub-section 424A(1) provides this:

    (1)Subject to sub-section (3), the Tribunal must:

    (a)Give to the applicant in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review, and

    (b)Ensure as far as is reasonably practical that the applicant understands why it is relevant to the review, and

    (c)Invite the applicant to comment on it.

  11. In my view, the obligation does not arise at the time when the Tribunal applies the test under s.425 of the Act and invites the Applicant to attend the hearing. In SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 609, Heerey J considered that very submission at paragraphs 38 through to 43. His Honour did not accept the argument in that case that the Tribunal had contravened sub-section 424A (1) at the time it sent the letter to the applicant inviting the applicant in that case to a hearing. His Honour went on to say at [40]:

    The Tribunal had not then reached a stage where it considered that the information in the protection visa application, or indeed any other information, would be a reason for affirming the refusal of the visa.  It had not reached the decision to affirm (or set aside) the decision under review.  All that had happened by this stage was that the Tribunal considered that the information then before it did not enable it to make a decision in favour of the appellant.

    The whole point of fixing a hearing as required by s.425 was to obtain further information and, in particular, information from the appellant himself which might or might not result in a decision to affirm the decision under review.

  12. In my view, I am obliged to follow that decision and quite clearly the Applicant's contention must fail. I would go on to say that the Applicant's contention that an obligation under s.424A (1) of the Act arises at a time when the Tribunal invites the Applicant to appear pursuant to s.425 misconceives the nature of the test set out in s.425. Section 425 says:

    (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)Sub-s (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)Sub-s 424C (1) or (2) applies to the applicant.  If any of the paragraphs in sub-s (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

  13. In this case, the Tribunal had considered the information before it.  The Applicant had not consented to the Tribunal deciding the review without appearing before it, nor did sub-s.424C (1) or (2) apply to the Applicant.  It followed that the test that the Tribunal had to apply at that stage was whether it should decide the review in the Applicant's favour on the basis of the material before it. That is the test set out in sub-s.425(2) (a).  In this case, the Tribunal considered that the information did not allow it to decide the review in the Applicant's favour.

  14. The opposite of deciding that the information was sufficient to enable a decision to be made in favour of the Applicant is not deciding that the information constitutes a reason for affirming a decision that is under review. The opposite of deciding that the information is sufficient to enable the Tribunal to decide the review in the Applicant's favour is not considering that the information is sufficient to decide the review in the Applicant's favour. 

  15. Where the Tribunal does not consider that it should decide the review in the Applicant's favour on the basis of the material before it, the obligation at that stage is not to affirm the delegate's decision, the obligation is to invite the Applicant to attend a hearing to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. See sub-section 425(1). The obligation under s.424A (1) does not arise until the Tribunal has considered the evidence before it and is deciding whether or not it should affirm the decision that is under review. As Heerey J said in SZCJD the Tribunal had not reached that stage. 

  16. Turning now to the obligation under s.426A, again I am not satisfied that the Tribunal misunderstood the discretion under s.426A or failed to exercise its discretion to reschedule the hearing. Sub-section 426A provides:

    (1)If the applicant:

    (a)Is invited under s.425 to appear before the Tribunal, and

    (b)Does not appear before the Tribunal on the day of which, or at the time and place at which, the applicant is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

    (2)This section does not prevent the Tribunal from rescheduling the applicant's appearance before it or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled.

  17. In this case it is clear from sub-s.426A (2) that the Tribunal has a discretion to defer the hearing. As Bennett J pointed out in SZBCS at [32] it is the case that the Tribunal has discretion to defer the hearing but it is only if the Tribunal is obliged to do so that there is jurisdictional error. Her Honour went on to find that, as was found in NADK, and is apparent from the statutory scheme, the fact that the appellant was unaware of the hearing and that the Tribunal may have had notice of this, was of no legal relevance.

  18. The Tribunal was not required to take into account the fact that the invitation to hearing sent to the appellant's home address had been written "Return to Sender". I am also referred to the decision of Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [22] where the Full Court said:

    In exercising its discretion under s.426A of the Act, the Tribunal clearly considered all of the circumstances relating to the invitation to appear at the hearing and the applicant's failure to attend.

  19. There is no evidence that the Tribunal misunderstood the discretion given to it under s.426A and having complied with the statutory requirements, the Tribunal was entitled to exercise its discretion not to reschedule the hearing. There was no breach of procedural fairness in the Tribunal's approach. (See WACR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 507).

  20. The fact is that in this case before me, the Tribunal quite clearly did exercise its discretion under s.426A (2). The facts of this case to which I have previously referred show that the Tribunal scheduled the hearing for 7th November 2005. When the Tribunal became aware on


    18th October that the invitation letter had been returned unclaimed, the Tribunal then wrote to the Applicant at his home address on


    4th November bringing this situation to the Applicant's attention and giving him until 22nd November 2005 to advise the Tribunal about the Applicant's correct mailing address. The Tribunal noted that it did not receive any reply to that letter and that the letter was not returned unclaimed.  It was not until 24th November 2005, after the deadline had expired, that the Tribunal then made its decision on the review. 

  21. The Tribunal had quite clearly understood its discretion under s.426A (2) and exercised that discretion by delaying the decision on the review until 24th November 2006.  It follows that that ground also of the Applicant's Amended Application must fail. No jurisdictional error has been demonstrated in the Tribunal's decision. 

  1. I am mindful of the fact that the applicant has in fact had legal advice and legal representation until recently. I am not able to ascertain any jurisdictional error. It appears to me that the Tribunal went to some effort to try to contact the Applicant insofar as it was able to do so.

  2. The Applicant complained that the Tribunal did not get in touch with him but he had not provided any telephone numbers to the Tribunal.  He said that he provided them to his migration agent but it is clear that the migration agent did not include any telephone numbers on the application. The Tribunal was not able to contact the Applicant. 

  3. As there is no jurisdictional error, the decision is a privative clause decision as defined in sub-s.474(2) of the Migration Act. No orders in the nature of certiorari, prohibition or mandamus will apply. The application will be dismissed.

  4. There is an application for costs on behalf of the First Respondent Minister.  The Applicant has been wholly unsuccessful in his claim and in my view there is no reason why I should not make an order for costs in favour of the successful Respondent. The costs are estimated at $5,000.00 and I note that this is the third time the application has been before the Court. The application was originally listed on 18th April 2006 and was listed for Final Hearing on 12th May. On that date the Applicant's solicitor filed an Amended Application and proceedings were adjourned for Final Hearing until today. 

  5. The amount of $5,000.00 appears to me to be an appropriate sum. The Applicant says he does not have the money to pay the costs. That is not a reason not to make an order for costs in this jurisdiction but it is a matter to be taken into account when assessing time to pay. I will allow time to pay in these circumstances.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  15 August 2006

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