SZIGV v Minister for Immigration
[2006] FMCA 1221
•28 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIGV v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1221 |
| 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 – 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 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 the Tribunal did not misunderstand its discretion – no jurisdictional error. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 425, 426A, 474
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
Boakeye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438
SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 609 followed
SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457 followed
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: | SZIGV |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 379 of 2006 |
| Delivered on: | 28 June 2006 |
| Delivered at: | Sydney |
| Hearing date: | 26 May 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr Turner |
| Counsel for the Respondent: | Mr Mitchell |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 379 of 2006
| SZIGV |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
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 on
14th December 2005 and handed down on 5th January 2006.
The Applicant seeks orders by way of prohibition, certiorari and mandamus. In respect of the latter, the Applicant seeks an order that the application be remitted to the Refugee Review Tribunal to be reconsidered according to law by a differently constituted Tribunal.
Background
The Applicant is a citizen of South Korea who arrived in
Australia on 3rd August 2005 and applied for a Protection (Class XA) visa on 9th September. The application was refused on 10th October 2005, so the Applicant sought a review of that decision by the Refugee Review Tribunal.
Application for review by Refugee Review Tribunal
The Tribunal received the Applicant’s application for review on
3rd November 2005. In Section B of the application the Applicant provided her home address and a mobile telephone number. She did not nominate any other person such as a migration agent to act for her. She nominated her residential address as her mailing address for all correspondence.
The Tribunal wrote to the Applicant that same day, acknowledging receipt of her application and advising her that she may be invited to attend a hearing of the Tribunal.
On 10th November 2005, the Tribunal wrote to the Applicant advising her that it had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone. The letter invited the Applicant to attend a hearing of the Tribunal at 1:00pm on Tuesday 13th December 2005. The letter asked the Applicant to complete and return a “Response to Hearing Invitation” form that was enclosed.
The Applicant did not return the form and did not reply to the letter. The letter was not returned to the Tribunal unclaimed. The Tribunal proceeded to exercise its power under s.426A of the Migration Act to make its decision on the review without taking any further action to enable the Applicant to appear before it.
The decision was signed on 14th December 2005, although it was not handed down until 5th January 2006.
On 14th December 2005 the Tribunal wrote to the Applicant to advise her that the Tribunal had considered all the material before it relating to her case and had made its decision. The letter advised the Applicant that the Tribunal would hand down its decision on 5th January 2006.
On 18th December 2005 the Tribunal received a form by fax transmission advising that the Applicant had changed her address. The notification was in the form of the Tribunal’s Change of Address Details form and contained no other message from the Applicant other than her name, date of birth, file number, her signature and an incorrect date.
The Tribunal handed down its decision on 5th January 2006, affirming the delegate’s decision not to grant a protection visa.
The Tribunal’s Findings and Reasons
The Tribunal’s findings and reasons are set out on pages 69 and 70 of the Court Book. The Tribunal could not be satisfied on the basis of the information before it that that the Applicant had joined a union and was involved in protests and demonstrations, as she claimed, nor that she was detained, nor that she was beaten, abused and threatened by “gang criminals”. Again, the Tribunal found that it could not be satisfied that the Applicant could not get protection from the authorities or the police or that she had to move out of Seoul to live elsewhere in Korea because she feared harm and was unable to obtain protection.
The Tribunal held that the Applicant’s claims were “essentially untested assertions and are unclear and lacking in detail in important respects”.[1] The Tribunal did go on to discuss matters in the Applicant’s protection visa application, including inconsistent information about where the Applicant had lived in Korea for 12 months or more over the previous 10 years.
[1] See Court Book at 70.
The Tribunal went on to find:
In the Tribunal’s view it would be expected that further details about the Applicant’s claims, together with some clarification of the matters referred to above, would be forthcoming from the Applicant, either in writing in the applications or orally at a hearing, if her claims were genuine and could be substantiated. As at the date of the decision there is no persuasive evidence before the Tribunal that enables it to be satisfied that there is a real chance that the Applicant will face serious harm for the purposes of the Convention, either now or in the reasonably foreseeable future, for a Convention reason, if she returns to her country.[2]
[2] Court book at 70
The Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
Application for Judicial Review
The Applicant commenced proceedings for review in this Court by filing an application and an affidavit on 7th February 2006. In her Amended Application the Applicant claims that the Tribunal failed to carry out its statutory duty. The particulars of that claim are:
a)A breach of the obligation under s.424A of the Migration Act to provided the Applicant in writing with details of the information which would be the reason or part of the reason for affirming the decision under review.
b)A failure to exercise its discretion under s.426A to hold a hearing.
As to the first ground, claiming a failure to observe s.424A of the Migration Act, the Applicant submits that the Tribunal’s duty under s.424A arises at the time when the Tribunal receives information that would be the reason, or part of the reason, for affirming the decision under review. The Applicant submits that the Tribunal had information of that nature in its possession at some time prior to 10th November 2005, when it wrote to the Applicant inviting her to attend a hearing.
The Tribunal had written to the Applicant on that date, saying:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.[3]
[3] A copy of that letter appears at page 55 of the Court Book.
The Applicant’s application for review contained no new information and, as she did not attend the hearing, it is submitted that the Tribunal had information caught by s.424A and failed to give particulars of that information to the Applicant, explain why it was relevant, and give the Applicant an opportunity to comment on it.
The Applicant submits that the Tribunal should have included particulars of the information and explanation in its letter of
10th November 2005 when it invited the Applicant to attend a hearing. Failure to do so is, the Applicant submits, a jurisdictional error (see SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162; SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2).
As to the second ground, the Applicant submits that the Tribunal breached the provisions of s.426A of the Migration Act by failing to exercise its discretion to hold a hearing.
The submission goes that, when the Applicant failed to appear, the Tribunal had a discretion to hold or reschedule a hearing (s.426A(2)). Relying on the decision in Boakeye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438, the Applicant claims that the Tribunal’s only reason for making the decision to make the decision under s.426A was that the Applicant had not appeared. Thus, the Applicant submits that the Tribunal did not consider exercising its discretion.
The Tribunal’s statutory duty is not complete until its decision is handed down. The Tribunal was aware that that the Applicant’s had changed, and was aware of that fact on 18th December 2005, when the Tribunal received the Change of Address Form. As the Tribunal was not due to hand down its decision until 5th January, the Tribunal could reasonably have inferred on 18th December 2005 that the Applicant had not been aware of the date of the hearing.
Conclusions
As to the Applicant’s first claim, that an obligation arose under s.424A to provide the Applicant with the information that it had when it wrote to the Applicant inviting her to attend a hearing, in my view the obligation does not arise at the time when the Tribunal applies the test under s.425 of the Act and invited the Applicant to attend the hearing. In SZCJD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 609, Heerey J held at [40]:
The Tribunal had not then reached the 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 applicant.
The whole point of fixing a hearing as required by s.425 was to obtain further information and, in particular, information from the applicant himself which might or might not result in a decision to affirm the decision under review.
The Applicant’s contention misconceives the nature of the test set out in s.425 of the Act. The Tribunal had considered the information before it. The Applicant had not consented to the Tribunal deciding the review without appearing before it (s.425(2)(b)), nor did s.424C(1) or (2) apply to the Applicant (s.425(2)(c)). Had either of those circumstances applied, the Applicant would not have been entitled to appear before the Tribunal.
The test that the Tribunal had to apply was that set out in s.425(2)(a), whether it should decide the review in the Applicant’s favour on the basis of the material then before it. 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 (s.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 under review.
Thus it follows that the Applicant’s first contention fails. There is no jurisdictional error arising out of any breach of s.424A of the Migration Act.
Turning to the obligation under s.426A, I am not satisfied that the Tribunal misunderstood the discretion given to it under s.426A. The power to act under s.426A(1) arises if the Applicant is invited under s.425 to appear before the Tribunal and does not appear on the day or at the time and place that the Applicant is scheduled to appear. It is clear from s.426A that the Tribunal has a discretion to reschedule the hearing or delay its decision, but it is only if the Tribunal is obliged to do so that there would be jurisdictional error (SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457 at [32]). The Tribunal’s letter had not been returned unclaimed. The fact that the Applicant later advised the Tribunal that she had changed her address did not give rise to any obligation on the part of the Tribunal, because at no stage did the Applicant give any indication that she wished to attend the hearing. By the time her change of address notification was transmitted to the Tribunal, the Applicant had already been sent one letter inviting her to a hearing and a further letter informing her that the Tribunal had made its decision and would hand that decision down on 5th January 2006.
In my view the Tribunal considered all of the circumstances relating to the invitation to appear at the hearing and the Applicant’s failure to attend (see Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [22]). 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 (WACR v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 507).
The Applicant’s second contention fails.
It is clear that the Tribunal’s reasons for affirming the delegate’s decision arose from the lack of information provided by the Applicant. The Tribunal had placed the Applicant on notice that it was not able to make a decision in her favour on the information before it, which is why it invited her to attend a hearing and give evidence. The Applicant did not attend, nor did she provide any further information. In the circumstances, it is not surprising that the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason.
There is no jurisdictional error. The decision is a privative clause decision as defined in s.474(2) of the Migration Act. The application will be dismissed.
I will consider submissions on costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 23 August 2006
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