SZIIU v Minister for Immigration - [2008] FMCA 69

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIIU v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 69

MIGRATION – Review of RRT decision – where applicant alleged migration agent did not tell applicant of invitation to hearing before Tribunal – whether applicant notified of letter from Tribunal – whether applicant notified as per s.477 Migration Act 1958 – whether Tribunal letter complied with s.426(1)(b) Migration Act 1958.

Migration Litigation Reform Act 2005, Sch 1 Item 42
Migration Act 1958, ss.426(1)(b), 430B(6), 441C, 477

Minister for Immigration v SZKKC [2007] FCAFC 105
Sook v Minister for Immigration (1999) 86 FCR 484
SZIQB v Minister for Immigration [2007] FMCA 1420

Applicant:

SZIIU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 467 of 2006

Judgment of:

Raphael FM

Hearing dates:

4 & 18 December 2007

Date of last submission:

18 December 2007

Delivered at:

Sydney

Delivered on:

29 January 2008

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Christopher Levingston & Associates

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs of the hearing on 4 December 2007 assessed in the sum of $4,000.00.
First Respondent to pay the Applicant’s costs of the hearing on 18 December 2007 assessed in the sum of $3,000.00.
The name of the First Respondent be amended to “Minister for Immigration & Citizenship”.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 467 of 2006

SZIIU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant in these proceedings is a citizen of China who arrived in Australia on 25 March 1997. On 7 October 1997 she lodged an application for a protection visa with the Department of Immigration & Multicultural Affairs. On 15 December 1997 a delegate of the Minister refused to grant a protection visa and on 7 January 1998 the applicant sought review of that decision from the Refugee Review Tribunal. The application to the Tribunal [CB 37-40] gives the applicant’s home address and an address for service being a P O Box in Burwood. In response to question 11: “Do you have an adviser you authorise to act for you in relation to this application?” the response was “Yes.” A Mr Guo Qiang Cai was nominated and his phone number and fax number were provided. On 1 September 1998 the Tribunal wrote to the applicant at the P O Box in Burwood. A copy of the letter was sent to the migration agent. The letter is in the following form:
“[Applicant’s name]
[Applicant’s address]

1 September 1998
Dear [Applicant]
Re: Application For Review Of Decision To Refuse Protection Visa (Refugee Status)
The Tribunal has looked at all the papers relating to your application but it is not prepared to make a favourable decision on this information alone. You now have an opportunity to come to a hearing of the Tribunal to give oral evidence in support of your claims.
You must do 2 things immediately
1.   TELEPHONE Edward Chiu on (02) 9951 5821 – to tell us whether you want to come to a hearing. If you live outside Sydney please ring 1800 814 593 (for the cost of a local call). If you need an interpreter to make this call, please ring the Translating and Interpreting Service (TIS) on 131 450.
2.   COMPLETE the attached form and RETURN it to the Tribunal within 14 days of the date of this letter.
If we do not hear from you within 14 days the Tribunal will assume that you do not want to come to a hearing and the Tribunal may make a decision on the information it already has.
If you want to withdraw your application you must contact Edward Chiu immediately.
If you want to come to a hearing you must read the information on the next page.
If you want to come to a hearing it will be on:
Date:   Thursday, 15 October 1998
Time: 9:00AM
(Please arrive at least 15 minutes before the start of the hearing)
Place: Level 29, 201 Elizabeth Street, Sydney
The Tribunal will not change a hearing date unless there are very good reasons for doing so.
If you want the Tribunal to take oral evidence from any witness or witnesses, you must fill in their names on the enclosed form. You must also give brief details of what they will say at the hearing. The Tribunal will consider your wishes but it does not have to take evidence from any of your witnesses.
You may bring an adviser, relative or friend to help you. If you bring someone with you they do not have a right to speak at the hearing but the Tribunal may allow them to speak before the end of the hearing.
You must send any new documents or written arguments to support your application to the Tribunal immediately. If they are not in English they must be translated into English by an accredited interpreter or recognised translation authority.
Access for people with disabilities is available. Please contact Edward Chiu if you need assistance.
Yours sincerely
for Deputy Registrar
Sydney Registry”
The applicant did not respond to that letter, neither did she attend the Tribunal on 15 October 1998. On 20 October 1998 a representative of the Tribunal contacted her adviser. A note of that conversation is contained at [CB 43]:
“20.10.98
Called adviser to check if had any response from the applicant about the offer of hearing. He said he spoke to her this morning and she said she was still deciding whether or not to attend the hearing because she ‘did not have any evidence.’ The applicant also told the adviser she will go and speak with some friends about attending the hearing. I told the adviser the hearing date had passed on the 15.10.98. He then proceeded to tell me that the applicant had lost her chance but anyway, had no evidence and no witnesses so therefore, so how could he believe her, he said she will be contacting him this afternoon. Tnguyen.”
On 22 October 1998 the Tribunal wrote to the applicant advising her that a decision had been reached and included a copy of the decision. At [CB 49] the Tribunal states under “Claims and Evidence”:
“The applicant was invited to give oral evidence before the Tribunal on October 15, 1998. The applicant was advised that if she 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 her address for service in accordance with the Regulations. A copy was also sent to her adviser. No response has been received and the applicant did not attend the scheduled hearing. On 20 October 1998, the Tribunal telephoned the applicant’s adviser, Guo Qiang Cai … to check on the applicant’s intentions. He said that he had spoken to her that very morning, and that she had been “still deciding” whether to attend the hearing because she had “ no evidence”. She was to contact him again later that day. It is evidence from the foregoing that the applicant knew about the hearing and elected not to attend it. As of October 22, 1998 the Tribunal had had no further work from the applicant or the adviser and proceeded to finalise the decision.”
The applicant made her application for review of this 1998 decision of the Tribunal in February 2006. I accept that the transitional provisions to the Migration Litigation Reform Act 2005 Schedule 1 Item 42 and s.477 of the Migration Act 1958 (the “Act”) as amended had the combined effect of allowing this applicant twenty-eight days from 1 December 2005 to lodge an application for review as of right and a further period totalling eighty-four days including the original twenty-eight during which the court may, at its discretion, extend the period. The application was lodged within that eighty-four day window of opportunity and would therefore be valid if I was prepared to grant an extension. It is also argued that the applicant’s filing of her application in February 2006 was within any time limit because there was no evidence that the Tribunal decision was actually notified to her in the sense of being personally served as is required by s.477 of the Act: Minister for Immigration v SZKKC [2007] FCAFC 105.
The SZKKC argument cannot avail this particular applicant because the Act as it applied on 22 October 1998 did not establish a code for notification and there was no equivalent to the current ss.430B(6) and 441C, which the court in SZKKC regarded as crucial to its decision that all the methods mentioned in the current s.441A with the exception of s.441A(2)) involved receipt and so could not constitute “actual (as opposed to deemed) notification” within s.477(1). If the applicant was made aware of the existence of the Tribunal decision in 1998, then that notification is deemed to have taken place on 1 December 2005 and the provisions of s.477 apply. It would appear from the grounds of the Further Amended Application filed on 11 December 2007 that this argument has been accepted by the applicant. While there remains a question whether or not she was informed of the Tribunal decision by her migration agent, the grounds of the Further Amended Application are now only twofold:
“1.The second respondent (the Tribunal) committed jurisdictional error by breaching the requirements of s426(1)(b) of the Migration Act 1958.
Particulars
(a)The letter sent in purported compliance with s425A Migration Act erroneously failed to notify the applicant that she had seven days to notify the Tribunal if she wished to obtain oral evidence from a witness.
2The Tribunal failed to comply with s425(1) of the Migration Act by failing to give the applicant a real opportunity to attend a Tribunal hearing.
Particulars
(a)The notice sent in purported compliance with s425(1)
(i) Was not sent to the applicant at her home address.
(ii) Was not notified to her by her migration agent.”
As things transpired the respondent did not accept that the applicant had not been informed about the upcoming Tribunal hearing and arrangements were made for the migration agent to give evidence. At this time the Minister had conceded the jurisdictional errors claimed by the applicant in her Amended Application but when the matter came before me for determination the Minister sought to withdraw those concessions. After some discussion it was agreed that the concessions could be with withdrawn on the basis that the Minister agreed to pay the applicant’s costs for a further hearing date when the allegations of jurisdictional error would be argued. The result was the Further Amended Application to which I have already referred. On the date when the matter was originally set down for hearing I dealt only with the evidence concerning notification. The importance of this evidence is that if the applicant knew about the hearing and knew about the decision it would be difficult for her to argue that I should exercise my discretion to allow an extension of time for her filing of this application unless I was satisfied on the evidence that the applicant was also unaware of her rights to apply to a Federal Court for judicial review.
The applicant’s evidence was that she was recommended to Mr Cai by a friend following the rejection of her original application by the Minister’s delegate. She claims to have referred to him as “lawyer Cai” and did not understand the difference between a lawyer and a migration agent. In her affidavit she stated that she signed the documents he requested her to sign, but did not really understand what the documents were. She stated that he did not ever tell her that the RRT had invited her to a hearing and did not learn of the rejection of her application for review until the end of 1998. She said that he did not give her a copy of the decision or read it to her. She stated that after being told that the application had been rejected she agreed to pay Mr Cai more money to make an application to the Minister. At the end of 1999 that application had also been rejected and she stated that she went to several other migration agents to see if there was anything that could be done about her case. They all told her there was no way they could help her. She stated that no one had told her that she could appeal to the court. When she went in to see her current migration agent she was told she could apply to the court.
The applicant was cross-examined by Mr Reilly, but did not make any concessions to the effect that she had either seen the Tribunal’s decision or that she had been informed by Mr Cai that an appeal to the Federal Court was available to her. The applicant was nervous and gave her evidence through an interpreter.
Mr Cai gave evidence. He had provided the court with a statutory declaration and it was agreed that he would be open to cross-examination by both Mr Karp and Mr Reilly as he had appeared at the court’s request rather than being called as a witness by one or other of the parties. Mr Cai had become a migration agent in March 1997. I found Mr Cai’s evidence impressive and he appeared to me to understand and take seriously his obligations as a migration agent:
Mr Karp:Okay, now you were aware, as a migration agent, that you have a duty to put all the information relevant to your client’s case before the Tribunal.
The Interpreter:    Right.
Mr Karp:Apart from the applications to the Tribunal you put nothing – you submit nothing on her behalf did you?
The Interpreter:    As a migration agent I must submit documents requested by my client. I could not make up something to submit them.
Mr Karp:I would suggest to you that your duty is to ask your client about her case and then put submissions consistent with that case to the Tribunal?
The Interpreter:    Yes I think so.
Mr Karp:Well I suggest to you you didn’t do it?
The Interpreter:    But my client did not provide me with anything.
Mr Karp:You didn’t ask her?
The Interpreter:    I asked each of my clients”. [T22]
Mr Cai stated that he did tell the applicant that she should go to the Tribunal hearing. Under cross examination from Mr Karp he maintained that he remembered this well because the applicant attended his office not on her own but with a good friend of hers:
The Interpreter:    “Because SZIIU came to my office with one of her best friends plus SZIIU is a kind person and therefore I felt happy to talk more about her case with her. I also knew quite well that person who is her best friend. As a migration agent in relation to the RRT hearing it is so important we must inform the client. It is up to them to go or not go but as for me it is very important that I must let them know.” [T24]
Mr Karp cross examined Mr Cai about the note from the Tribunal and its conversation with him after the hearing date had passed. Mr Cai could not recall the conversation. Mr Karp suggested that as an alternative to him not telling the applicant about the hearing, he told her that it was not worth her while going unless she had evidence and documentation. Mr Cai did not agree with that:
Mr Karp:If they couldn’t find witnesses and documentation what would you tell them about going to the hearing?
The Interpreter:    Up to them to make up their mind. If they decide to go I will go with them.
Mr Karp:Mr Cai, in 1997 what did you tell your clients about the consequences of not going to a hearing? I’m sorry 1998.
The Interpreter:    Very simple, if you do not go in definitely will be refused.
Mr Karp:You told them that in 1998?
The Interpreter:    I told each of my clients because a hearing it’s very important. If you choose not to go in and do not have the courage to face the RRT member would suggest you do not have enough evidence or which suggests otherwise your claims are false.
Mr Karp:Well I suggest to you you didn’t say that to your clients in 1998.
The Interpreter:    I told each of my clients the same thing otherwise they could report me to MRA.” [T26]
There was a lengthy debate between Mr Karp and Mr Cai about a statement in his statutory declaration that he told the applicant that she could appeal to the Federal Magistrates Court at a time when the Federal Magistrates Court did not exist. Mr Cai explained that the document was typed by his daughter and that she probably used that title for the court because he had shown her some documents from it. He said that he just told the applicant that she could appeal to “the court”. Having heard the evidence from Mr Cai I am satisfied that the use of the words “Federal Magistrates Court” was a mistake and did not indicate that he had manufactured the evidence.
Mr Karp cross-examined Mr Cai about his statement that he had told the applicant of her rights to appeal to the Federal Court:
Mr Karp:Well I suggest to you Mr Cai that you did not tell my client that she had a right to go to the court?
The Interpreter:    I told my client which was said in my affidavit that they can bring the case to the court but very hard because the court all court can do is check whether the RRT had made any errors in the procedures truth or false about their claims focus on the proceedings. … If RRT did make errors in that respect and they – the chances they can go back to the RRT and ask the RRT for a reconsideration plus I told them you could go to court a lot of cost involved.
Mr Karp:So you gave your client advice about what the court can do and what he could review.
The Interpreter:    Well I gave my advice to them is that if they want to bring their case to the court my suggestion is that they must find themselves a solicitor a lawyer.” [T29]
Mr Cai was cross examined by Mr Riley who asked him if he had given the applicant a copy of the Tribunal’s decision:
The Interpreter:    I did not give the letter to her I explained the contents to her in the Chinese language. [T30].
In considering the evidence of these two witnesses I prefer that of Mr Cai. He gave his evidence in a straightforward manner. He clearly remembered the applicant as a person who he could speak with. He remembered that she had attended his office with her friend, whom he knew. I accept his evidence that he told the applicant that she could attend before the Tribunal but I have no doubt that he made it clear to her that such attendance would be of little use if she could not produce anything more than the statement that she had given in the original visa application. I am satisfied that he had made it clear to her that it was her decision whether or not to attend, and that he made it clear to her that if she did not attend then there was no prospect of success. I am of the view that the applicant, being aware of her inability to produce any further evidence, came to the conclusion that there was little point in her attendance. The attendance note from the Tribunal is troublesome but it can be explained by Mr Cai’s evidence that he told clients that a decision as to whether or not to attend was up to them. If he had had such a conversation with the applicant (as I have found that he had) it may well be that when he received the call from the Tribunal he did not recall exactly what date had been set down for the hearing only that when he had had his standard conversation with her she had not been able to produce any evidence. The note is consistent with him having had such a conversation with her.
I prefer Mr Cai’s evidence to that of the applicant in relation to his telling her that she had an opportunity to seek judicial review from the Federal Court. He may not have had a very lengthy conversation with her about it and he may have made the prospects of success appear poor, which they would be, the applicant having not attended the hearing. But I am satisfied that he did advise her that an application was a possibility before moving on to the alternative suggestion of making a written application to the Minister.

The Minister accepts that the letter from the Tribunal found at

[CB 41-42] advising the applicant of the hearing did not comply with s.426(1)(b) of the Act as it then was: Sook v Minister for Immigration (1999) 86 FCR 484, but disputes that such failure amounts to jurisdictional error. Whilst this is a matter which is contested by Mr Karp I do not think it is necessary for me to make any finding because the error, which related to a time limit within which the applicant should have informed the Tribunal of any witnesses who she intended to call, was immaterial to the Tribunal’s exercise of its power when the applicant did not herself appear. As Mr Reilly submits:
“A jurisdictional error must be one that affects the Tribunal’s exercise of its powers; MIMA v Yusuf (2001) 206 CLR 323 at [82]. The court will not grant relief for errors that are immaterial; Jankovic v MIEA (1995) 56 FCR 474 at 477G.”
Even if I did find that there was a jurisdictional error I would have exercised my discretion not to refer the matter back to the Tribunal.
The second ground of the Amended Application relies upon the fact that the notice to the applicant to attend the Tribunal hearing was not notified to her by her migration agent. I have found that it was and therefore that ground cannot be maintained.
The findings made above render unnecessary any discussion or consideration of the time delay between notification of the Tribunal’s decision and the making of the application. This is a topic which I addressed in SZIQB v Minister for Immigration [2007] FMCA 1420 and I remain of the view that judicial convenience should not be allowed to trump an applicant’s opportunity to be heard by a Tribunal where an application for refugee status has been made and where no such hearing has occurred as a result of a jurisdictional error or where such an error is made in the decision. This is not one of those cases. The application should therefore be dismissed. The applicant should pay the first respondent’s costs of the hearing on 4 December 2007 assessed in the sum of $4,000.00. The first respondent shall pay the applicant’s costs of the hearing on 18 December 2007 assessed in the sum of $3,000.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 29 January 2008