SZINT v Minister for Immigration
[2006] FMCA 1259
•17 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZINT v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1259 |
| MIGRATION – RRT decision – Malaysians claiming discrimination for Chinese ethnicity – failed to respond to request for additional information – Tribunal made decision without invitation to hearing – discretion to invite to hearing – whether failure to take into account information as to change of address – no error in exercise of discretion – no jurisdictional error found. |
| Migration Act 1958 (Cth), ss.359C, 363A, 424(1), 424(2), 424A, 424A(2), 424B, 424C, 424C(1), 425, 425(1), 425(3), 474(1), 476 |
| Minister for Immigration v Sun (2005) 146 FCR 498 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 SZDOG v Minister for Immigration (2004) 213 ALR 439 SZEUZ v Minister for Immigration (2005) 193 FLR 88 |
| Applicant: | SZINT |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 849 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 17 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr Mitchell |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 849 of 2006
| SZINT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 22 March 2006 under s.476 of the Migration Act which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal signed on 1 February 2006 and handed down on 21 February 2006. The Tribunal affirmed a decision of a delegate made on 16 November 2005 refusing to grant a protection visa to the applicants.
The applicants are a husband and wife from Malaysia. Although the wife's application was put forward as a secondary application to that of her husband's, they had a shared claim in relation to the circumstances upon which they sought protection visas. Both applicants have appeared today, and both have been invited to make submissions.
Under s.476 the Court has "the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(5) of the Constitution", but its powers are confined by s.474(1) so that I do not have power to send the matter back to the Tribunal unless I am satisfied that its decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants’ refugee claims should be believed, nor whether they qualify for refugee visas. I do not have power to order the Tribunal to give them a further opportunity to appear at a hearing, unless I am satisfied that the Tribunal's decision to proceed without a hearing was affected by jurisdictional error.
The applicants arrived in Australia in September 2005 and on 7 November 2005 they lodged their visa applications without any apparent assistance from an agent. They gave a residential address in Cabramatta and a postal address, being a post office box at Lidcombe. A brief typed insertion gave their reasons for seeking protection in Australia. They said:
We are from Malaysia and we came to Australia for protection because of the racial discrimination in Malaysia. We are of Chinese background, and both of us grew up in Malaysia. As we are minority in Malaysia, we both have experienced racial discrimination in Malaysia and we can not enjoy the equality and normal life in Malaysia. After graduation from high school, we knew very well that we could never find a job as a government official; we did not even try for that. Even we have same qualification and experiences; we can never have the same job opportunity as the local Malay do. In September 2005, my wife and I had a party to celebrate our marriage, and we were all of Chinese background. We had speeches about out marriage, and later the topics changed to racial discrimination in Malaysia. We had drinks together and we had debates together. A group of local Malays came to have arguments with us, they fought us. My wife and I and some other people attending our party were beaten. Police came to take us for investigation. The local Malays who came to make the trouble were allowed to leave without any trouble. We were heavily penalized. My wife and I decided to come to Australia for protection. We don’t want to live in a country without such unfairness, and racial discrimination.
No further details of these claims were ever provided to the Department of Immigration, nor subsequently to the Tribunal, and no corroborative evidence was ever presented.
The delegate's decision, which was sent addressed to the husband at the Lidcombe post office box, referred to the claims as "lacking in substantive detail and do not identify what fear he made be subjected to and by whom, if he were to return to Malaysia".
On 19 December 2005 an application for review was lodged at the Tribunal. It was signed by both applicants and did not appoint any agent to act on their behalf or to receive correspondence. The application gave a residential address at Bonnyrigg, and a mailing address at a post office box at Haymarket. It expressly requested the Tribunal to send correspondence to that mailing address.
The Tribunal sent an acknowledgement of the application to that address on 19 December 2005. On 3 January 2006, it sent a letter addressed to the husband at the Haymarket post office box. This stated:
The Tribunal requests that you provide the following additional information.
· The date and venue of the party you held to celebrate your marriage;
· The place you were taken by police “for investigation”;
· The general nature of any charge laid against you;
· Details (dates, location, court case number etc) of any penalty imposed on you;
· Details of any other acts of harm directed against you in Malaysia;
· The date you obtained a visa to come to Australia;
· Your reasons for seeking a visa to come to Australia; and
· Your reasons for your previous overseas travel to Thailand in March-April 2002 and subsequent return to Malaysia.
This information is to be provided in writing and must be received at the Tribunal by 26 January 2006.
The letter gave contact telephone numbers, and warned the applicant that if he did not provide the additional information by 26 January 2006 "the Tribunal may make a decision on the review of your case without further notice".
I am satisfied that this letter constituted an invitation to give additional information pursuant to s.424(2), and that it complied with the requirements of s.424B in all respects, including the specification of the period in which the information was to be given calculated in accordance with ss.441A(3) and 441C(3) and reg.4.35(3). I am satisfied in that respect that the letter was in fact probably posted on the date of the letter, being 3 January 2006, since this appears to be confirmed by a note in the Tribunal's case management records.
After sending this letter, the Tribunal received on 19 January 2006, apparently from the Department of Immigration, a form which was signed by the applicant wife, but not the applicant husband, which informed the Department of a change of address for her. It is marked “received” by the Department on 30 December 2005, and gave “new contact details” for the wife, being a different residential address at Bonnyrigg, and the earlier advised post office box at Lidcombe.
The Tribunal’s case management records indicate that the member constituting the Tribunal was consulted about this. They show:
19.01.06DIMIA attach (COA recvd and fwd to CO.
190106Change of Address details for a/n wife rec’d from DIMIA. I note that the a/n wife supplied these details to DIMIA on 30 Dec 2005 and has listed residential address as (address) Bonnyrig and the applicants lists his/their address as 149 in the same street. The a/n wife also list PO Box XX LIDCOMBE NSW 2141 as the postal address which differs from the postal address on CMS. Referred to Member for consideration.
190106Prepared 2x letters to be sent to a/n and a/n wife separately at Member’s request. A/n letter sent to CMS address for service and a/n wife to address for service as advised to DIMIA. Await Member’s proof read and OK.
190106Sent letters with Member’s edits. Copies to file.
In the Court book are two letters bearing that date, which I find were probably sent to the applicant wife and applicant husband. The letter to the applicant husband was addressed to the Haymarket post office box, which remained the last address for mail given by him in the knowledge of the Tribunal. It asked him to advise the Tribunal whether he had changed his address, and whether he still wished to pursue his joint application with the applicant wife. The letter said:
If the Tribunal has not heard from you by 6 February 2006, we will assume that your addresses have not changed from the ones shown in the box above. [i.e. as originally notified to the Tribunal]
There was no evidence which ever reached the Tribunal that this letter was not received by the applicant husband. In particular, there is no evidence that it was returned to the Tribunal. Conversely, there was no evidence before the Tribunal positively confirming that it did come to the attention of the applicant husband. The applicants have not presented any evidence to the court to clarify this situation.
The letter sent to the applicant wife on 19 January was addressed to the Lidcombe Post Office box recently notified to the Department by her. It referred to her change of address sent to the Department, and asked her to confirm whether she had changed her address for the purposes of the Tribunal proceeding. The letter concluded:
If the Tribunal has not heard from you by 6 February 2006 we will assume that your addresses have not changed from the ones shown in the box above. [i.e. the original addresses given to the Tribunal]
Incorrect contact details may affect your receipt of important correspondence.
Furthermore, the Tribunal recently sent you important correspondence relating to your case.
We have included a copy of that correspondence with this letter.
Please note that you must provide details relating to questions asked by 26 January 2006.
I find that the “copy of correspondence” which was enclosed was probably the Tribunal’s s.424(2) request previously posted to the Haymarket Post Office box.
As I have indicated, the Tribunal did not hand down its decision until 21 February 2006, although the decision states that it was signed on 1 February. There is no evidence that any communication was made by or on behalf of the applicants prior to the handing down of the decision. There is no evidence that either of the applicants ever responded in any manner to any of the letters sent to them at any of the addresses.
The applicants have not claimed in this proceeding that they made any communication to the Tribunal at any time subsequent to the lodgement of their application for review. They have not presented any explanation to the Court as to why there was no response to any of the Tribunal's letters. Notwithstanding my repeated invitations that they provide an explanation, all that they told me was that it was "not intentional", without explaining this cryptic submission.
In its statement of reasons, the Tribunal referred to the claim made in the protection visa application, and to its letter of 3 January 2006. It made no reference to the correspondence of 19 January 2006, but I cannot infer that the member was unaware of that correspondence, since the case management notes show that he approved the contents of the letters.
The Tribunal said in relation to the letter of 3 January:
No response has been received from the applicants, and the Tribunal's letter has not been returned unclaimed. Under the legislation, the applicant is taken to have received the letter on 12 January 2006.
The Act provides that the Tribunal must invite an applicant to appear before it to give evidence and present arguments. (s.425(1)). However, this does not apply where an applicant is invited under s.424 to give additional information and does not give the information before the time for giving it has passed. In those circumstances, the applicant is not entitled to appear before the Tribunal (ss.424C(1), 425(2)(c), 425(3)).
Although the Tribunal is not compelled to proceed to a decision without offering the applicant a hearing in all cases where an applicant is invited under s.424 to give additional information and does not give the information before the time for giving it has passed, the Tribunal considers that such a course of action is appropriate in this case. The applicants have had ample opportunity to provide details to support their claims for recognition as refugees from Malaysia. Furthermore as the applicants did not respond to the Tribunal’s invitation for them to provide further information which goes to the very heart of their claims for protection, it may be inferred that further invitations to them are very likely to prove fruitless. Accordingly, the Tribunal has decided to proceed to a decision on the review without taking any further action to obtain additional information from the applicants, and without inviting them to a hearing.
The Tribunal’s opinion that it was not bound by s.425 to invite the applicants to a hearing before deciding the case was, in my opinion, a correct application of the provisions of the Migration Act which it cites. However, the validity of its discretionary decision not to take further action, including by inviting them to a hearing, remains for consideration.
The applicants have not raised in the application, or in any submissions, a specific challenge to the Tribunal's decision to decide the case without inviting them to a hearing, and have not challenged the Tribunal's reasoning in relation to its exercise of that procedural discretion. However, I invited them and counsel for the Minister to address me in relation to two concerns. First, whether the Tribunal addressed its procedural discretion by taking into account all up-to-date information concerning the applicant's mailing addresses. Secondly, whether the Tribunal's inference "that further invitations to them are very likely to prove fruitless" was open to it, in the light of the information which was before it, and which cast doubt on whether the applicant wife, if not her husband, had actually received the s.424(2) request sent to the Haymarket post office box.
On reasoning which I explained in SZDOG v Minister for Immigration (2004) 213 ALR 439, I consider that jurisdictional error would vitiate the proceedings before the Tribunal, if the Tribunal failed to exercise its procedural discretion by taking into account up-to-date relevant material or if it based its conclusion upon an inference which was not open to it as a matter of law.
In SZDOG, both the Tribunal and counsel for the Minister accepted that it had a discretion contained within s.424C(1) whether or not to take "further action to obtain the additional information", including by sending an invitation to a hearing. Counsel for the Minister in the present case also accepted this interpretation of the section. In SZDOG I said:
[23] Counsel for the respondent accepted that the Tribunal was correct in thinking that, in the circumstances as they appeared to the Tribunal, it had a discretion whether or not to invite the applicant to a hearing. I consider that this is clearly correct and is shown in the words “may make a decision” in s.424C(1) and (2). Only if that discretion is exercised adversely against an applicant, is the Tribunal relieved from the mandatory requirement to invite the applicant to a hearing (see s.425(2)(c)).
I maintain the opinion expressed in the second sentence in this paragraph, but I need to reconsider the last sentence in the light of an opinion of Branson J in Haque v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 116 FCR 313 at 317, which was approved by the Full Court in Minister for Immigration v Sun (2005) 146 FCR 498 at [53]. Branson J said in relation to sections applying to the Migration Review Tribunal in the same terms as ss.424C and 425:
The circumstances in which the Tribunal is relieved of the statutory obligation posed by s 360(1) of the Act to invite an applicant to appear before it are those identified by s 360(2). If any of the paragraphs of s 360(2) apply, the applicant is not entitled to appear before the Tribunal (s 360(3)). Paragraph (c) of s 360(2) is, in the circumstances of this case, the only potentially relevant paragraph.
Section 360(2)(c) relevantly calls for consideration to be given to whether “subsection 359C(1) … applies to the applicant”. In my view, s 359C(1) applies to the applicant within the meaning of s 360(2)(c) if the applicant is a person to whom paras (a) and (b) of s 359C(1) apply. That is, if the applicant is a person who is invited under s 359 to give additional information and who did not give the information before the time for giving it had passed. The remaining words of s 359C(1) do not add anything concerning the class of applicant to whom the subsection applies. They are words which authorise the Tribunal to adopt a particular procedure.
The Full Court in Sun said at [53]:
We respectfully agree with the construction of s.359C(1) and, by parity of reasoning, s.359C(2) adopted by Branson J in Haque. The construction placed by her Honour on relevant words in the statute as being ‘words which authorise the Tribunal to adopt a particular procedure’ is, in our respectful view, correct.
This interpretation is not inconsistent with construing the word "may" as containing an “authority” which is discretionary once the pre-conditions in paragraph (a) and (b) are satisfied. I consider that it would be incorrect to interpret the section as mandating the Tribunal to take no further action if the preconditions arose. This would preclude the Tribunal from overlooking a failure to respond to a request for information and comments, even if the clear reasons for this were apparent. I do not think that the legislation intends such harshness.
However, Branson J’s opinion is inconsistent with my opinion that an entitlement to a hearing under s.425(1) is not excluded by subsection (2) paragraph (c) if a Tribunal invalidly exercises the discretion. On her Honour's opinion it is enough for the pre-conditions in paragraphs (a) and (b) to have been satisfied, for the applicant to lose his entitlement to a hearing pursuant to the provisions of s.425(2)(c) and (3).
Branson J’s opinion that an applicant loses entitlement to a hearing directly as a result of a failure to respond which triggers s.359C, becomes particularly pertinent in relation to a MRT proceedings, because that Tribunal is subject to a direction in s.363A which precludes the Tribunal from inviting an applicant to attend a hearing once the applicant loses his entitlement. The MRT’s discretion under s.359C in relation to taking further action does not, therefore, include a power to invite the applicant to a hearing.
However, the procedures of the RRT contain no equivalent to s.363A. This has the consequence that the RRT is not precluded from inviting the applicant to a hearing, and, in my opinion, it retains within s.424C a discretion to invite an applicant to a hearing, notwithstanding his loss of entitlement. I therefore do not consider the opinions of Branson J are inconsistent with my opinion in SZDOG, which was accepted by the Tribunal and the Minister's counsel in the present case, that it retained a discretion to invite the applicants to a hearing, and that this was required to be properly exercised by reference to up-to-date relevant information known to the Tribunal.
I also maintain my opinion in SZDOG that a failure validly to exercise this procedural discretion to proceed without taking further action would provide jurisdictional error vitiating the Tribunal’s ultimate substantive decision to affirm the delegate’s decision. Even if the effect of an invalid exercise of the procedural discretion under s.424C(1) was not a jurisdictional failure by the Tribunal to exercise a mandatory duty under s.425, in my opinion, on the view of the procedural code taken by the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24, a materially invalid exercise of the discretion found in s.424C would provide jurisdictional error vitiating the Tribunal's substantive decision.
I must therefore decide whether I am satisfied that the Tribunal in the present case failed to take into account up-to-date information reflecting on whether, in fact, the applicants had received the s.424(2) request for information, and whether it based its decision upon an inference from that information which was not as a matter of law open to it.
I have decided that I am unable to resolve either of these issues in favour of the applicants.
As I have indicated above, the evidence before me suggests that the Tribunal member became aware on 19 January 2006 of the only reason for doubting actual receipt of the s.424(2) request dated 3 January 2006, which was the applicant wife's change of address form sent to the Department in December 2005. In view of the evidence of the member’s knowledge of this document, I would not infer that he overlooked it when subsequently deciding to complete the matter by handing down his decision on 21 February 2006 without taking further action to obtain the information requested, whether by further letters or by an invitation to a hearing. In particular, I would not draw that inference merely from the lack of discussion in the Tribunal's reasons of the correspondence received and sent on 19 January 2006.
In relation to the second issue, I am not persuaded that it was not open, as a matter of law, to the Tribunal to draw the inference "that further invitations to them are very likely to prove fruitless". This finding has to be understood as being made or adopted at the date of the handing down of the Tribunal’s decision on 21 February 2006, one month after the letters dated 19 January 2006 were sent to both post office boxes asking the applicants to clarify their addresses. By that time, the applicants had received more than enough notice of the Tribunal’s request at both of their mailing addresses. I consider that it was open to the Tribunal at that time to draw an inference from the failure of either of them to respond to any of its letters.
I am therefore not satisfied that any procedural ground of jurisdictional error vitiates the present substantive decision of the Tribunal.
The Tribunal's reasoning for affirming the delegate's decision relies, in a minor way, upon the fact that “they did not respond” to the Tribunal’s request for details of their claims. I have, in other cases, held that a substantive decision was vitiated where a Tribunal relied upon such an inference if it overlooked evidence showing that an applicant, in fact, had not received its notices (c.f. SZEUZ v Minister for Immigration (2005) 193 FLR 88 at [34]-[39]). However, for reasons which I have given above, I would not draw an inference that the present Tribunal overlooked relevant information concerning the possibility that the applicants did not receive correspondence sent to them. I therefore do not consider that jurisdictional error is shown in its reasoning which relied upon the applicants’ failure to provide details when requested.
The absence of details of their claims, both in their original visa application or subsequently given to the Tribunal, provided its essential reason for its decision to affirm the delegate’s decision. It said:
In the absence of such details, the Tribunal is not prepared to accept an unsubstantiated assertion that the applicants were involved in such an altercation or that they were penalised in a discriminatory way as a result.
It said in relation to their general claim to suffer discrimination in Malaysia:
Apart from the assertions relating to the alleged altercation at the wedding party, discussed above, the applicants have made no claim that they have personally experienced any acts of harm in Malaysia. They have not claimed to have been denied an opportunity to earn a living or have been denied basic services. Having regard to the examples of “serious harm” set out in s.91R of the Act, the Tribunal finds that the applicants have not experienced discrimination serious enough as to constitute persecution. There is nothing before the Tribunal which would lead it to conclude that they would face persecution were they to return to Malaysia in the reasonably foreseeable future.
In all the circumstances, the Tribunal finds that the applicants do not have a well-founded fear of persecution in Malaysia. They are not refugees.
I do not consider that the Tribunal's reasoning was affected by any misapprehension of fact or law giving rise to jurisdictional error. I consider its reasoning was open to it on the material before it.
The applications filed in this Court and the amended application have adopted precedents which have not been drafted with any attention to the particular circumstances of this case. Regrettably, the applicants declined to take up an offer of a referral for free legal advice. The two affidavits which have been filed by the applicant husband, which may well have been drawn up by the person before whom they were sworn, being Ms Orchid Sit, do not advance the applicants’ case at all.
The application has general contentions that the Tribunal's satisfaction was not based upon reasoning which provided a rational or logical foundation, that it failed to observe the Migration Act, that it failed to consider the claims, and that it did not refer to proper independent information for the consideration of the application. However, no particulars of these are provided. I can identify no substance in them, apart from the procedural issues which I have addressed above.
The amended application repeats these contentions, and includes a further general assertion that “the Tribunal had bias against me when considering my application for a protection visa”. It also alleges that the Tribunal was in breach of obligations under s.424A of the Act. However, no particulars supporting either of these contentions are provided, and I can discern no substance in them.
As I have indicated above, the two applicants had nothing which they wished to say to me today.
For the above reasons, I have not found jurisdictional error affecting this Tribunal's decision. It is therefore a privative clause decision under s.474(1), and I must dismiss the application.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 4 September 2006
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