SZJEK v Minister for Immigration
[2007] FMCA 1139
•12 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJEK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1139 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – applicant did not receive actual notification of postponed hearing date – whether failure to observe procedures or lack of procedural fairness. |
| Migration Act 1958 (Cth), ss.422B, 424, 425, 426A, 441A Migration Regulations 1994, r.4.35D |
| Minister for Immigration & Multicultural & Indigenous Affairsv Lat (2006) 151 FCR 214 Minister for Immigration & Multicultural & Indigenous Affairsv SZFML [2006] FMCA 152 NADK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184 SZDPB v Minister for Immigration & Multicultural Affairs [2006] FCAFC 110 VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 |
| Applicant: | SZJEK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG2182 of 2006 |
| Judgment of: | Barnes FM |
| Hearing date: | 12 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 12 July 2007 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The name of the first respondent is amended to read Minister for Immigration and Citizenship.
The application is dismissed.
The applicant shall pay the costs of the first respondent fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2182 of 2006
| SZJEK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 13 July 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant claimed to be a citizen of the Peoples Republic of China. He arrived in Australia in 2006. He applied for a protection visa two days after his arrival. The application was refused and the applicant sought review of that decision by the Tribunal.
In his application for review he provided a residential address in Australia in the suburb of Merrylands. He did not appoint an authorised recipient. He indicated in the form that he wanted correspondence sent to him at the specified residential address in Merrylands. The Tribunal wrote to the applicant on 24 April 2006 inviting him to attend a hearing on 25 May 2006. The applicant completed a response to hearing invitation which indicated that he wished to attend the hearing and that he required a Mandarin interpreter. It is apparent that that response to hearing invitation was received by the Tribunal. The copy in the court file is stamped received 5 May 2006.
Consistent with the affidavit evidence of John Willoughby Thomas a District Registrar of the Tribunal in an affidavit sworn on 4 May 2007 filed on 7 May 2007, I am satisfied that the Tribunal wrote to the applicant by letter of 22 May 2006 which (in accordance with the Tribunal procedures set out in the affidavit and the hearing screen from the Tribunal’s electronic case management system in respect of the applicant’s file) I accept was dispatched to the applicant in accordance with the procedures of the Tribunal by ordinary prepaid post on 22 May 2006 or on 23 May 2006 if it missed the external mail dispatch for 22 May 2006.
The letter notified the applicant that due to circumstances beyond the Tribunal’s control it would not be able to have a hearing on 25 May 2006 and that the new hearing was on 23 June 2006 at a time and place specified. The letter advised the applicant that if he did not attend the hearing and the Tribunal did not postpone it it would make a decision on the case without further notice.
As explained both by the applicant in oral evidence and in an affidavit sworn and filed on 4 May 2007 by Jennifer Barwick, a Tribunal officer, Ms Barwick contacted the applicant by phone on 22 May 2006 to advise of the postponement of the hearing. She spoke to the applicant first and then through another party who assisted with interpreting on the applicant’s direction.
The first respondent does not dispute the applicant’s account of this conversation, consistent with the file note annexed to Ms Barwick’s affidavit. I accept that as a result of this conversation the applicant understood that the hearing scheduled for 25 May 2006 was postponed, but did not know what the next hearing date would be. The applicant consistently asserted that he did not receive the letter notifying him of the postponed date.
In its reasons the Tribunal set out the initial invitation to a hearing, the applicant’s indication that he wanted to give oral evidence and the postponement of the hearing in the letter of 22 May 2006. It also stated that the applicant had not attend the hearing on 23 June 2006. The Tribunal reasons add that the applicant had not come to the Tribunal on the original date of 25 May 2006. I note however that that is hardly surprising in light of the evidence that a Tribunal officer had contacted the applicant in relation to a postponement of the hearing of 25 May 2006. The Tribunal continued that the applicant did not contact the Tribunal to explain his failure to attend on 23 June 2006. In those circumstances pursuant to section 426A of the Migration Act 1958 (Cth) the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
On that basis the Tribunal outlined the applicant’s general claims about mistreatment of Falon Gong practitioners and his assertion that he was a Falon Gong practitioner, but had regard to the fact that he had provided no details about his practise or made claims that any harm had befallen him in China for reason of his alleged practise, but rather had simply asserted that such harm would befall him in the future if he returned. The Tribunal found the application to be devoid of details and lacking substance and was not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Refugees Convention.
The applicant sought review of the Tribunal decision by application filed in this Court on 9 August 2006. The only ground relied on in the application is as follows:
The notice sent by the Tribunal to the applicant pursuant to the requirements of section 425A Migration Act 1958 (Cth) dated 22 May 2006 inviting the applicant to a rescheduled hearing to be conducted by the Tribunal into the applicant’s claim for refugee status was never received by applicant with the result that he was not aware of the rescheduled hearing conducted by the Tribunal and was not able to provide answers to the concerns which the Tribunal had with his application and so was denied procedural fairness.
In support of his application the applicant provided an affidavit sworn on 8 August 2006 referring to the invitation of 24 April 2006 and his advice to the Tribunal that he wanted to give oral evidence at the hearing scheduled on 25 May 2006 and claimed (and the first respondent accepted) that he was not aware that the hearing had been rescheduled to 23 June 2006. The applicant consistently maintained this evidence in cross-examination and I accept that he was not aware that the hearing had been rescheduled to 23 June 2006 although as he volunteered, he did have a conversation informing him that the day had been changed. He thought that conversation had been with a person from ‘Immigration’ but it is consistent with the affidavit of Jennifer Barwick that she in fact telephoned the applicant advising him of a postponement. In that respect I note that there is nothing in the file note of that telephone conversation to indicate that the applicant was informed at that time of the adjourned date for the hearing. Rather I am satisfied that the applicant was advised of a postponement of the hearing to an unspecified date.
The applicant claimed he did not receive the letter of 22 May 2006 advising that the re-scheduled hearing would be on 23 June 2006. It is not disputed that the applicant was not on actual notice of the adjourned hearing date. In these circumstances he contends that there has been a denial of procedural fairness. I have considered that claim and also whether there was any failure by the Tribunal to comply with the procedures under the Migration Act 1958 (Cth).
The difficulty for the applicant, despite the fact that he did not receive actual notification of the postponed date, is the extent and nature of the obligations imposed on the Tribunal under Division 4, Part 7 of the Migration. Act. I note first that section 422B provides that the subdivision is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals (see Minister for Immigration & Multicultural & Indigenous Affairsv Lat (2006) 151 FCR 214). The subdivision deals with invitations to hearings. Relevantly, section 425 obliges the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review (except in specified circumstances not relevant in the particular circumstances of this case as this is not a case in which a notice was given under section 424 or 424A bringing into play the provisions of section 424C).
If the applicant is invited to appear before it the Tribunal must by section 425A give the applicant notice of the day on which and the time and place at which the applicant is scheduled to appear. Under s.424A(2) such notice must be given to the applicant by one of the methods specified in s.441A. It must give at least the prescribed period of notice and must contain a statement of the effect of s.426A.
Section 441A provides for the methods by which the Tribunal gives documents to a person. Sub-section (4) provides that one such method is to date the document and dispatch it within three working days of the date of the document by pre-paid post or by other pre-paid means to the last address for service provided to the Tribunal by the recipient in connection with the review or the last residential or business address provided to the Tribunal by the recipient in connection with the review.
I am satisfied in this case on the evidence before me that the Tribunal complied with its obligations under s.441A(4). While the applicant understandably urged that the Tribunal should be required to send such important letters by some more secure method than simple pre-paid post, the Act provides for the sending of documents by pre-paid post. Sections 425A and 441A mean that giving a notice by such a method meets the Tribunal’s obligation. There is no suggestion that the Tribunal failed to meet its obligations in relation to the invitation of 24 April 2006. In addition, I am satisfied that the letter of 22 May 2005 was dispatched by pre-paid post (as attested to by Mr Willoughby Thomas) within the prescribed time to the address that was both the last residential address and the address for correspondence provided to the Tribunal by the applicant in connection with the review. In that respect I note that not only was this the address provided in the application for review but also that the same address was provided as the home address for the applicant in the response to hearing invitation. No issue was taken in relation to the addressing nor is any issue apparent in relation to the addressing of the letter to the applicant.
As to the other requirements of s.425A, sub-s.(3) provides that the period of notice given must be at least the prescribed period. Regulation 4.35D of the Migration Regulations 1994 provides that where the applicant is not in detention the prescribed period starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received. I note that the period of ‘notice’ given in the letter of 22 May 2006 would meet the requirements of s.425A(3) if the prescribed period applied to a postponement of a hearing (but see MIMIA v SZFML [2006] FCAFC 152).
Critically in this case, s.441C of the Act provides in subsection (4) that if the Tribunal gives a document to a person by the method in sub-s.441A(4) (which involves dispatching the document by pre-paid post or by other pre-paid means) the person is taken to have received the document seven working days after the date of the document.
There is authority of the Full Court of the Federal Court in relation to the effect of these provisions which I am bound to follow. In particular, in VNAA v MIMIA [2004] FCAFC 134 in comparable circumstances, where a hearing invitation letter had not in fact been received by an applicant, the Full Court of the Federal Court held that if the Tribunal met its obligations under ss.425 and 425A it was entitled to proceed to make a decision under s.426A without taking further steps to enable the applicant to appear before it.
In VNAA Sundberg and Hely JJ (with whom Gyles J agreed generally) set out the requirements of the provisions to which I have referred and found, first, that there was no breach of section 425 (at [14] – [15]). As in VNAA, in this case the Tribunal met its obligation to invite the applicant to appear to give evidence and present arguments. The invitation and the notice of the time and place of the hearing were, as in VNAA, embodied in the one document, being the letter of 22 May 2006. This was sent to the applicant’s last residential address appearing on the application for review and the response to hearing invitation. By force of s.441C(4), as in VNAA the applicant was taken to have received the document seven working days after the date it bears. Sundberg and Hely JJ pointed out (at [15]) that, as the primary judge in VNAA had said, “The fact that [he] did not become aware of the invitation does not displace the effect of section 441C” (see NADK v MIMIA, [2002] FCAFC 184 at [14] to [16]).
I also note that in accordance with s.425A(4), the letter of 22 May 2006 advised the applicant that if he did not attend the hearing and the Tribunal did not postpone it it could make a decision on his case without further notice as required under s.426A, hence setting out the effect of that section. Consistent with the approach in VNAA (at [15]), similarly in this case (insofar as it is applicable to a re-scheduling of a hearing: see SZFML at [79]), section 426A empowered the Tribunal to decide the review despite the fact that the applicant did not have actual notice of the postponed date.
In relation to the issue of notice, s.441C applies to mean that the applicant was taken to have received the re-scheduled hearing letter, as is “implied” in the s.425A(1) obligation: see SZFML at [79], whether or not he actually received it. In VNAA Sundberg and Hely JJ referred with approval (at [15]) to what the primary judge had said in that case in relation to an argument that actual notice of a hearing invitation was required:
If the applicant’s argument were right the Tribunal would be required in each case to be affirmatively satisfied that the invitation under section 425 had actually come to the notice of the applicant. To proceed in the absence of such affirmative satisfaction would on the applicant’s argument convict the Tribunal of jurisdictional error. That argument flies in the face of the statutory scheme discernable in sections 441A and 441C and must, I consider, be rejected.
Their Honours went on to state that Part 7 of the Migration Act, including s.420, must be read as a whole and suggested that the scheme that that part of the Act involved expressly contemplated that in particular circumstances “… an applicant will not attend the hearing including cases involving no fault of the applicant. Notwithstanding that, the Tribunal is authorised to proceed to decide the review in the applicant’s absence” (at [16]).
Similarly in this case the Tribunal met its obligations under the Migration Act insofar as such obligations apply to a re-scheduled hearing. In particular the Tribunal gave the applicant notice of the amended date place and time at which he was scheduled to appear, even though he did not actually receive such notice and despite the fact that there is no suggestion of fault on his part.
The applicant alleged a lack of procedural fairness. The decision of the Full Court of the Federal Court SZDPB v MIMA [2006] FCAFC 110 is in point. In that case a hearing invitation was sent to an applicant by the Tribunal. The applicant claimed not to have received the invitation before the time specified for the hearing. The Court (Spender, French and Cowdroy JJ) held at [17] that a Federal Magistrate had been correct in his conclusion that there was no want of procedural fairness arising from the claimed late receipt of the hearing letter. It was pointed out that section 425 requires the Tribunal to invite an applicant to a hearing and held that that had been done by the process referred to in section 425A. Their Honours stated at [17]:
It is not to the point that actual notice was not received by the [applicant] in this case until after the date for hearing. Compliance with the regime referred to in sections 425, 425A and 441G satisfies the requirements of procedural fairness to an applicant, section 422B.
While this is not a case in which it has been suggested that the hearing invitation letter arrived late, it is clear that the Full Court was of the view that where the Tribunal complied with the regime referred to in ss.425, 425A (and, if relevant 441G), then, because of s.422B, that satisfies the requirements of procedural fairness to an applicant in relation to the natural justice hearing rule even though no actual notice of a hearing had been received by the applicant at the time of the hearing.
In this case the Tribunal complied with the regime referred to in ss.425, 425A and 441A. The applicant was taken to have received the letter of 22 May 2006 by virtue of s.441C. While the notice in question related to a re-scheduled hearing, there is nothing in the material before me which distinguishes SZDPB such as to establish a jurisdictional error arising out of a lack of procedural fairness. I also note that the Full Court in SZDPB referred with approval (at [18]) to what the differently constituted Full Court had stated in VNAA above in relation to the application of s.441A to an invitation given under s.425 of the Act.
In these circumstances, in light of s.422B, it has not been established that the fact that the applicant was not aware of the postponed hearing date constituted a lack of procedural fairness or other jurisdictional error on the part of the Tribunal. This is not a case in which it has been suggested that such scope as there is for the operation of principles of procedural fairness outside the limitations of s.422B establishes jurisdictional error.
I note, for the benefit of the applicant, that the Court has no discretion or power to remit a matter to the Tribunal on compassionate grounds based on the fact that he did not receive actual notice of the Tribunal letter of 22 May 2006. This may be a matter that he can raise with the Minister for Immigration and Citizenship but all that this Court can do is consider whether there was a jurisdictional error. No such error is apparent, either because of a failure to comply with the statutory procedures (as interpreted by the Full Court of the Federal Court) or a failure to accord procedural fairness in the sense in which that is constrained by the provisions of the Migration Act, in particular section 422B.
The Tribunal was entitled to make a decision without taking further action to enable the applicant to appear before. It was open to the Tribunal on the limited material before it to find that it could not reach the level of satisfaction required by s.65 of the Act. The Tribunal was not obliged to accept at face value the applicant’s claims. When the applicant in fact failed to attend the hearing (despite the absence of fault on his part), under the statutory procedures prescribed in the Migration Act 1958 a decision affirming the decision of the delegate to refuse him a protection visa was the result. While there is no suggestion that the applicant was at fault, rather such a decision was the “inevitable” result of the application of the provisions in the Migration Act in accordance with VNAA and SZDPB in circumstances where there was limited information before the Tribunal which was not such as to lead it to decide the review in the applicant’s favour.
There is nothing in the material before me to suggest that the Tribunal fell into jurisdictional error in any other way in its procedures or decision. Notwithstanding the brevity of the Tribunal decision, given the nature of the applicant’s claims and the absence of further information it was open to the Tribunal to affirm the decision of the delegate. In these circumstances the Court has no alternative but to dismiss the application.
The applicant has been unsuccessful and the first respondent seeks that he meet the costs of these proceedings in the sum of $3,000. As he has been unsuccessful it is appropriate that the applicant meet the costs of the first respondent. He told the Court that he was not in a position to pay at present, as he earned a limited amount. This is not, however, a reason for not awarding costs, although it may be a matter to be taken into account by the first respondent in determining when and how to seek to recover such costs. The amount sought is at the lower end of the costs normally awarded in proceedings of this kind and I consider it is appropriate in light of the nature of this and other similar matters. It is also appropriate to amend the name of the first respondent as it has changed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 25 July 2007
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