SZJLV v Minister for Immigration
[2007] FMCA 1501
•17 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJLV v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1501 |
| MIGRATION – RRT decision – Chinese applicant fearing persecution for religion – safe refuge in Papua New Guinea found by Tribunal – decision made in absence of applicant at hearing – no jurisdictional error found. |
Migration Act 1958 (Cth), ss.36, 36(2), 36(3), 36(4), 36(5), 417, 424A(1), 424A(3)(a), 426A(1), 430B, 430B(3), 430B(5), 430B(6), 441A(2), 441G, 476, 477
Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155
Convention relating to the Status of Refugees [1954] ATS 5, art.33
Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543
Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105
NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 222 CLR 161
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZFOH v Minister for Immigration & Citizenship [2007] FCAFC 63
SZIVA v Minister for Immigration & Anor (2006) 204 FLR 95
| Applicant: | SZJLV |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2836 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 17 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms S Sirtes |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2836 of 2006
| SZJLV |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 4 October 2006, which has been set down for a final hearing today under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal dated 9 February 2001 and handed down by way of posting to the applicant and to his agent on 2 March 2001. The Tribunal affirmed a decision of a delegate made on 11 May 2000, refusing to grant a protection visa to the applicant in response to an application he made through an agent on 10 April 2000.
The Court’s jurisdiction under s.476 is subject to a time limit provided in s.477, which imposes a maximum period of 84 days for making an application to this Court after “actual (as opposed to deemed) notification” of the Tribunal’s decision on the applicant. The Minister initially filed a response contending that that period had elapsed in the present case, and that the application was therefore incompetent. At a directions hearing before me the applicant indicated, not on oath, that he thought he had received the Tribunal’s decision in 2001. When questioned today under oath his evidence was less clear, but I find it probable that he did actually receive knowledge of the adverse decision against him, and the ability to read the Tribunal’s reasons if he wished to do so, at some point during 2001. At that time, he would have been able, at least, to read the copy of the decision which had been sent to his agent. I note that a letter apparently signed by the applicant, and dated 28 March 2001, made an application to the Minister under s.417 of the Migration Act.
Under the construction of s.477 which was adopted in this Court, in particular in my judgment in SZIVA v Minister for Immigration & Anor (2006) 204 FLR 95, the time limit applied if the Court were satisfied as to two things. First, that notification had been made by the Tribunal in accordance with one of the forms of notification set out in the procedures governing the decision‑maker, in this case s.430B of the Migration Act. Secondly, where the Tribunal followed a form of notification which did not include actual delivery to the applicant in person, that at some later point of time the applicant, in fact, had received a copy of the Tribunal’s decision and reasons. My opinions were followed in this Court, albeit with some difference of opinion with Driver FM in relation to what was needed for there to be an actual “receipt” of the decision.
However, the Full Court in Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105 has implicitly declined to follow this Court’s construction of s.477. Their construction, as I understand it, is that an “actual notification” can only occur where the formal mode of notification which was followed by the Tribunal itself involved an actual delivery to and receipt by the applicant in person. The fact of an “actual notification” within ordinary language at a subsequent date is insufficient, in their Honour’s opinion, to cause the time limit to commence to run, if the Tribunal had followed one of the “deeming” modes of notification provided under the Migration Act.
As a result of SZKKC, no time limit on an application for judicial review can arise under s.477 in the majority of decisions handed down by the Refugee Review Tribunal and the Migration Review Tribunal, since seldom does an applicant attend at the handing down ceremony to receive notification under ss.430B(3) and 430B(5). Nor is it realistic, as Gyles J pointed out in SZKKC for the Tribunal to follow the notification procedure provided in ss.430B(6) and 441A(2), since this would require hand‑delivering a copy of its decision and reasons to an applicant within 14 days of the handing down ceremony.
I am informed that the Minister has lodged an application for special leave to appeal to the High Court in SZKKC. If leave is granted, then the High Court will have the opportunity to address the differences of opinion between the two Courts. It will also be able to consider what might be a simpler construction: that “actual notification” in s.477 means only what it says in ordinary language, and does not invoke any of the requirements in relation to technical notification as set out in other provisions of the Act. However, I am bound by SZKKC, and the Minister has conceded that its effect in the present case is that I am unable to find that actual notification has ever occurred.
The Minister made an alternative submission that, if jurisdictional error were found to affect the Tribunal’s decision, the Court should decline to give relief in its discretion, due to unexplained and unwarrantable delay in bringing the application over the five year period since the handing down of the Tribunal’s decision.
The applicant did not present any evidence in his affidavits explaining that delay. In oral evidence under oath, he was questioned concerning his knowledge of the Tribunal’s proceedings. He initially gave evidence that he had instructed his migration agent in Melbourne to pursue all avenues including his appeal, and that he then left Melbourne and had no further contact with his agent, so that he was unaware of an invitation to a hearing and, by implication, any other event in relation to his appeal. However, under further cross–examination, he became entangled in inconsistent statements he had made in his application to this Court as to his reasons for not attending the Tribunal’s hearing, and he ultimately admitted that he had been giving untrue evidence. In response to questions by me about his five year presence in Australia, he admitted that he had become aware of the Tribunal decision.
Considering all of his evidence, I was not persuaded that he had any acceptable reason for not having sought orders of this Court earlier. I was inclined to find that he had made a deliberate choice to remain in Australia unlawfully rather than pursue his immigration rights. However, I do not need to make findings about this, since I am not persuaded that the Tribunal’s decision was affected by any jurisdictional error.
The applicant arrived in Australia in February 2000, and a migration agent lodged his application for protection on 10 April 2000. A statement attached to the application set out his reasons for seeking protection in Australia against return to his country of nationality, The People’s Republic of China. It also explained why he did not wish to return to Papua New Guinea, where he had been working since 1998.
In his statement, he said that he came from a family which believed in Christianity, and that his mother had been persecuted, including by being arrested in 1993 and 1997 for organising religious activities. He claimed that on the last occasion “she was seriously wounded by brutally beaten and tortured which made her semi‑paralysed”. He claimed that he had “sued the police for their violence”, but was taken to the police station, beaten‑up, and warned against seeking to “speak for and defend my mother again”. He claimed that “under such circumstances I realised that I could no longer live in China”, and therefore obtained employment in Papua New Guinea. In Papua New Guinea he “found the public security there was very poor. The natives often rob, harass and murder foreigners, especially people from China”. He said: “I find that it is very dangerous to live and work in PNG and there is no security for my life. In the meantime, I dare not return to China as well”.
A delegate refused the application on the ground that Australia did not owe protection obligations to the applicant for the purposes of s.36 of the Migration Act. The delegate relied upon the fact that the applicant’s passport showed a multiple re‑entry visa which stated: “this permit extends entry permit [number] to entitle the holder to enter and stay in PNG until 25 Nov 01”. The delegate made a finding:
I find that the applicant has effective protection in Papua New Guinea, which includes the right to enter and reside in that country. On the basis of the country information I also find that Papua New Guinea will not return the applicant to China.
In a previous part of his decision the delegate referred to two sources of law in relation to this finding. First, the line of authority in the Federal Court including Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543, which found a principle of effective protection implicit from Article 33 of the Refugees’ Convention and s.36(2). The delegate also referred to s.36(3) which provides:
SECT 36
(3)Australia is taken not to have protection obligations to a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
(4)However, if the non‑citizen has a well‑founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.
(5)Also, if the non‑citizen has a well‑founded fear that:
(a)a country will return the non‑citizen to another country; and
(b)the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;
subsection (3) does not apply in relation to the first‑mentioned country.
On appeal, the applicant’s agent was authorised to act for the applicant again. The application for review gave a post office box address in Melbourne as the applicant’s address for service. A statement attached to the application repeated the applicant’s concerns that he would be persecuted in China for reasons of his religious beliefs, and in Papua New Guinea by reason of his Chinese ethnicity. Some country information relevant to both claims was forwarded to the Tribunal.
By letter dated 23 November 2000 sent to the post office box, which was the applicant’s then address for service last notified to the Tribunal, the Tribunal invited the applicant to attend a hearing on 8 February 2001. A copy of this letter was also sent both to the applicant’s agent and to his last stated residential address in Noble Park, Victoria. Under the relevant provisions of the Migration Act as they stood at that time, there was no requirement that such a letter must be sent addressed to an agent, since the provisions of s.441G as interpreted in SZFOH v Minister for Immigration & Citizenship [2007] FCAFC 63 had not been enacted. Service of an invitation such as the present was required to be effected under provisions which I discussed in SZIVA (see above at [55]‑[59]). These required the letter to be sent to the applicant’s last known address for service, and in my opinion that was done in this case.
On 6 December 2000, the Tribunal received a “Response to Hearing Offer” purporting to have a signature of the applicant on it, which indicated that he intended to attend the hearing. The form stated the applicant’s name and the same residential address as had previously been given to the Department and the Tribunal at Noble Park, and also had that address as his “address for service”. As I have indicated, the hearing invitation had also been sent to that address.
The applicant’s initial evidence in this Court was that, although he had lived at the Noble Park address in 2000, he had left there when he went to Sydney to work at some point during that year. In view of my concerns about his general credibility, I am unsure whether he in fact had left that address by December 2000, but in any event it is unnecessary for me to draw any conclusion about this. There was nothing in the response or otherwise before the Tribunal to cause it to doubt that he had received its notification of the hearing, and intended to attend the hearing. In fact, he did not attend, and no communication was ever made to the Tribunal to explain his absence.
According to a file note, an officer of the Tribunal sought to make enquiries with the applicant’s advisor. He made several phone calls, but was unable to get beyond the agent’s answering machine. The applicant had never given the Tribunal his own phone numbers, and there was, in my opinion, no other enquiry or procedure which the Tribunal was required to follow or consider before proceeding to exercise its power to decide the case as authorised by s.426A(1) of the Migration Act. I can see no ground for finding that the Tribunal’s decision to apply that provision was vitiated by any absence of power or failure properly to exercise discretion.
In its statement of reasons, the Tribunal identified the claims made by the applicant in the documents before it. It noted that in his protection visa application, and again in his statement supporting his application to the Tribunal, the applicant conceded that “I hold a working visa issued by Papua New Guinea government”. In my opinion, the applicant invited the Tribunal to take into account the details shown in that re‑entry visa, and it was not obliged to put that information back to the applicant for comment under s.424A(1).
The Tribunal said:
The Tribunal has taken into account that the Applicant entered PNG on a valid work visa and that the visa continues to be valid and so he has a right of re‑entry. It has no evidence before it that PNG refuses admission to those who have current visas for that country. The Tribunal is satisfied that should he present himself at the PNG border, he would be admitted.
In my opinion, these findings were intended to, and did, address the provisions of s.36(3), as to whether the applicant had a right to enter and reside in Papua New Guinea. The Tribunal also implicitly found that he had not taken all possible steps to avail himself of that right, since this was obviously the case.
The Tribunal earlier in its discussion referred both to the provisions of ss.36(3) and 36(5), and also to the Thiyagarajah principle which at that time was thought to be good law. Subsequently, the High Court overruled the Federal Court (see NAGV and NAGW of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 222 CLR 161). However, in my opinion the Tribunal’s present decision is not vitiated as a result of that overruling, since its findings also sufficiently addressed the alternative principle of safe third country refuge provided under s.36(3). The Tribunal also addressed the requirements of ss.36(4) and 36(5) by considering the applicant’s safety in Papua New Guinea, and whether he would be returned by the Papua New Guinea government to China.
In relation to s.36(4), the Tribunal made findings which referred to country information:
The Report’s assessment on PNG is mixed. It notes its very real problems with crime and with, for example, its violence against women. It does not support the Applicant’s claim that he, as a Chinese national, would suffer persecution for that reason and that the State has no protective measures in place. That is, it does not support his claim that being Chinese places him at a differential risk from other potential victims of crime. The Tribunal is satisfied that the government does have protective measures in place. It is satisfied that the Applicant would be able to make complaints to the police, to human rights or community organisations and to elected officials should he need to do so. The Applicant has not claimed that he has been a victim of crime in the past. The Tribunal is satisfied that, while no guarantee can be offered to anyone that there will be no crime in the future, the Tribunal is satisfied that this absence of certainty make the Applicant a refugee vis‑à‑vis PNG.
I consider its last sentence of this passage contains an obvious slip and that it should be read as stating: “the Tribunal is [not] satisfied that this absence of certainty make[s] the Applicant a refugee vis‑à‑vis PNG”.
The Tribunal also made findings addressing s.36(5):
The Tribunal is satisfied that there is no real chance of persecution of the Applicant in PNG. It is satisfied that there is effective protection for him in that country and that he will not be refouled to his country of nationality, China. It is satisfied that the Applicant could, if he wished to do so, apply for protection in PNG. It is satisfied that Australia’s obligations are not raised in this case.
In my opinion, the Tribunal showed a proper appreciation of the issues needed to be addressed under ss.36(3) to 36(5), and I am unable to identify jurisdictional error affecting its reasoning or its ultimate decision.
The application to this Court contains general allegations of breach of rules of natural justice, failure to observe procedures, and improper exercise of power. The particulars of these allegations are:
a,The Tribunal did not consider the information and the evidence provided by me completely and fairly before, and after the hearing. The evidence provided by me has strongly indicated that I would be persecuted either in China and in PNG (Papua New Guinea), I believe that I should be a refugee whom should be protected by Australian government.
b,The Tribunal did not give me the chance to provide further information and evidence regarding my application which could prove that even in PNG, I would have well founded fear of persecution.
c,In fact, the Tribunal has apparently failed to give me the important information, completedly and clearly, during the review, which have been used as the reason or part of the reason, for affirming the decision that is under review; The Tribunal has, particularly, failed to ensure me, during the review, to well understand why the Country Information which were collected by RRT, is relevant to the review; It is because of the reason mentioned above that it is impossible for me to have a fair chance to comment on the Country Information before RRT affirming the decision; I believe that the Tribunal should provide me a complete Country Information or the particular information which would be the reason or part of the reason, for affirming the decision that is under review, by one of the methods specified in s441A of the Act before they made the decision, so that I could make any comments on the information;
d,In addition, the reason that I did not attended the hearing is that I got a severe fever at the day of the hearing, I have let my friend to inform RRT, but I did not know why RRT said they were not noticed. I believe the situation is beyond my control.
I consider that paragraph (a) raises an argument going only to the merits of the factual assessments of the Tribunal, and does not raise any jurisdictional error.
In relation to paragraph (b), the Tribunal did give the applicant the chance to provide further information and evidence, including by complying with the requirements of the Migration Act in relation to inviting him to attend a hearing.
In relation to paragraph (c), I can identify no information required to be put to the applicant under s.424A(1). As I have indicated above, I consider the information in relation to the applicant’s PNG entry visa was “given” to the Tribunal by the applicant in his written statement accompanying his review application, which effectively invited the Tribunal to consider the contents of the visa application (cf. Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155 at [16]‑[17], similarly NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 at [63]). The contention that the Tribunal was obliged to give the applicant written notice of general country information intended to be relied upon is inconsistent with the statutory provisions of s.424A(3)(a).
In relation to paragraph (d) of the applicant’s particulars, the applicant in his evidence today denied that this reason for his absence was true. In his evidence, even if accepted in its entirety, he did not present any ground or any facts which, in my opinion, would allow the Tribunal’s decision to proceed under s.426A(1) to be regarded as invalid. Nor did he present any facts relating to his agent’s conduct which could be regarded as coming within the circumstances addressed by the High Court in SZFDE v Minister for Immigration & Citizenship [2007] HCA 35.
The applicant filed a written submission which made further contentions which were not in his application. There is a contention that the Tribunal’s invitation letter miscarried by being sent to the wrong address. Reference is made to the “response to hearing invitation form” which referred to the applicant’s residential address as being his address for service. However, even if that document had the effect of making that address the applicant’s address for service, the invitation letter had been sent to the correct address at the time it was sent. The reference to the home address as the applicant’s address for service had no special significance in relation to the Tribunal’s decision to proceed in the absence of the applicant from the hearing, since the Tribunal would have believed that the applicant had received his invitation at that address, since a copy had been sent to that address as well as to the applicant’s post office box previously given as his address for service.
The other arguments presented in the applicant’s written submission have been addressed by me in my above conclusions.
The applicant had no submissions addressing issues of jurisdictional error to make to me orally today.
For the above reasons, I am not satisfied that the Tribunal’s decision was affected by jurisdictional error. I consider that the applicant has not made out an entitlement to relief by way of writs of certiorari and mandamus. I therefore do not need to consider whether his delay should also cause the Court to refuse relief. I dismiss the application.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 17 September 2007
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