SZKBO v Minister for Immigration
[2007] FMCA 1019
•29 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKBO v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1019 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming particular social group and political persecution in India – applicant not responding to hearing invitation from the Tribunal but submitting written material – failure to attend hearing before the Tribunal – whether the exercise of discretion under s.426A of the Migration Act 1958 (Cth) miscarried with the result that the Tribunal failed to discharge its duty under s.425 considered – no consideration by the Tribunal whether the hearing invitation received by the applicant or whether he could be deemed to have received it – no attempt by the Tribunal to contact the applicant on a telephone number supplied by him and put before the presiding member – jurisdictional error found. |
| Evidence Act 1995 (Cth), ss.160, 163 Migration Act 1958 (Cth), ss.425, 425A, 426A, 441A, 441C |
| NAST v Minister for Immigration [2004] FCAFC 208 SJSB v Minister for Immigration [2004] FCAFC 225 VNAA v Minister for Immigration [2003] FCA 1474 |
| Applicant: | SZKBO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG209 of 2007 |
| Judgment of: | Driver FM |
| Hearing date: | 29 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 29 June 2007 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr G Johnson DLA Phillips Fox |
ORDERS
A writ of certiorari shall issue, quashing the decision of the Refugee Review Tribunal signed on 1 December 2006 and apparently handed down on 21 December 2006.
A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the review application before it according to law.
There be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG209 of 2007
| SZKBO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 1 December 2006. It appears that the decision was handed down on 21 December 2006. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The background to the applicant’s arrival in Australia, his protection visa claims, his review application to the Tribunal and the Tribunal decision on it, are conveniently set out in written submissions filed on behalf of the Minister on 22 June 2007. I adopt as background for the purposes of this judgment, with minor amendments, paragraphs 2 through 17 of those written submissions:
The applicant is a male citizen of India born on 7 October 1974.[1] He arrived in Australia on 19 June 2006.[2]
[1] court book (CB) 13
[2] CB 15
The applicant applied for a Protection (Class XA) visa on 26 July 2006.[3] His claims were set out in a statement accompanying the application.[4] The application was refused on 9 August 2006.[5]
[3] CB 1
[4] CB 27
[5] CB 37
The applicant applied to the Tribunal for review of the original decision on 5 September 2006.[6] His further written claims were set out in an additional statement.[7]
[6] CB 45
[7] CB 49
The Tribunal wrote to the applicant on 21 September 2006 inviting the applicant to attend a hearing on 14 November 2006.
The applicant did not respond to this invitation. However, on 10 November the applicant submitted (by post) some written material to the Tribunal consisting of:
a)newspaper articles allegedly written by the applicant, published in his local Indian paper and translated into English;
b)a copy of a Press Identity Card for the applicant;
c)an account from a hospital in his town in India from 2004; and
d)a medical certificate from a doctor at that hospital in relation to the applicant, from 2006.
The applicant did not attend the hearing.[8]
[8] CB 75
The Tribunal proceeded to make its decision on 21 December 2006[9], without taking further action to enable the applicant to appear before it, pursuant to s.426A of the Migration Act 1958 (Cth) (“the Act”).
[9] CB 80
The Tribunal sent a letter to the applicant notifying him of the outcome of its decision on 21 December 2006.[10]
[10] CB 79
The applicant's claims
The applicant claimed that he feared persecution because of his membership of a particular social group and because of his political opinions.
The applicant claimed he was Muslim, and a political reporter. He also claimed that he was a member of his local political party in India, Majlees Teethadul Muslimeen (the MIM), and held the position of Assistant Secretary.
The applicant claimed in his protection visa application that on several occasions he was 'bashed', because of both his work as a political reporter and his role in the MIM. He claimed that on various occasions extremists from opposing parties made death threats, wounded him severely and tried to kill him. They also threatened his chief editor, and his family were beaten. At one stage the Police took him to hospital for treatment. At another stage he was kept in "unlawful confinement" (see CB 86) by extremist Hindu parties for two weeks, and was only freed upon promising to cease to write articles. He stated that a message was left for him that if he continued to write articles he and his family would face death.
Further, in a letter submitted with his Tribunal application, the applicant stated that his circumstances worsened since he left India, that his life was more in danger from his political opponents than the government, and that his articles were of concern to opposing party members throughout the country, and he could be identified and chased by anti-socials anywhere in the country.
The decision of the Tribunal
The Tribunal affirmed the delegate's decision not to grant a protection visa to the applicant. This was because there was insufficient evidence for it to be satisfied of the applicant's claims, which the Tribunal said were "untested and stated in the most general terms" (see CB 86).
In particular, the Tribunal found that detail and confirmation of the following claims were lacking:
a)when the alleged incidents took place;
b)whether the alleged incidents were all reported to the police;
c)the outcome of any police investigation;
d)the harm, if any, suffered by his family members;
e)details of his 'unlawful confinement' for two weeks;
f)whether that confinement was reported to the police, and if so, the outcome of any police investigation;
g)whether he has written or published any further articles since then;
h)why his political situation had worsened since he left India;
i)details of why he is in more danger from his political opponents and how he can be identified and pursued anywhere in the country;
j)details of what the hospital account and medical certificate related to; and
k)the applicant's prospects of relocation.
The Tribunal found that due to this lack of detail, it was unable to be satisfied either of the veracity of the applicant's claims, or that he had a well-founded fear of persecution. Furthermore, it was unable to discuss with the applicant country information which may have been relevant to his particular claims.
These proceedings began with a show cause application filed on 22 January 2007. The applicant asserted actual notification of the Tribunal decision in that application on 28 December 2006. On that basis I find that the application was filed within time. With that application, the applicant filed an affidavit on the same day in which he made numerous legal assertions in relation to the Tribunal decision and process. I received that affidavit as a submission.
In exploring the affidavit with the applicant, it did not appear to add anything of substance to the application. Although there are numerous errors asserted in the application and the affidavit the applicant’s key concern is that he lost the opportunity to appear before the Tribunal to answer questions and present arguments. The applicant asserts that he did not receive a hearing invitation from the Tribunal. I agree that this is the critical issue. The other issues are dealt with in the Minister’s submissions in paragraphs 22 to 24. I adopt those paragraphs with necessary amendments for the purposes of this judgment:
The Tribunal affirmed the decision of the delegate of the Minister to not grant the applicant a protection visa primarily on the basis that the Tribunal was not satisfied as to the veracity of the applicant's claims. The applicant failed to attend the hearing before the Tribunal. As the applicant did not respond to the Tribunal’s invitation to attend the hearing on 14 November 2006 for the purposes of providing further evidence in support of the applicant's claims, the Tribunal was left to consider the applicant's claims, which were, in the words of the Tribunal as stated above, 'untested and stated in the most general terms.'
a)In SJSB v Minister for Immigration [2004] FCAFC 225, the Full Court, at [15]-[16], concluded a legislative regime which required a positive state of satisfaction as to whether protection obligations are owed mandated a refusal decision if that state of satisfaction is not reached:
b)This conclusion is supported by another Full Court decision (see NAST v Minister for Immigration [2004] FCAFC 208 at [4]- [5]) where it is observed:
In its reasons for decision the RRT listed a number of significant matters about which the RRT would have wished to satisfy itself at a hearing. The primary judge held, correctly, that it was in no way irrational, arbitrary or capricious for the RRT to want an explanation about those matters.
In its reasons for decision, the RRT said that in view of the first appellant’s failure to attend the hearing, the RRT was unable to satisfy itself that the first appellant had a genuine subjective fear of persecution or that she had experienced any particular mistreatment or harm (let alone who inflicted the harm or for what reason or whether it amounted to persecution for a Convention reason). As the RRT was not satisfied that the first appellant faced a real chance of persecution for a Convention reason on return to Bangladesh, it was bound to affirm the decision of the Minister’s delegate to refuse to grant to the first appellant a protection visa.
The Tribunal was not satisfied on the evidence before it that the applicant was a person to whom it owed protection obligations under the Refugees Convention.
As to the specific grounds of review pleaded by the applicant, the applicant has made a plethora of varied claims relating to the alleged acting without, or in excess of, jurisdiction by the Tribunal. These grounds are not properly particularised and should be dismissed by this Honourable Court.
The only evidence I have before me in this matter is contained in the court book filed on 30 March 2007. That discloses that on 21 September 2006 the Tribunal prepared a letter to the applicant at the address disclosed in his review application inviting him to attend a hearing on 14 November 2006 (CB 59 and 60). The applicant did not respond to that invitation (CB 61). He did submit additional material in writing to the Tribunal (CB 62 to 74). The Minister’s submissions in relation to the asserted failure to invite the applicant to give evidence and present arguments are set out in paragraphs 25 to 30 of the written submissions:
Among its many grounds of review, the applicant claims to have not been invited to attend a hearing, required by section 425 of the Act.
The respondents say that the applicant was duly invited to attend a hearing by the RRT, and give evidence and present oral arguments, by letter dated 21 September 2006 (RRT invitation). The hearing was scheduled for 14 November 2006.
The RRT invitation was sent to the address nominated by the applicant on his application (see CB 47), for service of documents. No further correspondence was sent by the applicant to the RRT, or the first respondent, seeking to change the applicant's address for service.
Part 7 Division 7A of the Act provides a scheme for when a person is taken to have received documents from the Tribunal. If an invitation to a hearing is duly given to the applicant in accordance with Part 7 Division 7A, it follows that the applicant was invited to appear as required by s425(1). A failure to appear allows the Tribunal under s426A(1) to make a decision on the application in the absence of the applicant.
Even in circumstances where an applicant, in fact, did not become aware of the invitation to an RRT hearing, and the respondents do not concede such a circumstance in the present case, the conclusion mandated by Part 7 Division 7A that the invitation was duly given them, is not displaced. See VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1474 at [15].
We do not consider there to be any apparent reviewable error on the face of the RRT decision.
For his part, the applicant contends that he never received the hearing invitation and that his failure to respond supports that contention. He has provided no evidence to support that contention. He has confirmed that the address used by the Tribunal was the correct one. Curiously, the applicant used an incorrect address in his application to the Court and in his supporting affidavit but that has not prevented him from receiving correspondence. The applicant contends that the Tribunal should not have proceeded in his absence and should, at least, have made an attempt to telephone him at the telephone number disclosed in his review application (CB 46). I note that that telephone number is shown on the Tribunal hearing record document on page 75 of the court book. In its decision (CB 85), the Tribunal dealt with the question of the invitation to a hearing in the following terms:
On 21 September 2006 an officer of the Tribunal wrote to the applicant advising that the Tribunal had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The applicant was invited to give oral evidence and present arguments at a hearing of the Tribunal on 14 November 2006.
The applicant was advised that if he did not attend the hearing and a postponement was not granted the Tribunal could make a decision without further notice. The letter inviting the applicant to a hearing was sent to the above address in Wiley Park. The applicant had not provided the Tribunal with any other address for correspondence. The applicant did not respond to the invitation to the hearing.
On 10 November 2006 the applicant submitted some written material to the Tribunal consisting of seven newspaper articles allegedly written by the applicant and published in the Shaher Hyderabad Urdu Daily translated into the English language. There was also a copy of a Press Identity Card for the applicant, an account dated 12 November 2004 from the R.K Hospital in Hyderabad and a Medical Certificate dated 11 October 2006 from a Dr Admed at the R.K. Hospital in Hyderabad in relation to the applicant. It indicates, inter alia, that the applicant was under the treatment of Dr Ahmed for ten days from 1 October 2006 to 10 October 2006 and was “fit to join duty” on 11 October 2006.
The applicant did not attend the hearing on 14 November 2006. At the time of signing this decision the Tribunal has not been provided with any other address for correspondence. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.
Under s.426A of the Act, the Tribunal is permitted, but is not required, to proceed in the absence of an applicant who has been properly invited to a hearing and who fails to appear at a scheduled hearing. The discretion thereby conferred on the Tribunal must be exercised judicially. The hearing opportunity offered pursuant to s.425 of the Migration Act is an important one. An applicant should not be deprived lightly of that opportunity. Where a Tribunal is satisfied that a hearing invitation has been sent in accordance with the Migration Act and Regulations[11] the Tribunal is entitled to rely on provisions deeming receipt of that correspondence[12]. In this case, the letter to the Tribunal was addressed to the applicant’s correct address but there is no evidence of when, or indeed whether, the hearing invitation was despatched. The Minister’s submissions simply assume despatch in accordance with s.441A. In order to be able to rely on the deemed receipt provisions, the hearing invitation, if sent by pre-paid post, would have had to have been despatched within three working days of the date that it bore[13]. There is nothing before the Court to support, directly, any proposition that the letter was despatched in accordance with that requirement, or at all. I am invited to draw an inference that it was.
[11] see s.441A
[12] see s.441C
[13] see s.441A(4)(a)
The Tribunal decision is silent as to when the hearing invitation was despatched. The Tribunal seems to have assumed that it was despatched in accordance with s.441A(4). As no evidence of despatch is available to the Court, I infer that none was available to the Tribunal. In the circumstances it is questionable whether the Tribunal was entitled to rely upon s.441C of the Migration Act. If the Tribunal could not rely upon s.441C, then it is questionable whether the Tribunal could rely upon s.426A to proceed in the absence of the applicant.
In this regard the Evidence Act 1995 (Cth) (“the Evidence Act”) is relevant. Section 160 of the Evidence Act provides that it is presumed, unless evidence sufficient to raise doubt about the presumption is adduced, that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external territory was received at that address on the fourth working day after having been posted. Sub-section (2) provides that the section does not apply if the proceeding relates to a contract and all the parties to the proceeding are parties to the contract and sub-section (1) is inconsistent with the term of the contract. I proceed on the basis that s.160(1) applies in this case because, in the absence of relevant evidence, the section is not displaced by s.441C of the Migration Act. In the absence of any evidence as to whether, and if so, when the applicant received the hearing invitation, he is presumed to have received it four working days after the letter was posted. The Tribunal is, of course, not bound by the rules of evidence, but the Court is. I find in accordance with the presumption in s.160 of the Evidence Act that the applicant received the hearing invitation on the fourth day after it was posted.
The question then remains, when was the letter posted? There is no evidence of that either. Section 163 of the Evidence Act provides in subsection (1) that a letter from a Commonwealth agency addressed to a person at a specified address is presumed, unless evidence sufficient to raise doubt about the presumption is adduced, to have been sent by prepaid post to that address, on the fifth business day after the date, if any, that because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared. I proceed on the basis that this section also applies in this case. No evidence is available to rebut the presumption raised by s.163 of the Evidence Act.
For the purpose of these proceedings, therefore, the letter is taken to have been despatched five working days after the date that it bore. In the light of that presumption, s.441C of the Migration Act cannot operate because the precondition in s.441A(4)(a) is not met. It is open to the Minister and the Tribunal to displace the presumptions in the Evidence Act, but they have not done so.
The discretion in s.426A of the Migration Act is only enlivened where an applicant is invited to appear before the Tribunal “under” s.425. “Under” means in this context “in accordance with”. The section must be read with s.425A which provides that notice of the invitation must be given to the applicant (if he or she is not in immigration detention) by a method specified in s.441A. The relevant method in this case was despatch by pre-paid post which required despatch within three working days of the date of the hearing invitation notice. The Tribunal decision is silent as to whether any consideration was given to whether the discretion in s.426A was thus enlivened. I infer from the silence of the Tribunal and the absence of any evidence of despatch that the issue was not considered. The exercise of discretion under s.426A thereby miscarried and the Tribunal failed to meet its obligation under s.425.
Further, there is nothing in the Tribunal decision to indicate whether any attempt was made to contact the applicant at his telephone number provided to the Tribunal and noted in the Tribunal hearing record. It would seem to have been a simple matter for the Tribunal to make an attempt to contact the applicant by telephone, particularly as he had supplied a significant amount of additional written material to the Tribunal only a few days before the scheduled hearing. This is a further basis for concluding that the exercise of discretion under s.426A miscarried in this case and that, in consequence, the Tribunal did not comply with its obligations under s.425. I so find.
There is no doubt that a breach of s.425 of the Migration Act is a jurisdictional error. In consequence of that error, the applicant is entitled to relief in the form of the constitutional writs of certiorari and mandamus. I will make the following orders. A writ of certiorari shall issue quashing the decision of the Refugee Review Tribunal signed on 1 December 2006 and apparently handed down on 21 December 2006. A writ of mandamus shall issue requiring the Tribunal to redetermine the review application before it according to law.
I will order that there be no order as to costs given that the applicant has been self‑represented and has not paid any fees to the Court.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 July 2007
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