SZKDB & Anor v Minister for Immigration & Anor

[2007] FMCA 1036

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKDB & ANOR v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1036

MIGRATION – RRT decision – invitation to hearing – sent only to primary review applicant – no invitation addressed to secondary applicant – primary applicant invited as guardian of infant secondary applicant – form of application for review – secondary applicant appointed primary applicant as authorised recipient – invitation correctly addressed to primary applicant only – no jurisdictional error found.

Migration Act 1958 (Cth), ss.412, 425, 425(1), 425A(1), 441G(1), 474(1), 476, 477

Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1
SZAYW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 49
SZFOH v Minister for Immigration & Citizenship [2007] FCAFC 63

First Applicant: SZKDB

Second Applicant: SZKNM

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG336 of 2007

Judgment of: Smith FM

Hearing date: 25 June 2007

Delivered at: Sydney

Delivered on: 25 June 2007

REPRESENTATION

Counsel for the Applicant: Ms B Nolan

Counsel for the First Respondent: Mr G Kennett

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed. 

2. The first applicant must pay the first respondent’s costs in the sum of $4,500. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG336 of 2007

SZKDB

First Applicant

SZKNM

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 5 February 2007, which has been set down for a final hearing under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 December 2006 and handed down on 23 January 2007. The Tribunal affirmed a decision of a delegate made on 18 August 2006, refusing to grant protection visas to the two applicants. The two applicants are a mother and her daughter, who was born in January 2001. She was five years old at the time of the application for review to the Tribunal.

2. Under s.476 the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1), so that I do not have power to set aside the Tribunal’s decision, whether in relation to one or both of the applicants, unless I am satisfied that its decision was affected by jurisdictional error.

3. The application to this Court was originally brought only by the mother, but an amended application was filed on 10 April 2007 which joined the daughter. The daughter was, at a subsequent directions hearing, given leave to seek an extension of time under s.477 of the Migration Act if that were necessary. Neither counsel addressed me today on the necessity for an extension of time, nor on its merits. However, as I shall explain below, I have not found jurisdictional error affecting the Tribunal’s decision in the manner argued, and therefore I do not need to address questions of time limits affecting the daughter’s application to this Court. Nor do I need to address whether, if the ground which was argued is upheld, the Court’s order should only remit to the Tribunal the application to the Tribunal in relation to the daughter. That point also was not a matter addressed by either counsel.

4. The ground which has been argued concerns the validity of a notice given to the daughter of the hearing held by the Tribunal. 

5. The applicant mother arrived with her daughter in Australia in April 2006, and on 18 May 2006 an application for a protection visa was lodged showing the mother and daughter as applicants.  The daughter was shown as an applicant who “does NOT have their own claims to be a refugee, but is included in this application”.  However, both the delegate and the Tribunal subsequently did address whether the daughter had herself a Convention reason for fearing return to her country of nationality, the Philippines. 

6. The mother set out her own reasons for leaving the Philippines: 

   40Why did you leave that country? 

   I left the Philippines because I could no longer stand the grave threats and harassment I am receiving everyday from the father & family of my daughter.  I belong to a simple & hardworking family knowing that I have been raised by my parent which is my mother.  I have been with the father of my daughter for 6 yrs.  We never married for a reason that he physically abused me in all occasions which leads me to this decision, leaving him.  He was not happy, that’s why he’s harassing me & wants to take my daughter away from me.  And since they have connection to some powerful people back in the Philippines.  It will be for sure dangerous for us to go back home.  They might take my daughter away from me. 

7. These claims were later elaborated to the Tribunal, but it is unnecessary for me to examine the evidence which the mother presented and the country information which was considered by the Tribunal.  In short, the Tribunal found that the harm feared by the two applicants was not covered by the Refugees’ Convention, because the persons who were feared principally, being the mother’s former partner and possibly his family, had as their “essential and significant reason” for inflicting the feared harm reasons which were not for a Convention ground, but related to their personal circumstances. 

8. The Tribunal also addressed whether a Convention nexus could be found by reason of the applicant being denied State protection for a Convention reason against “the private harm they face”.  It found that the Filipino authorities and the authorities in the city where the applicants lived “do not condone the abuse of women and children and provide services to assist women in vulnerable situations”.  It also found that, if the Filipino police or authorities were motivated to withhold protection by reason of the influence of the former partner’s family, that would not be for a Convention reason. 

9. As I have indicated, no ground of review is raised by either the mother or the daughter challenging that reasoning of the Tribunal. 

10. The ground which is relied upon is: 

    1.The tribunal failed to comply with s.425 of the Migration Act 1958 because it did not give to the second applicant notice of the day on which, and the time and place at which she was scheduled to appear at the hearing, but rather only gave it to the first applicant: see Sanaul Haque Khan & Anor v Minister for Immigration and Citizenship (SYG2739 of 2006) per Scarlett FM. 

11. To consider this ground, it is necessary to examine closely the form of the application for review which was lodged by the applicants with the Tribunal, and the form of the hearing invitation which was sent by the Tribunal to the mother only. 

12. The application for review was completed on what appears to be a standard form available to applicants appealing to the Refugee Review Tribunal.  The form allows joint applications by family members, so that it identifies a principal applicant and other applicants.  The form invites the principal applicant to identify herself or himself with their address and details of any authorised recipient, without making such provision in relation to the other applicants.  The form then invites the other applicants to sign declarations recognising the joint nature of the application. 

13. Thus, at the start of the form there is a Section A which commences: 

    Details of persons included in this application 

    Any persons included in the decision made by DIMIA should be included in this application.  All applicants must be in Australia on the date the decision was made and on the date the Tribunal receives this application.  Each person is an applicant in his or her own right.  Unless an included applicant advises the Tribunal otherwise, the Tribunal will communicate with Applicant 1 or his or her authorised recipient.  Applicant 1 must inform each applicant of the contents of any communication from the Tribunal and reply to the Tribunal for them. 

14. There is then a table allowing the names of six applicants to be listed in a table showing their relationship to Applicant 1.  This has been completed in the present case by Applicant 1 being identified as the mother and Applicant 2 being the infant daughter. 

15. Section B of the form then provides information about Applicant 1, being his or her name and residential address and contact details.  This has been completed in the present case by the applicant mother completing her residential address at Croydon Park. 

16. Section C appears to be directed at applicant 1, and asks: “Do you have an adviser you authorise to act for you in relation to this application?”  This has been completed in the present case with the designation “N/A”, that is, not applicable. 

17. Section D of the form commences: 

    Where do you want us to send correspondence about your application? 

    You may choose to have all correspondence sent to yourself or you may nominate a person known as an authorised recipient to receive correspondence on your behalf in connection with the review. 

    If you nominate an authorised recipient the Tribunal will send all correspondence to your authorised recipient.  The Tribunal only sends copies of correspondence to applicants who have nominated an authorised recipient where the applicant is in immigration detention. 

    If you have an adviser and you do not appoint your adviser as your authorised recipient, your adviser will not receive any correspondence from the Tribunal. 

    If you do not nominate an authorised recipient all correspondence on your case will be sent to you. 

18. In the present case the applicant mother completed Section D by responding to the request: “Please send all correspondence in connection with this review (tick ONE box only in this section)”.  She did so by ticking a box applicable to the situation: “If you do not want to appoint an authorised recipient: To me at my address (if you tick this box all correspondence will be sent ONLY to your address provided below)”.  She then inserted the same address as was shown as her residential address. 

19. Section E of the form identifies the decision to be reviewed, being in the present case the single decision made by the delegate concerning both the mother and daughter’s applications for protection visas. 

20. There is then Section F: 

    Applicant’s declaration 

    Please read and sign this declaration.  If this application includes more than one applicant, this declaration must be signed by all applicants.  If any applicant is under 18 years of age or lacks legal authority to sign on their own behalf, a parent or guardian should sign on their behalf. 

    I declare that: 

    Øthe information I have supplied on or with this form is complete and correct in every detail 

    ØI undertake to inform the Refugee Review Tribunal of any changes to my personal circumstances (e.g. marital status, changes to the family composition) while my application is being considered.  I understand that if I change my contact details and do not inform the Tribunal of my new address, the Tribunal may proceed to make a decision on my case even if it cannot contact me. 

    ØI have read and understood the information supplied to me in this application form 

    ØIf this application includes more than one applicant, I undertake to inform each other applicant of the contents of any communication from the Tribunal and reply to the Tribunal for them. 

Applicant 1:   Signature  [signature]  Date  07 SEPT. 06 

If this application includes more than one applicant 

I declare that: 

Øthe information I have supplied on or with this form is complete and correct in every detail 

ØI have read and understood the information supplied to me in this application form 

ØUnless I advise the Tribunal otherwise, I authorise the Tribunal to communicate with Applicant 1 or his or her authorised recipient about this application. 

Applicant 2:   Signature  [name]      [signature]               BY MOTHER  Date 07 SEPT. 06

… 

I note that Applicant 2 has signed “BY MOTHER”. 

1. The invitation to a hearing of the Tribunal was sent on 12 October 2006, by letter addressed only to the mother at her residential address and address for correspondence.  It followed the usual form, and said: “we now invite you and any persons listed below to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims.  ...”.  It identified a hearing date for 10 November 2006 and invited the return of a “Response to Hearing Invitation” form.  At the end of the letter it said:  

   You should inform:  

   Miss [the daughter’s name]  

   about this letter, and any reply will be regarded as a joint response unless we are advised otherwise. 

2. A response to hearing invitation was received by the Tribunal on 25 October 2006 signed by the mother, which indicated that she did wish to attend a hearing.  A “Yes” box had also been ticked in response to the question:  

   If your application includes other family members, does any family member want a separate hearing? 

3. This caused the Tribunal to query the applicant, given that the other family member was an infant.  An officer of the Tribunal telephoned the applicant and spoke to her on 30 October 2006.  A note of the conversation records: 

   The applicant told me that she did not requested separate hearing.  She confirmed that the family she has is her daughter which she is 5 years old.  I told her I would pass the message to the Tribunal Member. 

   The hearing then proceeded with no record of the daughter actually being brought to the hearing. 

4. In the above circumstances, counsel for the applicant argues that the Tribunal had jurisdictional obligations under s.425(1) to invite both applicants “to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review”. She argued that the obligations of notification of the invitation under s.425A(1) were applicable to each of the applicants. It provides:

   425ANotice of invitation to appear 

   (1)If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear. 

   (2)The notice must be given to the applicant: 

   (a)     except where paragraph (b) applies–by one of the methods specified in section 441A; or

   (b)     if the applicant is in immigration detention–by a method prescribed for the purposes of giving documents to such a person. 

   (3)The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period. 

   (4)The notice must contain a statement of the effect of section 426A. 

5. Counsel for the Minister accepted that, even where an application to a Tribunal was made by two people jointly on one form, the Tribunal was obliged to invite each of the applicants, treating them notionally as making separate applications under s.412 of the Migration Act. He conceded that the Act does not contain any provision expressly addressing the consolidation of two or more applications or the treating of one application as a joint application on behalf of multiple applicants. The Act therefore needs to be construed to discover by implication what formalities are required to deal with the common situation of applications by family members which are, in effect, a joint application.

6. Counsel for the applicants argued that in the absence of a letter expressly addressed to the applicant daughter, she had not been sent an invitation, and that this amounted to jurisdictional error upon which relief should appropriately be granted. 

7. Counsel for the Minister accepted that if the letter sent to the mother were not also able to be construed as a letter sent to the mother in a capacity whereby she acted as the recipient of correspondence on behalf of the daughter, the daughter would not have been invited in accordance with the requirements under s.425A(1). He also accepted that this would provide jurisdictional error in accordance with authorities such as SZFOH v Minister for Immigration & Citizenship [2007] FCAFC 63. He did not, however, concede that relief should be given if this had occurred, but submitted that there were discretionary reasons for refusing relief to the daughter. For reasons which will appear I do not need to address this submission.

8. Counsel for the Minister argued that, in a context where the mother had brought the application to the Tribunal on behalf of her infant daughter as well as on her own behalf, it was sufficient for one hearing invitation to have been sent to the mother, in effect, in both capacities. He argued that the relevant provisions of the Migration Act should be construed as allowing that the parent or guardian of a child is authorised to act on the child’s behalf by bringing applications to the Tribunal in the name of the parent on the child’s behalf, in accordance with “the ordinary rules of the common law” (citing Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at [103], [153] and [226]). I accept that submission.

9. I find that the application to the Tribunal in the present case was brought by the mother in two capacities, being both her personal capacity as a visa applicant who had been refused a visa, and also in her capacity as the parent of an infant who also had been refused a visa sought by the parent on behalf of that infant.  As is clear, her intent to bring an application in two capacities was apparent in the manner of the completion of the application for review form which I have described above.  

10. In my opinion, it therefore was appropriate and permitted by the legislation for the Tribunal to send one invitation to the mother inviting her to appear at a hearing in both capacities, and present the refugee claims made in relation to both persons. The letter sent to the mother plainly showed that the hearing was intended to provide the opportunity for both her claims and those of her daughter to be addressed by the Tribunal at a hearing held under s.425. The invitation was sent in a context where it had power to conduct a single hearing in relation to several applicants, where that was appropriate in the circumstances, as it plainly was here (see SZAYW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 49).

11. Counsel for the Minister also argued that the application for review completed by the mother and signed by her on behalf of her daughter “Applicant 2”, should be interpreted as containing in the third declaration made under Section F of the form, an authority satisfying s.441G(1) of the Migration Act.

12. This provides: 

    441GAuthorised recipient 

    (1)If: 

    (a)     a person (the applicant) applies for review of an RRT–reviewable decision; and

    (b)     the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;

    the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. 

    Note:If the Tribunal gives a person a document by a method specified in section 441A, the person is taken to have received the document at the time specified in section 441C in respect of that method. 

    (2)If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant.  However, this does not prevent the Tribunal giving the applicant a copy of the document. 

1. The authority given in that declaration was “I authorise the Tribunal to communicate with Applicant 1 or his or her authorised recipient about this application”.  In my opinion, a sensible interpretation of this authority in the context of the form which I have described above, is that the secondary applicant also intended to authorise the primary applicant to receive such communications by the Tribunal “about this application”, including by receiving documents on behalf of the secondary applicant who had given the authority. 

2. In my opinion, on its true interpretation, the form of application completed by all applicants, presented the primary applicant or that person’s “authorised recipient”, as the only person to whom correspondence should be sent in relation to all of the applicants.  I consider that such a form is consistent with the legislation, as well as presenting a sensible procedure.  Any secondary applicant who did not wish to appoint the primary applicant or their agent as his or her authorised recipient of correspondence would be free to complete their own application for review appearing as an Applicant 1.  In cases of applicants who apply to the Tribunal as family members of a primary visa applicant, it would be manifestly absurd to construe the legislation as requiring that separate invitations to a hearing must always be sent addressed to every joint applicant. 

3. If it is necessary, I would therefore also uphold the procedures followed by the Tribunal in this case on the basis that the mother on behalf of her daughter also appointed herself as the person authorised to act as an authorised recipient for “receiving documents in connection with the review” on behalf of the daughter within s.441G(1). On that interpretation of the application for review, the Tribunal was therefore bound only to send the hearing invitation to the mother (see SZFOH at [25], [49] and [1]).

4. For the above reasons I do not consider that the ground which has been argued before me today has been made out.  I am unable to discern any other jurisdictional error affecting the decision of the Tribunal, whether in relation to the mother or the daughter.  I must therefore dismiss the application. 

I certify that the preceding thirty‑six (36) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  9 July 2007