SZKLV v Minister for Immigration and Citizenship

[2007] FCA 1927

FEDERAL COURT OF AUSTRALIA

SZKLV v Minister for Immigration and Citizenship [2007] FCA 1927

MIGRATION – visa – protection visa – tribunal received further material from applicant after it had handed down its decision – tribunal had advised applicant by letter to last address supplied by applicant that it intended to hand down its decision on a particular date – whether tribunal denied applicant procedural fairness in failing to take further material into account – no denial of procedural fairness

Migration Act 1958 (Cth) ss 5(1), 36, 91R(3), 415, 441A(4), 441C(4)

SZKLV v Minister for Immigration & Anor [2007] FMCA 1406
Chandler v Alberta Association of Architects [1989] 2 SCR 848 followed
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597 cited

SZKLV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1716 OF 2007

GRAY J
19 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1716 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKLV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAY J
DATE OF ORDER:	19 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the first respondent’s costs of the appeal, fixed at $2,700.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1716 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKLV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAY J
DATE:	19 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The principal question raised by this appeal is whether jurisdictional error can be established in relation to a decision of the Refugee Review Tribunal (“the Tribunal”), on the basis that the Tribunal did not consider material it received from the appellant after it had handed down its decision.  The appeal is from a judgment of the Federal Magistrates Court SZKLV v Minister for Immigration & Anor [2007] FMCA 1406. The learned Federal Magistrate dismissed the appellant’s application for judicial review of the Tribunal’s decision. The Tribunal was reviewing a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship (“the Minister”), refusing to grant to the appellant a protection visa.

2. The appellant is a citizen of the People’s Republic of China.  He arrived in Australia on 1 May 2006 with a valid visa.  He made an application for a protection visa on 9 May 2006.  The Minister’s delegate refused that application on 7 August 2006.

3. By s 36 of the Migration Act 1958 (Cth) (“the Migration Act”), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the applicant for the visa be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms “Refugees Convention” and “Refugees Protocol” are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call these two documents, taken together, the “Convention”. For present purposes, it is sufficient to note that Australia has protection obligations to a person who:

   owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.

4. The appellant’s claim to be such a person was based on the proposition that he is a practitioner of Falun Gong.  The Tribunal accepted that Falun Gong may be considered to be a religion and that those practising Falun Gong may constitute a particular social group.  The Tribunal also accepted that Falun Gong practitioners face persecution in China and that such persecution is for a Convention reason.  The Tribunal was not satisfied that the appellant was involved with Falun Gong.  It found him to be an untruthful witness whose evidence lacked credibility and consistency in certain key respects.  The Tribunal found that the appellant had invented his claims in relation to his Falun Gong activities in China.

5. The appellant gave evidence before the Tribunal and made submissions to it at a video-conference hearing on 27 October 2006.  After the completion of the hearing, the Tribunal sent a letter to the appellant inviting him to comment on a number of pieces of information that were potentially adverse to aspects of his claim.  The letter related to inconsistencies between the claims the appellant made in his protection visa application and his oral evidence at the hearing.  It also related to information the Tribunal had that was inconsistent with the appellant’s account of how he obtained a passport and travelled outside China on several occasions, returning to China without difficulty, circumstances that the

   
   

   Tribunal thought were inconsistent with the appellant’s claims.  This letter invited a reply by 20 December 2006.  The appellant did not respond by that date, although he subsequently acknowledged receipt of the letter.

6. On 17 January 2007, the Tribunal received further information from the appellant concerning Falun Gong practice in which he had engaged during and after December 2006 in Australia. The Tribunal then wrote a further letter, dated 23 January 2007, inviting the appellant to comment on information potentially adverse to aspects of his claims. This letter raised issues dealt with by s 91R(3) of the Migration Act, which requires that the decision-maker on an application for a protection visa disregard any conduct engaged in by the applicant in Australia, unless the applicant satisfies the decision-maker that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to entitlement to protection. The letter of 23 January 2007 sought a response by 16 February 2007. In this case, the Tribunal received a response on 1 February 2007. In that letter, the appellant acknowledged receipt of the letter dated 23 January 2007, as well as the earlier letter dated 27 November 2006. The letter received on 1 February also contained submissions by the appellant about various aspects of his claim.

7. At the same time as the letter received on 1 February 2007, which was dated 30 January 2007, the Tribunal received a form dated 30 January 2007, providing change of contact details.  This form was signed by the appellant.  It provides a postal address, being an apartment in Elizabeth Street in Surry Hills, New South Wales.  The nature of that address is somewhat mysterious.  The appellant has informed me from the bar table that the address given was never his address.  He said that he received assistance in relation to his application for a protection visa from a friend, a student, who speaks both English and Mandarin Chinese.  The appellant apparently saw this friend frequently and it is possible that the friend used an address accessible by him, in order to receive mail from the Tribunal on behalf of the appellant. 

8. The issue has significance because, by letter dated 15 February 2007, the Tribunal invited the appellant to the handing down of its decision in relation to his application to

   
   

   review the decision of the Minister’s delegate refusing a protection visa. That handing down was to occur on 7 March 2007. The letter of 15 February was addressed to the appellant at the Elizabeth Street, Surry Hills address. By s 441A(4) of the Migration Act, the Tribunal was permitted to send documents to an applicant by dating the document, despatching it within three working days of its date by prepaid post to the last address provided to the Tribunal by the applicant in connection with the review.

9. Applying the presumption of regularity, it would appear that the letter would have been posted, at the latest, by 20 February, that being three working days after the 15th. By s 441C(4) of the Migration Act, the letter was taken to have been received by the appellant seven working days after the date of posting, ie by 1 March 2007. The Tribunal handed down its decision on 7 March. On 14 March, it received further material from the appellant seeking to advance his claim to be entitled to a protection visa. By letter dated 22 March 2007, the Tribunal informed the appellant that it could not take into account this new material, because it had completed the performance of its statutory function by the handing down of its decision.

10. The Federal Magistrate held that the Tribunal was correct to reach this conclusion. His Honour referred to s 415 of the Migration Act, which sets out the powers of the Tribunal in dealing with an application to review a decision refusing a protection visa. The Federal Magistrate took the view that these powers did not extend to a consideration of material received by the Tribunal after the decision had been given.

11. In my view, the Federal Magistrate was correct to reach this conclusion.  In Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597, the High Court held that, when the Immigration Review Tribunal had denied an applicant procedural fairness, it was open to that tribunal to take the view that it had not performed its statutory function, to set aside its purported decision and to revisit the matter. As a step to reaching that conclusion, at [52], Gaudron and Gummow JJ cited with approval the judgment of the Supreme Court of Canada in Chandler v Alberta Association of Architects [1989] 2 SCR 848 at 861-862, where Sopinka J, which whom Dixon CJ and Wilson J concurred, said:

    As a general rule, once [an administrative] tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. 

12. The Supreme Court of Canada pointed out that the rule in relation to an administrative tribunal is more flexible and less formalistic than the rule in relation to a court which has given judgment.  Gaudron and Gummow JJ at [53] took the view that jurisdictional error on the part of a tribunal would deprive its decision of legal foundation and give rise to a duty to make the decision that the statutory obligation of the tribunal required to be made. 

13. The present case is manifestly a case in which the general principle applies.  All that occurred by reason of the receipt by the Tribunal of further material after it had handed down its decision was what amounted to a change of the circumstances with which the Tribunal had dealt.  There was no denial of procedural fairness.  The appellant had every opportunity to provide whatever evidence he wished to provide, both at and after the Tribunal’s hearing.  The letters of 27 November and 23 January specifically invited the appellant to provide further material. 

14. Although there may be some doubt as to whether the appellant was directly connected with the address given to the Tribunal when the change of contact details form dated 30 January 2007 was submitted, he did tell me that his friend mentioned to him any mail that the friend received.  If the appellant did not see the friend personally at his workplace, which he frequently did, the friend would telephone him.  Accordingly, it seems likely that the appellant in fact knew before 7 March 2007 that the decision was to be handed down. 

15. The appellant says that he had experienced some difficulty obtaining information from China, because he had been forced to move around in China several times before he left.  This may well be the case, but it can hardly affect the Tribunal’s statutory function or its powers.  It is clear that the Tribunal had completed the performance of its statutory function when it handed down its decision on 7 March 2007.  There was no jurisdictional error arising from a denial of procedural fairness that would have entitled the Tribunal to disregard its decision and reopen the application for review.

16. Apart from this issue, the appellant’s notice of appeal serves only to attempt to challenge the Tribunal’s findings as to facts.  The notice of appeal raises as grounds the proposition that the Tribunal’s finding of a number of jurisdictional facts was unreasonable.  Those jurisdictional facts are not specified and the appellant has not expanded upon that ground in argument. 

17. The only other ground is that the Tribunal failed to accept that the appellant is a Falun Gong practitioner.  It is not open to the appellant to challenge in this Court, and it was not open to him to challenge in the Federal Magistrates Court, the Tribunal’s conclusion on any question of fact.  Indeed, as the Federal Magistrate’s reasons for judgment demonstrate, the appellant did attempt to challenge in that court various findings of the Tribunal, on the basis that they were not reasonable, or were illogical.  He did not specify the findings that he characterised in those ways.  Even if he had done so, as the Federal Magistrate said, it would not have been open to the appellant to challenge the Tribunal’s findings of fact on an application for judicial review of the Tribunal’s decision. 

18. I can therefore find no error on the part of the Federal Magistrate.  The appellant’s appeal must be dismissed.

19. Consequent upon the dismissal of the appeal, counsel for the Minister, has sought an order that the appellant pay the Minister’s costs of the appeal.  The normal principle applied is that costs follow the event.  The appellant has not advanced any reason, and none appears, why this principle should not apply, other than that the appellant does not have stable employment and therefore does not have the resources to meet the order.  The fact that an unsuccessful litigant is impecunious is not generally considered to be a reason for refusing to award costs.  In the circumstances, it seems to me that I should order that the appellant pay the Minister’s costs of the appeal.  Counsel for the Minister has requested that I fix those costs in the sum of $2,700.  This does not seem at all an unreasonable figure for costs of a proceeding of this nature.  The appellant has contended that it is too high but has not offered a basis for the contention.  Accordingly, I shall fix the costs at $2,700.

20. The orders of the Court are:

    1.        The appeal be dismissed.

    2.        The appellant pay the first respondent’s costs of the appeal, fixed at $2,700.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated:        6 December 2007

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	Ms V McWilliam
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	19 November 2007
Date of Judgment:	19 November 2007