SZKUI v Minister for Immigration - [2007] FMCA 1387

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKUI v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1387

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – Minister required to show cause why relief should not be granted – applicant failing to attend Tribunal hearing – whether the Tribunal’s discretion under s.426A enlivened or miscarried considered – whether the Tribunal entitled to make an adverse credibility finding based on the failure of the applicant to appear considered – observations on whether the show cause application is competent.

Acts Interpretation Act 1901 (Cth), s.29
Evidence Act 1995 (Cth), ss.160, 163
Migration Act 1958 (Cth), ss.425A, 426A, 430
Federal Magistrates Court Rules 2001 (Cth)

Minister for Immigration v SZKKC [2007] FCAFC 105
WACB v Minister for Immigration (2004) 210 ALR 190

Applicant:

SZKUI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1910 of 2007

Judgment of:

Driver FM

Hearing date:

15 August 2007

Delivered at:

Sydney

Delivered on:

15 August 2007

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms K Hooper
DLA Phillips Fox

INTERLOCUTORY ORDERS:

Pursuant to r.44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) the first respondent is ordered to show cause why relief should not be granted to the applicant in relation to the issues identified in this judgment.
Any amended application or further affidavit evidence that the applicant wishes to rely on must be filed no later than 28 September 2007.
Any supplementary court book or affidavit evidence that the first respondent wishes to rely on must be filed no later than 31 October 2007.
Any affidavit evidence in reply that the applicant wishes to rely on must be filed no later than 30 November 2007.
The applicant is to file and serve an outline of legal submissions and list of authorities not less than 14 days before the final hearing date.
The first respondent is to file and serve an outline of legal submissions and list of authorities not less than seven days before the final hearing date, as well as e-mailing a copy to my associate.
The matter is listed for a final hearing at 2.15pm on 21 December 2007 before Federal Magistrate Driver in Court 6B at John Maddison Tower, 88 Goulburn Street, Sydney, with an estimated hearing length of

2 hours.
Costs of today’s interlocutory hearing are costs in the proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1910 of 2007

SZKUI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a show cause application seeking a review of a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was signed on 3 November 2006 and was apparently handed down on 28 November 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from China and had made claims of persecution based upon her practice of Falun Gong. She arrived in Australia on 7 May 2006. On 1 June 2006 she applied for a protection visa. The Minister’s delegate refused that application on 31 August 2006 and the applicant sought review of that decision by the Tribunal on 27 September 2006.
On 10 October 2006 the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to her application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and to present arguments at a hearing on 3 November 2006. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal might make a decision on her case without further notice. No response was received and the letter was not returned to the Tribunal. When the applicant failed to appear at the appointed time the Tribunal purported to exercise its discretion under s.426A of the Migration Act 1958 (Cth) (“the Migration Act”) to proceed in the absence of the applicant to make a decision.
The Tribunal’s decision was that, on the limited material before it, it could not be satisfied about the applicant’s claims. The Tribunal expressed the view that it would have wanted to explore the applicant’s claims further with her at a hearing. The Tribunal stated[1],
The applicant was warned by virtue of the Tribunal’s letter of 10 October 2006 that it had concerns about her statement of claims. She has chosen not to reply or to attend the hearing, where she could have responded to those concerns. This is not the behaviour of a person with a genuine fear of persecution.
[1] court book , page 87
It can be seen from that statement that the Tribunal used the applicant’s non appearance for dual purposes. The first purpose was the purported exercise of the Tribunal’s discretion pursuant to s.426A. The second purpose was to support an adverse credibility finding.
These proceedings began with a show cause application filed on 19 June 2007. The applicant had failed to state in that application when she was actually notified of the Tribunal’s decision. I discussed that omission with the applicant when the matter first came before me on 13 July 2007. She asserted actual notification on 10 June 2007 and with her agreement I inserted that date into the application. The application is supported by an affidavit filed on the same day. The affidavit attacks the merits of the Tribunal’s decision and I received it as a submission.
I received as evidence the court book filed in court on 13 July 2007. The Minister filed a response to the application on 28 June 2007. That response questions the competence of the application given the absence of any asserted date of notification and also asserts that no reasonable cause of action is disclosed by the application.
In the light of the decision of the Full Federal Court in the Minister for Immigration v SZKKC [2007] FCAFC 105 the Minister’s solicitors are instructed not to press the objection to the competency of the application. I note, however, that the Minister has sought special leave to appeal to the High Court from the decision of the Full Federal Court.
In view of the possibility that special leave might be granted and that the High Court might make a decision affecting this matter, I should say something about the issue of the competence of the application.
In SZKKC the Full Federal Court found, at [37], that the sole method of actual as opposed to deemed notification of the Tribunal’s written statement required by s.430 of the Migration Act, is delivery by hand. The Full Court reached that finding on the basis of its analysis of Part 7 of the Migration Act and the High Court’s earlier decision in WACB v Minister for Immigration (2004) 210 ALR 190.
At [38] the Full Court considered it unnecessary to give any attention to methods of proving delivery of documents under the general law. The Court, however, mentions s.29 of the Acts Interpretation Act 1901 (Cth) and s.160 of the Evidence Act 1995 (Cth) (“the Evidence Act”). The latter in particular is potentially significant. If it were possible for the Tribunal to effect actual delivery of its decision and reasons by post, s.160 establishes a rebuttable presumption that correspondence is received four working days after posting. In addition, s.163 of the Evidence Act establishes a rebuttable presumption that Commonwealth correspondence is posted five business days after the date the correspondence bore.
The Full Court pointed out that the Evidence Act has no application in the proceedings in the Tribunal. However, there is no doubt that the Evidence Act applies in proceedings in this Court, including in relation to jurisdictional facts determinative of the competence of a show cause application. Accordingly, in the absence of any evidence from an applicant sufficient to rebut those statutory presumptions, actual delivery of a Tribunal decision and reasons could be established by reference to the Evidence Act if postal delivery was sufficient.
In the present case the applicant has not to this point presented any evidence of non receipt of the Tribunal’s letter of notification dated 28 November 2006 and appearing on pages 79 and 80 of the court book.
The applicant took me to page 90 of the court book which is a handwritten request by her faxed to the Tribunal from the Villawood Detention Centre on 6 June 2007 seeking a copy of the Tribunal decision. The applicant relies upon that to support her contention that she did not receive a copy of the Tribunal decision and reasons until she received a copy supplied to her on 10 June 2007 in response to that request.
On the basis of the decision of the Full Federal Court in SZKKC it would not be open to the Minister to contend that the present application before the Court is incompetent. However, I do not rule out the possibility that that opportunity may arise should the High Court make a different decision to that of the Federal Court. In that event it would be a matter of considering the evidence then available relating actual delivery of the Tribunal decision and reasons by post or some other means. For present purposes I proceed on the basis that the application before me is competent.
The application before me raises no arguable case of jurisdictional error. It simply takes issue with the merits of the Tribunal decision which is beyond the scope of this proceeding. However, in her oral submissions the applicant raised an issue of legal substance. The applicant pointed out that on page 84 of the court book in dealing with the question of the exercise of discretion under s.426A of the Migration Act, the Tribunal stated:
No other information was held on either the tribunal’s file or on the Departmental file to enable the Tribunal to contact the applicant.
The inference to be drawn from that statement is that the Tribunal considered that the only means it had to contact the applicant was by post. That was incorrect. The applicant had supplied a mobile telephone number in her protection visa application to the Minister’s department[2], and had supplied the same telephone number to the Tribunal in her review application[3]. The telephone number was known to the Tribunal and was specifically made available to the presiding member[4]. The Tribunal had the means to contact the applicant by telephone should it have wished to. I infer from the Tribunal’s quoted passage at [16] above and its silence on that point, that it did not do so.
[2] court book, page 14
[3] court book, page 64
[4] court book, page 75
There is a question whether the Tribunal should have done so before using the applicant’s non appearance to make an adverse credibility finding against her and before exercising its discretion to proceed in her absence under s.426A of the Migration Act.
The Tribunal imputed to the applicant a motivation of choosing not to reply or not to attend the hearing. The only information to support that view was the failure of the applicant to reply and to appear. It was possible that the applicant might not have received the hearing invitation. It does not appear from the court book that the Tribunal did anything to check. Further, it is not apparent from the information in the court book whether the hearing invitation appearing on pages 72 and 73 of the court book was dispatched within three working days of the date that it bore.
The discretion under 426A is not enlivened unless the Tribunal sends the hearing invitation in accordance with s.425A. The Tribunal decision is silent on the question of whether the presiding member did anything to satisfy himself that the discretion was thus enlivened.
I have come to the view that the Minister should be ordered to show cause pursuant to r.44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) whether relief should be granted in respect to the issues identified in this decision.
I will also give the applicant a further opportunity to amend her application and file additional evidence should she wish to. The Minister should have a like opportunity.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Driver FM

Deputy Associate:

Date: 21 August 2007