SZKUR v Minister for Immigration - [2008] FMCA 94

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKUR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 94

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no error in Tribunal proceeding to a determination pursuant to s.426A – requirements of ss.425 and 425A satisfied – no error in Tribunal not telephoning applicant regarding invitation to attend the Tribunal hearing – ss.425A and 441A codify methods of communication which Tribunal may use for s.425 invitation – such communication must be in writing – no breach of s.424A where applicant failed to attend Tribunal hearing and material before Tribunal failed to satisfy it that applicant satisfied visa criteria – failure by Tribunal to notify its decision not a jurisdictional error – failure to notify prevents time from running for the purposes of commencement of judicial review proceedings.

Migration Act 1958, ss.36, 65, 424A, 425, 425A, 426A, 430B, 441A, 441C, 477
Migration Regulations 1994, reg.4.35D

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195
SZFLM v Minister for Immigration & Citizenship [2007] FCA 863
SZKTR v Minister for Immigration & Citizenship [2007] FCA 1767
Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105

Applicant:

SZKUR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1965 of 2007

Judgment of:

Cameron FM

Hearing date:

27 November 2007

Date of Last Submission:

27 November 2007

Delivered at:

Sydney

Delivered on:

1 February 2008

REPRESENTATION

Counsel for the Applicant:

Mr. I. N. Asuzu

Counsel for the Respondents:

Mr. J. Mitchell

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1965 of 2007

SZKUR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant is a citizen of Nigeria where, he claims, as a man of Igbo ethnicity he feared being the victim of a “spiritual sacrifice”. The applicant left Nigeria for Australia where, he alleges, he does not have to fear being a human sacrifice.
The applicant claims to fear persecution in Nigeria because of the practice of human sacrifice within traditional Igbo society.
After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on

10 March 2006
. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the application will be dismissed

Background facts

The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 3 – 4 of the Tribunal’s decision (Court Book (“CB”) pages 61 – 62). Relevantly, they are in summary:
a)the applicant is a man of Igbo ethnicity and the Christian faith;
b)his father was killed around 1970 as a human sacrifice to appease the village oracle. The applicant referred to this as an Osu reason;
c)the applicant and his brother were taken to serve the shrine outside their village. They suffered deprivation and abuse and lived in misery until a bush fire in June 2004 destroyed the area and allowed the applicant and his brother to escape;
d)the applicant and his brother spent some time in Onitsha, the nearest city, but soon relocated to Abuja, Nigeria’s federal capital, where they were less likely to be found;
e)while sleeping rough, the applicant’s brother became ill and died;
f)the applicant was helped by a Christian man who found that there was a reward being offered to anyone who would bring the applicant back to the shrine; and
g)the applicant travelled to Australia with the Christian man. He fears returning to Nigeria because “the festival that requires our lives to be sacrificed is just around the corner” and the Nigerian government would not intervene in such a case of “spiritual sacrifice”.

The Tribunal’s decision and reasons

On 11 May 2006 the Tribunal wrote to the applicant at the address for correspondence which he had notified in his review application, to advise him that it had considered all the material before it in relation to his application but was unable to make a favourable decision on that information alone (CB 52 – 53). The Tribunal invited the applicant to a hearing on 16 June 2006 to give oral evidence and present arguments. The applicant was advised that if he did not attend the Tribunal might make a decision on his application without further notice. No response was received from the applicant and the applicant did not appear before the Tribunal on the day and at the time he was scheduled to appear. In these circumstances, and pursuant to s.426A of the Migration Act 1958 (“Act”), the Tribunal proceeded to make a decision on the review without taking any further action to enable the applicant to appear before it.
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal was not able to establish that the applicant suffered persecution for a Convention reason in the past or that the applicant would suffer serious harm amounting to persecution if he returned to Nigeria in the foreseeable future, noting that:
i)the applicant failed to submit further information to the Tribunal to support his claims;
ii)the applicant failed to appear at the Tribunal hearing to present further evidence and arguments; and
iii)his case rested on a series of assertions in an implausible story.

Proceedings in this Court

The grounds of the application were pleaded as follows:
1. The RRT failed to attain, or failed to exercise jurisdiction by reason that the RRT failed to accord procedural fairness by not providing a hearing at which the applicant could give evidence or present arguments in accordance with s.425(1) of the Migration Act 1958.
2. The RRT failed to consider the applicant’s claim for persecution and/or to comment on adverse information related to his personal claims of being a “member of particular social group” namely member of the “osu” caste in South Eastern Nigeria, in accordance with s.424A.
3. The RRT failed to apply and/or comply with notification provisions for the purposes of extending invitations to comment or to attend hearings.
Dealing with each of these grounds in turn:

Breach of s.425

The applicant submits that the Tribunal breached its obligations under s.425 of the Act because he failed to receive an invitation to attend a Tribunal hearing in accordance with that section which, relevantly, provides:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Whether the applicant received the Tribunal’s invitation is not to the point. The real question is whether he was properly invited to a hearing in accordance with the procedures prescribed by the Act and the Migration Regulations 1994 (“Regulations”). The relevant notification is reproduced at CB 52 – 53. On its face, that letter can be seen to meet the first and the fourth criteria of s.425A which provides:
(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) …
(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.
The service, or giving, of the notice cannot be determined from the notice itself. In this case the evidence of service is to be found in the Tribunal’s “No Reply – Checklist” document dated 9 June 2006 (CB 54) and in the Tribunal’s decision record.
In the former, the “yes” box was ticked against the following question:
Was the invitation sent to the correct address of the applicant or to the correct address of the authorised recipient (Check CMS and files for change of address notification, change of authorised recipient notification, status of the authorised recipient if it is a registered Migration Agent and the registration of that person has not been suspended or cancelled on online register the latter, the Tribunal said this:
On 11 May 2006 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 16 June 2006. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response was received.
The Tribunal checked to confirm that it had notified the applicant correctly at the address he had supplied to the Tribunal. (CB 61 – 62)
Based on those documents, I find that the Tribunal wrote to the applicant and I infer that it did so by post in accordance with s.441A(4) on 11 May 2006. By doing so, the Tribunal satisfied the requirement of s.425A(2)(a). Section 441C(4) deems the notice to have been received by the applicant on 22 May 2006. Regulation 4.35D of the Regulations provides:
For subsection 425A (3) of the Act, the prescribed period:
(a) if the applicant is a detainee – starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 7 days after the day on which the notice is received; or
(b) in any other case -- starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received.
As the hearing was listed for 16 June 2006, the notice had to be received by 1 June 2006. As it is deemed to have been received on 22 May 2006, the notice satisfies the requirement of s.425A(3).
In argument, the applicant’s counsel submitted that the Tribunal should have contacted the applicant on the mobile telephone number he had supplied in his application to the Tribunal. However, ss.425A(2)(a) and 441A codify the methods of communication which the Tribunal may use to invite an applicant to a hearing pursuant to s.425. Section 441A provides only for written communication. Consequently, the fact that the Tribunal may not have telephoned the applicant to ensure that he was aware of the approaching hearing does not amount to jurisdictional error on its part.
Because the applicant did not attend the hearing and the Tribunal had, as I find, met the requirements of ss.425 and 425A, the Tribunal was entitled to determine the review application under s.426A without hearing from the applicant. The fact that it did so does not amount to jurisdictional error.

Breach s.424A

At the relevant time, s.424A provided:
(1)Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2)…
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application; or
(c)that is non-disclosable information.
The applicant submits that the Tribunal breached this section because it did not warn him that he was going to be heard on the issue of his need for protection as a member of the “Osu caste”. This was characterised by the applicant as a “new issue” which also should have been identified pursuant to s.425 and notified pursuant to s.425A. However, there is no requirement under s.425 that relevant issues need to be notified prior to the Tribunal hearing; this is apparent from the decision of the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 81 ALJR 515. Moreover, this submission fails to address the real basis for the Tribunal’s decision which was that, because the applicant failed to attend the Tribunal hearing, a number of issues remained unexplained and unresolved. This had the consequence that the Tribunal was not satisfied, based on the material before it, that the applicant met the criteria for a protection visa (ss.36, 65). The affirming of the delegate’s decision did not occur because of any unfavourable opinion the Tribunal had of information which it had before it and thus this was not a case where information had to be notified pursuant to s.424A. In this case, the decisive factor for the applicant’s review was simply the lack of persuasive evidence before the Tribunal. As Allsop J said in SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [29]:
On one view, it might be said that since the only information that was before the Tribunal about the appellant’s circumstances was information not withdrawn from the operation of s.424A(1) by s.424A(3)(b), it must be that that information was the reason or part of the reason for the decision. That is too simplistic an analysis. In SZECF I discussed the purpose of s.424A. Its operation is to be understood conformably with that purpose. Whilst in some cases an "unbundling" is necessary in order, sensibly, to apply s.424A to the expressed reasons of the Tribunal, here, the reason for the decision is plain. The Tribunal, having read all the material and having evaluated its content and weight, was unable to reach a specified mental state. It was not satisfied that the appellant had a well-founded fear because of subjectively perceived inadequacies in the information. The reason for the decision was simply (and no more than) the evaluative conclusion founded on the perceived inadequacy of the information, in the sense of an absence of detail and extrinsic explanation which had been invited. It would be an inadequate and misleading statement to say that the information was the reason or part of the reason for the decision. It was the lack of the requested further assistance and explanation that was the reason.
For these reasons, no breach of s.424A has been proved and no jurisdictional error has been demonstrated by the fact that the Tribunal affirmed the delegate’s decision because it was unable to reach the level of satisfaction required by the Act.

Failure to comply with notification provisions

The applicant submitted that the Tribunal failed to give its determination to him in accordance with s.430B(6) of the Act which provides:
If the applicant is not present at the handing down of the decision, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under subsection 430(1). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is handed down; and
(b)by one of the methods specified in section 441A.
It appears from the Court Book that the Tribunal’s letter of 6 July 2006 (CB 58) did not reach him, even though it was addressed to the address which the applicant had notified to the Tribunal. The Court Book reveals that the applicant subsequently approached the Tribunal for a copy of the decision which was sent to him under cover of a Tribunal letter dated 30 January 2007 (CB 67, 68).
The consequences of the applicant not being given a copy of the Tribunal’s decision within the s.430B(6) time limit is that time does not commence to run for the commencement of judicial review proceedings. It does not amount to jurisdictional error: SZFLM v Minister for Immigration & Citizenship [2007] FCA 863; SZKTR v Minister for Immigration & Citizenship [2007] FCA 1767.
The applicant has also submitted that the Tribunal failed to comply with the notification requirements in s.477(1) of the Act. However, that section is concerned with providing time limits within which applications for review of Tribunal decisions may be made to this Court. It is a limitation provision only and does not impose obligations on the Tribunal in the sense pressed by the applicant.
In the circumstances of this case, I accept that the applicant was never personally served by the Tribunal with a copy of its decision relating to him. This has the effect that the proceedings were not brought out of time, even though a period of approximately four months passed between the applicant’s receipt of the decision and the commencement of the proceedings: Minister for Immigration & Citizenship v SZKKC [2007] FCAFC 105.

Unwarrantable delay

No explanation has been given by the applicant for the delay of approximately four months in the bringing of the proceedings. It appears from his “Affidavit in Support of Extension of Time” that the applicant did not receive the Tribunal’s letter of 6 June 2006 (CB 58) which contained advice concerning the process of judicial review. Such advice was not included in the Tribunal’s letter of 30 January 2007

(CB 67) which subsequently sent a copy of the decision to the applicant. That being so and given that the applicant was not represented by an agent at that time, notwithstanding that an explanation has not been provided by the applicant for the delay in commencing these proceedings I would hesitate to conclude that the delay was of an unwarrantable length. However, as I have found that the Tribunal’s decision is not affected by jurisdictional error I do not need to express a concluded view on the issue.

Conclusion

Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 1 February 2008