SZLAS v Minister for Immigration
[2007] FMCA 1928
•6 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLAS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1928 |
| MIGRATION – Whether a notice under s.425A must be in a particular form – whether the applicant was notified “of the effect of” s.426(2) – whether references to cases is “information” within s.424A – meaning of the phrase “of the effect of”. |
| Migration Act 1958 (Cth), ss.424A, 4254, 426, 474 |
| SZCQR v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 724 SZICU v Minister for Immigration & Anor [2007] FMCA 1086 Uddin v Minister for Immigration [2005] FMCA 841 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 SZASX v Minister for Immigration [2004] FMCA 680 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 |
| Applicant: | SZLAS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2092 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 19 October 2007 |
| Date of last submission: | 19 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M. Jones |
| Counsel for the Respondents: | Mr S. Lloyd |
| Solicitors for the Respondents: | Ms H. Blackman of Blake Dawson Waldron |
ORDERS
The application and amended application are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2092 of 2007
| SZLAS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 31 May 2007, which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa.
Background
On 31 January 2007 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application he claimed to fear persecution on his return to China on account of his new-found Christianity, and the fact that during his time in Australia he has been tried and convicted for conspiracy to kidnap. The applicant claimed to fear retribution from both the authorities in China and his co-conspirator (Court Book “CB 29-31).
The application was refused by a delegate of the first respondent on 27 February 2007 (CB 58-59) and by the Tribunal on review on 31 May 2007 (CB 132-163).
The matter is now before this Court pursuant to an application for judicial review filed on 5 July 2007, and an amended application filed on 4 October 2007.
Issues for determination
The main issues before the Court are as follows:
·Whether a valid notice was given under s.425A;
·Whether a notice under s.425A must exactly replicate the language of s.426(2);
·Whether referral to other cases was “information” within s.424A.
The application
In his application, the applicant set out the following grounds:
(1)Protection visa (seeking asylum).
(2)My life is in danger if I go back to China.
In his amended application filed on 4 October 2007, the applicant set out the following grounds and particulars:
(1)The Tribunal failed to exercise its jurisdiction because it failed to comply with sections 425A and 426 of the Migration Act 1958 (“the Act”).
Particulars
The Tribunal was required by s.425A to give the applicant a notice in relation to a hearing of his case. Pursuant to para.426(1)(b) that notice was required to notify the applicant of the effect of subsection 426(2).
The Tribunal wrote to the applicant on 9 March 2007 inviting him to a hearing on 12 April 2007, and after cancelling that hearing it wrote to him again on 16 April 2007 inviting him to a hearing on 27 April 2007. Both notices directed the applicant’s attention to an attached document entitled “What is a hearing?” and to the section in that document headed “Can I bring someone with me to the hearing?”
The effect of subsection 426(2), as set out in subsection (3), is that if an applicant does not, within 7 days of being notify [sic], give the Tribunal notice, in writing, that he or she wants the Tribunal to obtain oral evidence from a person or persons named in the notice, then the Tribunal is not required to have any regard to the applicant’s wishes.
In neither case did the notice adequately notify of the effect of subsection 426(2) either with regard to the requirement that a notice to the Tribunal be in writing, or that it would have difference consequences if given to the Tribunal outside the 7 day time limit.
The notices were therefore not valid notices under section 425A.
(2)The Tribunal failed to comply with s.424A of the Act.
Particulars
The Tribunal took into account as part of the reason for affirming the decision information taken from two cases heard by the United Kingdom Immigration Tribunal. This was information that was specifically about another person, was not just about a class of persons of which the applicant or another person was a member, was not given to the Tribunal by the applicant and was not non-disclosable information.
The Tribunal failed to give the applicant in writing particulars of that information, advise him of its relevance or ask for him to comment on it.
The grounds in the application were not pursued at the hearing and are dismissed.
Findings of the Court in relation to the grounds in the amended application
Ground one alleges a failure to comply with ss.425A and 426 of the Migration Act 1958 (Cth) (“the Act”).
Section 425A provides:
425A Notice 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.
Section 426 provides:
426 Applicant may request Refugee Review Tribunal to call witnesses
(1)In the notice under section 425A, the Tribunal must notify the applicant:
(a)that he or she is invited to appear before the Tribunal to give evidence; and
(b)of the effect of subsection (2) of this section.
(2)The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3)If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.
It is submitted for the applicant that pursuant to s.426, an invitation to a hearing must give notice to the applicant of the effect of s.426(2).
The first s.425 invitation, dated 3 March 2007 (CB 75), included a leaflet “What is a hearing?” (Exhibit A1). The second s.425 invitation, dated 16 April 2007 (CB 105), included a statement as follows:
with the exception of the new date and time, all other details about the hearing, as set out in the hearing invitation letter dated 09 March 2007 still apply”.
The letter enclosed a copy of the leaflet “What is a hearing?”
The applicant complains that “nowhere in the leaflet is it stated that an applicant must make such a request [for the Tribunal to obtain oral evidence from another person or persons] in writing or do so within 7 days of receiving the invitation”. It is submitted that the fact that the first invitation
contains the sentence “Please use the ‘Response to Hearing Invitation’ form to make such a request” is not in the form of an imperative, and therefore does not convey the full effect of subsection 426(2), which is that the request must be in writing.
It is submitted that the notices (invitations) were therefore invalid.
Counsel for the first respondent referred the Court to the decision of Justice Moore in SZCQR v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 724 at [27] to support a submission that the fact that a notice under s.425A does not exactly replicate the language of s.426(2) does not matter, as the obligation on the Tribunal is to notify the applicant “of the effect of s.426(2)” and “[t]here would be a variety of ways in which the effect of the section could be described” (SZCQR at [27]). The relevant passage from Justice Moore’s decision is as follows:
The differences between the notice and s.426A…are said to demonstrate that the requirement in s.425A(4) was not met. In my opinion, these identified differences (and I would be reluctant to characterise them as differences in any event) do not establish that the notice fails to contain a statement of the effect of s.426A. There would be a variety of ways in which the effect of the section could be described…[Emphasis added]
The Court accepts this submission. That decision is relevant to the interpretation of the words “of the effect of” in s.426(1)(b). Section 426(1)(b) requires the Tribunal to notify the applicant “of the effect of subsection (2) of this section”. The applicant was notified “of the effect of s.426(2)”.
Counsel for the first respondent referred also to the decision of Federal Magistrate Nicholls in SZICU v Minister for Immigration & Anor [2007] FMCA 1086 at [17] where His Honour accepted that the Tribunal is not required to give the applicant
a verbatim representation of the words used in s.426(2)….The relevant elements are:
(1)That the applicant be advised of the option of asking the Tribunal to call a witness or witnesses.
(2)That the exercise of this option must be done in writing.
(3)That this must be done within seven days after being notified of the hearing.
The Court applies the decision in SZICU to this matter.
As to element (1), the “What is a hearing?” leaflet has a heading “Can I bring someone with me to the hearing?”. It is stated under that heading that the applicant is “entitled to ask the Tribunal Member to obtain oral evidence from another person or persons”, and that the Tribunal Member “will generally only agree to hear evidence from a witness if it is relevant to your application for a protection visa”. The applicant was therefore advised of the option of asking the Tribunal to call a witness or witnesses. Element (1) was statisfied.
As to element (2), the Tribunal notifed the applicant that a request must be made in writing by the requirement to “use the ‘Response to Hearing Invitation’ [form] to make such a request” (CB 76.1), and the introduction to “Please read, complete and return the enclosed ‘Reponse to Hearing Invitation’ form to confirm the hearing and to advise us of who will take part in the hearing” (CB 76.2). Counsel for the first respondent referred to the statement in the “What is a hearing?” leaflet under the heading “How do I know when my hearing will be held?”, that is:
It is important that you complete this form [Reponse to Hearing Invitation form]….If you want another person to give evidence about your case you should tell us on the form how that person can help your case.
It was also pointed out that the Reponse to Hearing Invitation form (CB 77 and 109) asks the applicant to indicate whether they want the Tribunal to take oral evidence from any witnesses. Element (2) was satisfied.
As to element (3), both invitations were sent to the applicant’s authorised recipient. Both invitations set a time limit of 7 days to respond (9-16 March 2007 (CB 76), and 16-23 April 2007 (CB 106)). The third element was satisfied.
The Court finds that it is not necessary to decide whether the second hearing was a re-scheduled hearing, or whether it was the result of an adjournment. Either way, the “What is a hearing?” leaflet was sent to the applicant in relation to each hearing (CB 75, 105).
It is submitted for the applicant that specifying a return date of 16 March 2007 (in the invitation at CB 76) is not a notice “that if they don’t do that thing by that date they would lose any right which they would normally expect to have” (Transcript 8, line 30). The Court rejects that submission; the Tribunal set out a specific cut-off date by which to return the form. It is submitted for the applicant that the second letter (CB 106) does not indicate any sense of urgency. That submission ignores the direction to return the form by 23 April and is rejected.
As to the allegation that the invitation was misleading, counsel for the first respondent referred to SZICU (ante) where Federal Magistrate Nicholls held that it was not inconsistent with s.426(2) for the Tribunal to specify a particular method by which an applicant is to make a request. His Honour referred to the decision in Uddin v Minister for Immigration [2005] FMCA 841, and at [22] distinguished Uddin as the notice there did not reflect the statutory intention, whereas in SZICU (ante) the notice did reflect the intention of s.426(2). The Court follows the decision in SZICU (ante). The invitations to the applicant here were not meaningless and invalid. The Court finds no breach of ss.425A or 426.
In any event, the applicant applied in writing within time and indicated that he did not want the Tribunal to take evidence from any witnesses. Therefore, if there was a breach by the Tribunal it did not prevent the applicant from responding as envisaged by s.426(2). If the notice had been in a different form, it would therefore not have made any difference to the Tribunal’s decision. There is nothing to show that the applicant was misled. Therefore the applicant has suffered no injustice: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at [80]. Therefore, even if there was a breach, and the Court does not accept that there was, the Court would refuse relief as a matter of discretion.
It is submitted for the applicant that s.424A was breached as the Tribunal failed to give the applicant particulars of the decisions in two cases before the UK Home Office. The Court accepts the submissions for the first respondent that the Tribunal referred to the “Operational Guideline Note: China” issued by the UK Home Office (CB 373-392) and extracted para.3.11.7 (CB 158.8-159.2), where two cases before the United Kingdom Immigration Tribunal were discussed. In those cases it was found that there was no real risk that the applicant would be subjected to double punishment on their return to China. The Tribunal set out details of the cases at CB 159.6. The “Operational Guideline Note: China” is country information.
It is submitted for the first respondent that
On the basis of the independent information before the Tribunal, namely, the ‘Operational Guideline Note:China’, the reports of the two cases and the ‘UK Country of Origin Information Report: China’ (30 April 2007) [CB 158.2], the Tribunal concluded that [at CB 160.2]:
…there is no evidence of the authorities ever prosecuting a person who had been prosecuted and sentenced overseas for a crime committed overseas. Accordingly, the Tribunal considers that the possibility of action being taken against the applicant under Articles 1-12 of the Chinese Criminal Law, which would result in the applicant being re-prosecuted for the crime of conspiring to kidnap is remote and insubstantial.
It is submitted for the first respondent that the Tribunal’s discussion of the two cases did not form the reason, or part of the reason, for reaching the above conclusion. The first respodnent submits that
The only finding made by the United Kingdom Immigration Tribunal that was ultimately relied upon by the Tribunal…was the finding that expert evidence that the double jeopardy provisions were applied in practice to returnees to China was not sufficiently persuasive. That is, the experts knew of no reports or trials of returned felons in China (CB 60.1). This information is general country information. It is not information about the applicant or another person…and therefore the exception in s.424A(3)(a) is applicable.
The Court agrees.
In any event, the Court applies the decision of Federal Magistrate Barnes in SZASX v Minister for Immigration [2004] FMCA 680 at [23] where, after considering a number of cases, Her Honour concluded that
Consistently with these decisions and having regard to the context in which s.424A appears, I am of the view that ‘information’ in s.424A does not extend to case law.
The Court finds no breach of s.424A.
Counsel for the first respondent referred to the decision in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 for the proposition that relief for any breach of s.424A should be refused where there was an alternate finding that any harm would not be for a Convention reason. Counsel referred to paragraphs [29] and [91] of that decision. In the present case the Tribunal concluded that any re-prosecution of the applicant would not be for a Convention reason (CB 160.5). The Tribunal’s consideration of the two cases related to a finding that there was no real chance that the applicant would face re-prosecution. The Court accepts this submission. The Court would refuse relief as a matter of discretion, if a s.424A breach occurred in relation to the two cases, which it did not.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: M Giang
Date: 6 December 2007
7
1