SZMPU v Minister for Immigration
[2008] FMCA 1659
•2 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMPU v MINISTER FOR IMMIGRATION & ORS | [2008] FMCA 1659 |
| MIGRATION – RRT decision – decision after applicant failed to attend hearing – no denial of procedural fairness – no other jurisdictional error – long delay in commencing proceedings – application dismissed. |
| Migration Act 1958 (Cth), ss.417, 424A, 425, 426A, 476(2)(d), 477(1) |
| Htun v Minister for Immigration& Multicultural Affairs (2001) 194 ALR 244 Minister for Immigration & Citizenship v SZIQB [2008] FCAFC 20 Minister for Immigration & Citizenship v SZKKC (2007) 159 FCR 565 Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 SZKNX v Minister for Immigration & Citizenship [2008] FCAFC 176 SZLPN v Minister for Immigration & Anor [2008] FMCA 1434 Vu v Minister for Immigration & Citizenship [2008] FCAFC 59 |
| Applicant: | SZMPU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondents: | REFUGEE REVIEW TRIBUNAL & MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2062 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 2 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 2 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr J Knackstredt |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2062 of 2008
| SZMPU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL & MIGRATION REVIEW TRIBUNAL |
Second Respondents
REASONS FOR JUDGMENT
(revised from transcript)
The applicant came to Australia in 1994. According to some Department of Immigration records, he was an unlawful non citizen from 1994 until 1997, when he applied for a protection visa. The application was lodged with the assistance of a migration agent on 21 February 1997.
The application attached a brief statement, in which the applicant said that he feared to return to Pakistan. He said that he had been an active member of a legitimate political party supporting fundamentalist Islamic policies, and that in 1989 he had witnessed the assassination of a well known and respected member of his party, who was nominated for a Punjab assembly election. He said that his party advised him to go underground and later to leave the country, because his life was in danger. He presented some country information suggesting that there was at that time considerable violence affecting the political life of Pakistan, and that the police were hopelessly demoralised.
A delegate refused the visa application on 22 July 1997. He referred to country information suggesting that since elections in February 1997 “there has not been a deterioration of general political security in Pakistan for members of any specific political party which would make their return unsafe”. The delegate also said that the applicant’s visa application suggested that he had been living in Lahore at various addresses, and had remained in employment as an accountant until he came to Australia. The delegate suggested that this background “casts strong doubt on this claim”. The delegate also suggested that the applicant could relocate to another part of Punjab province or to another province in Pakistan, if he wanted to avoid political enemies.
The applicant was assisted by his agent to appeal to the Refugee Review Tribunal, but his application did not present any more supporting material or submissions. He was informed by the Tribunal that the Tribunal could not make a favourable decision on the papers, and it invited him to a hearing on 22 April 1998. On the day of the hearing the applicant telephoned the Tribunal to say he was unwell and could not attend the hearing, and he faxed a medical certificate of a consultation on the same day “relating to ‘nervous disorder’”. The doctor certified that the applicant was unfit for work on that day, and “will be unfit to resume work until next day”.
The Tribunal received the certificate on the next day by post, with a handwritten letter from the applicant. This incoherently explained his concerns about his health. It then said:
In Pakistan I have many Sheea [sic] Muslims, relatives and friends. Some of them has been killed. If I will go to Pakistan I am fear of my life [from] other party me be killed to [indecipherable].
So I request you if you give me some time I will provide a statement and supporting paper to you, and meanwhile I will get health. In this period I cannot think properly. My thinking power has been seriously effected.
The Tribunal responded by letter sent to the applicant at his postal and residence addresses, with a copy to his migration agent. It appointed a new hearing six days after the date of the letter, on 30 April 1998. One of these letters was returned to the Tribunal, but there was no evidence that the others were not received by their recipients.
Later, in a submission to the Minister dated 18 September 1998, the applicant claimed:
On 24 April, 1998 the Tribunal wrote me a letter and gave me a new date of 30th April, 1998 for a hearing. At this time I was in the country and when I returned after a week I saw the letter I rang the Tribunal and I was advised that they will look into it.
On 8th of May, 1998 I received Tribunal’s decision and my Application for Protection Visa was refused. I feel that I was not given the opportunity to present my case fully.
However, the applicant has given no evidence to the Court upon which I would find that he or his agent contacted the Tribunal before it made its decision.
The Tribunal’s records contain no evidence that there ever was any contact to explain his absence from the hearing. It handed down its decision on 5 May 1998, and it affirmed the delegate’s decision. According to the Tribunal’s statement of reasons:
There was no reply to the second offer of a hearing. In these circumstances I am satisfied that the Tribunal has discharged its obligation to provide the applicant with the opportunity to give oral evidence before it and that he has effectively declined that opportunity. This matter has therefore been determined on the evidence before the Tribunal.
The Tribunal examined the information provided by the applicant in his protection visa application and independent country information concerning his political party. The Tribunal explained why it thought there were “serious problems with the applicant’s credibility”, arising from the matters referred to by the delegate. It also referred to the absence of detailed information about the events upon which the applicant claimed to fear for his life. It concluded:
This absence of relevant detail and my finding that the applicant does not have the profile of somebody who has been in hiding, leaves me unsatisfied, on the evidence before me, that the applicant has a well‑founded fear of persecution within the meaning of the Convention, now or in the reasonably foreseeable future, if he returns to Pakistan.
The Tribunal gave a further conclusion, suggesting that if the applicant was the subject of interest to rival political parties then those difficulties only arose in Lahore. The Tribunal referred to the applicant’s qualifications and age, and found “that relocation elsewhere in Pakistan would be a not unreasonable option”.
For these two reasons, it was not satisfied that the applicant was a person to whom Australia owed protection obligations.
Subsequent to the Tribunal’s decision, the applicant’s migration agent made a request to the Minister for personal intervention under s.417 of the Migration Act 1958 (Cth). It was in support of that application that the applicant made the submission which I have quoted above. It appears from the submission that the applicant probably had actually received a copy of the decision by the time that he signed it. However, as I shall explain, I do not propose to make a firm finding about this.
The applicant’s subsequent history in Australia has not been explained by him in any evidence to the Court. The Department’s file shows that notification was sent to the agent on 17 November 1998, that the Minister would not intervene. There was then a long interval when it appears the applicant was out of contact with the Department, until 20 December 2006 when a further application under s.417 was made. Correspondence about this continued during 2007, until eventually the current Minister made a decision on 29 May 2008, declining to consider exercise of power under s.417. The evidence before me is not clear as to what information was before the Minister at that time.
The applicant then lodged an application to the Migration Review Tribunal for review of the Minister’s action. However, in a decision dated 27 August 2008, the Tribunal decided that it did not have jurisdiction to review a decision made by the Minister not to exercise his powers under s.417. The statutory provisions referred to by the Tribunal are quite clear, in my opinion, in that respect.
The present application was then filed in this Court on 11 August 2008. The body of the application suggests that it seeks review of the decision of the Migration Review Tribunal in 2008. However, the application contains grounds of review which largely address the 1998 decision of the Refugee Review Tribunal. The applicant’s submissions to me were generally unclear, but it is clear that he is seeking an opportunity to have his refugee claims addressed afresh. In these circumstances, I propose to treat the application as one which challenges both decisions of the two Tribunals.
As I have indicated above, in my opinion the recent decision of the Migration Review Tribunal was plainly correct, and no submissions have been made to me raising any argument to the contrary. This Court also has no jurisdiction to review a Minister’s decision under s.417 (see s.476(2)(d) of the Migration Act).
In relation to the 1998 decision of the Refugee Review Tribunal, lengthy grounds of application with particulars are attached to the application. Unfortunately many of these appear to have been taken from precedents without sufficient thought as to their relevance to what happened in the applicant’s case. I do not propose to go through them in detail, but to address their separate contentions so far as I can distil them.
The applicant’s principal contentions challenge the procedural fairness of the Tribunal’s decision to proceed without taking any further actions, when the applicant did not attend the rescheduled hearing nor communicate to it an explanation for his absence. The Tribunal’s powers to proceed in that respect were not at the relevant time governed by s.426A, but the Tribunal was under a general obligation of procedural fairness. As Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 illustrates, a Tribunal decision at that time was susceptible to being set aside or treated as a nullity if an adjournment was not given in circumstances amounting to a breach of procedural fairness or of the Tribunal’s obligation to afford applicants an opportunity to attend a hearing pursuant to then s.425 of the Migration Act.
However, in my opinion, the evidence in the present case does not establish any breach of procedural fairness. On the information given by the applicant to the Tribunal, he was unfit to attend only on the day of the initially appointed hearing, and there was nothing before the Tribunal to suggest that its appointment of the rescheduled hearing was unreasonable. In circumstances where the applicant had a migration agent and lived in Sydney, I do not consider that the notice of rescheduling was unreasonable on the evidence before the Tribunal. Nor does the evidence now before the Court establish circumstances at the time, unknown to the Tribunal, which rendered the decision of the Tribunal to proceed without appointing another hearing invalid (cf. SZLPN v Minister for Immigration & Anor [2008] FMCA 1434 at [9]).
Although some of the documents of the applicant revealed a degree of mental confusion, there was no evidence before the Tribunal, nor is there evidence before the Court, that the applicant suffered a significant mental disability during the relevant period of 1998. The applicant’s submissions to me today referred to his feeling “very stressful” and “being really depressed” at the time, and his depressed affect today caused me some concerns. However, he has not presented any medical evidence which could allow the Court to form any conclusions about his medical condition in 1998, or indeed today.
I am therefore not satisfied that the various criticisms made in the application concerning the Tribunal’s decision to proceed to make a decision after the applicant failed to attend the appointed hearing give rise to any jurisdictional error vitiating its decision.
A number of contentions in the application erroneously suggest that the applicant did attend a hearing, at which he was not afforded the opportunity to give relevant evidence, but was met with conduct by the Tribunal giving rise to a reasonable apprehension of bias. These grounds have no basis in the circumstances which actually occurred. The Tribunal was authorised under its legislation to proceed to make a decision after having afforded the applicant an opportunity to attend a hearing.
The grounds of the application also allege an unparticularised breach of s.424A of the Migration Act. However, this provision had not commenced at the time that the Tribunal made its decision.
It is contended in Ground 5 that the Tribunal failed to make findings about “effective state protection”. However, the Tribunal’s principal conclusion was that it had not been satisfied that the applicant had a well‑founded fear of persecution if he returned to Pakistan. In that circumstance, it was not obliged to consider questions of effective protection.
Various contentions are made that the Tribunal’s decision displays unreasonableness, giving rise to jurisdictional error. However, in my opinion there is no substance to that contention. It was clearly open to the Tribunal not to be satisfied as to the applicant’s refugee status on the sparse material which was before it.
Ground 7 of the application appears to allege that the Tribunal failed to consider whether the applicant was making a claim as a member of a particular social group which was subject to persecution. However, there appears to be no substance to this contention, since no such claim was made by the applicant independently of his claims to fear persecution by reason of his political opinions and affiliations which were addressed by the Tribunal.
I raised with Counsel for the Minister whether the letter sent to the Tribunal by the applicant in support of his adjournment application raised a new claim which the Tribunal should have addressed. The letter’s reference to the applicant’s Shi’a relatives was very obscure. In my opinion, it was open to the Tribunal to understand the letter as referring only to the applicant’s fear “of my life [from] other party”, being his politically based refugee claims. I am not satisfied that there was any clear suggestion of an alternative claim raised by the applicant, requiring the Tribunal’s attention before it could complete its review. I therefore reject the unparticularised grounds in the application that there was a failure by the Tribunal “to deal with a particular claim” (see Htun v Minister for Immigration& Multicultural Affairs (2001) 194 ALR 244, and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1).
Finally, the grounds contain a contention that the Tribunal erred by not making a finding on relocation. However, plainly it did make such an alternative finding against the applicant. I can identify no error in how it addressed that issue.
In my opinion therefore, considering all the grounds and arguments raised by the applicant in his documents and taking into account what he said to me today, I am not persuaded that there was any jurisdictional error affecting the Refugee Review Tribunal’s decision made in 1998.
For the above reasons, the application should be dismissed in relation to both Tribunal decisions.
I note that the Minister in his response and amended response raised two other contentions supporting the dismissal of the application. The first contention was raised in the original response. This contended that the Court should decline relief even if jurisdictional error were found, on the ground that there was “waiver, acquiescence and unwarrantable delay in seeking judicial review”.
I attempted to draw the applicant’s attention to this contention at the first court date, when I set the matter down for hearing today. I suggested that he should consider filing evidence explaining his long delay in coming to Court. However, he has not filed any such evidence. In his oral submissions, he referred vaguely to not knowing how the law worked, not having sufficient friends, and feeling very stressful about his situation. These may well be true reasons explaining his state of mind over the years. However, it is difficult not to see his long delay as being insufficiently explained. Moreover the evidence before me suggests that he pursued alternative pathways to a court challenge over the 10 year period since the Tribunal’s decision. In my opinion, the current authorities would point in favour of the Minister’s submission that relief should be refused on discretionary grounds, even if jurisdictional error were made out (see Minister for Immigration & Citizenship v SZIQB [2008] FCAFC 20, and Vu v Minister for Immigration & Citizenship [2008] FCAFC 59). However, my opinions about the merits of the applicant’s judicial review application mean that I do not need to address issues of discretion.
The Minister today sought leave to file an amended response raising a new issue, being the Court’s jurisdiction under s.477(1) of the Migration Act. This provision imposed a maximum 84 day time limit, which, in relation to decisions preceding its enactment in 2005, expired in 2006 if the applicant received “actual (as opposed to deemed) notification of the decision” before December 2005. A recent decision of the Full Court has given renewed life to this provision, contrary to the previously prevailing view as to the effect of Minister for Immigration & Citizenship v SZKKC (2007) 159 FCR 565 (see SZKNX v Minister for Immigration & Citizenship [2008] FCAFC 176).
SZKNX appears to conclude that “actual notification” can occur by reason of a physical receipt by an applicant of the Tribunal’s decision and statement of reasons at any time and in any manner, and not just by personal delivery by the Tribunal within the period provided under the Migration Act for effecting personal notification to an applicant. On that construction, the applicant would appear to have made an admission in 1998 that he had received actual notification of the Tribunal’s decision. Prima facie therefore the present application in relation to the 1998 Refugee Review Tribunal decision is out of time.
However, I do not propose to dismiss the application on that ground today. The applicant was not given sufficient notice of this contention. He has not been able to take legal advice about it, and there may be factual and legal arguments which he could have presented. If this were the only point upon which I was contemplating dismissal of the application, I would have adjourned the application today.
However, since I consider that the application should be dismissed on other grounds, I propose to make that order.
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: 12 December 2008
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