SZNJM v Minister for Immigration

Case •

[2009] FMCA 603

•

30 June 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNJM v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 603
MIGRATION – Visa – Protection Visa – application for review of decision of the Refugee Review Tribunal – where applicant did not attend the Tribunal hearing – whether Tribunal erred in failing to exercise its discretion under Migration Act 1958 (Cth) s.426A(2) – whether Tribunal was functus officio – procedural fairness – hearing – notice – obligation to invite appearance – notice sent by Tribunal not actually received by applicant until after decision made – no jurisdictional error.
Migration Act 1958 (Cth), ss.422B, 425, 425A, 426A, 441A, 476
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
SZIGQ v Minister for Immigration & Citizenship & Anor [2007] FCA 328 followed
Minister for Immigration and Multicultural and Indigenous Affairs And Another v SZFHC (2006) 150 FCR 439; [2006] FCAFC 73 FOLLOWED
Applicant: SZNJM
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 707 of 2009
Judgment of: Scarlett FM
Hearing date: 10 June 2009
Date of Last Submission: 10 June 2009
Delivered at: Sydney
Delivered on: 30 June 2009

REPRESENTATION

Counsel for the Applicant: Mr Jackson
Solicitors for the Applicant: Kazi & Associates
Counsel for the Respondents: Mr Reilly
Solicitors for the Respondents: DLA Phillips Fox (Mr Pinder)

ORDERS

  1. The Application is dismissed.

  2. The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,700.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 707 of 2009

SZNJM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. The Applicant, a citizen of India, asks the Court to review a decision of the Refugee Review Tribunal, affirming a decision not to grant him a protection visa. He seeks orders in the nature of certiorari, prohibition and mandamus.

  2. The Applicant relies on two grounds:

    a)First, he claims that the Tribunal failed to accord procedural fairness, failed to comply with s.422B of the Migration Act, or erred in its jurisdiction in its application of s.426A of the Act.

    b)Second, the Applicant claims that the Tribunal failed to comply with s.425 of the Migration Act and therefore failed to accord the Applicant procedural fairness by failing to invite the Applicant to a hearing.

Background

  1. The Applicant arrived in Australia on 10th August 2008. He applied for a Protection (Class XA) visa on 9th September 2008. A delegate of the Minister for Immigration and Citizenship refused his application for a protection visa on 8th December 2008.

Application to the Refugee Review Tribunal

  1. The Applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision on 2nd January 2009. In that application, he nominated his home address as his address for correspondence.[1]

    [1] Court Book 67

  2. On that same date, the Applicant delivered some other documents to the Tribunal. Those documents were:

    ·A statement about his refugee claim[2]

    ·The delegate’s notification of refusal of his application for a Protection (Class XA) visa[3]

    ·A form headed “Change of Contact Details”.[4]

    [2] Court Book 69-73

    [3] Court Book 74-77

    [4] Court Book 78

  3. In this document, the Applicant’s name and existing home address (albeit with a slight spelling error) were written in the section marked “New residential address”. In addition, the Applicant’s name and a Post Office box number were written in the space marked “New postal address”.

  4. The Tribunal wrote to the Applicant that same day, acknowledging receipt of his application. The letter was addressed to the Post Office Box.[5]

    [5] Court Book 79-80

  5. On 2nd February 2009 the Tribunal wrote to the Applicant, inviting him to attend a hearing on 3rd March 2009. That letter, too, was addressed to the Applicant’s Post Office Box.[6]

    [6] Court Book 81

  6. The Applicant did not attend the hearing on 3rd March 2009. The Tribunal decided the matter in his absence, using its power under s.426A of the Migration Act.

  7. The Applicant wrote to the Tribunal dated 6th March 2009. The letter was received by the Tribunal on 9th March 2009.

  8. In that letter, the Applicant said:

    This is for your kind information that, I was invited to attend a hearing on 3 March 2009 to give oral evidence and present arguments before the tribunal. I use a PO box address for my postal correspondences and I missed to pick the registered mail on time and hence unable to attend the hearing on the schedule date.

    Please consider my situation and allow me to attend the hearing by giving me a new hearing date. Please provide me with a second chance so that I can present in front of you and give my evidences in person.

    I assure this time I will check my post office box everyday.[7]

    [7] Court Book 101

  9. The letter was referred to the Tribunal Member, who made these comments:

    I have considered the applicant’s request whether to reschedule. The applicant did not telephone the Tribunal. He had adequate opportunity. I do not accept that it is appropriate to exercise my discretion as I am functus officio.[8]

    [8] Court Book 102

The Refugee Review Tribunal Decision

  1. The Tribunal signed its decision on 5th March 2009 and notified the Applicant under cover of a letter dated the following day. The Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.

  2. In its Decision Record, the Tribunal explained why it decided the matter in the Applicant’s absence:

    24.On 2 February 2009 the Tribunal wrote to the applicant advising that it had considered all the material relating to his application but it was unable to make a favourable decision on that information alone. The applicant was invited to give oral evidence and present arguments before the Tribunal on 3 March 2009. The applicant was advised that, if he did not attend the Tribunal scheduled hearing, the Tribunal may make a decision without further notice. The letter was sent to the applicant at his address for service, in accordance with the regulations.

    25.The applicant did not respond to that letter. The applicant did not attend the hearing. The applicant did not contact the Tribunal to explain his absence.[9]

    [9] Court Book 96

  3. The Tribunal found that the Applicant was a Sikh from the Punjab who claimed to fear persecution from his political rivals, claiming that they would kill him if he were to return to India. Without further information, the Tribunal was not satisfied that the Applicant was threatened with being killed or that he fled India fearing Convention related harm. The Tribunal found that it had no independent evidence to support the Applicant’s claim that he would not be able to access State protection in India. The Tribunal was satisfied that that the real chance of harm if the Applicant were to return to India was remote and did not accept that the Applicant had a well-founded fear of persecution for reasons of his real or imputed political opinion or religion or for any other Convention reason if he were to return to India.

  4. Consequently the Tribunal was not satisfied that the Applicant was a person to whom Australia has protection obligations under the Refugees Convention and affirmed the decision not to grant him a Protection (Class XA) visa.

Application for Judicial Review  

  1. The Applicant filed an application and affidavit in support on 25th March 2009. He filed an amended application on 19th May 2009 and a further amended application, with leave and without objection, in Court on 10th June 2009.

  2. In his further amended application, the Applicant sets out two grounds of review:

    ·Ground one:

    The Tribunal failed to accord the applicant procedural fairness, failed to comply with section 422B(3) of the Act, or erred as to its jurisdiction in its application of section 426A of the Act.

    ·Ground two:

    The Tribunal failed to comply with section 425, and this failed to comply with a mandatory provision of the Act, and failed to accord the Applicant procedural fairness, in failing to invite the Applicant to a hearing.

  3. The particulars of Ground one are that the Tribunal was not functus officio and it therefore had power to exercise its discretion to reschedule the hearing pursuant to s.426A of the Act.

  4. The particulars of Ground two are that the Tribunal did not serve the invitation to attend a hearing in compliance with section 441A, because it sent the invitation letter by prepaid post neither to:

    i)The last address for service provided to the Tribunal by the recipient in connection with the review, there having been no specific request that documents be served at the post office box provided (RD78); or

    ii)The last residential or business address provided to the Tribunal, being the Arcadia address.[10]  

    [10] i.e. the Applicant’s then home address

  5. The Applicant was required for cross-examination. He was shown the application for review, his letter to the Tribunal, the copy of the delegate’s notification of the refusal of his application for a visa and the Change of Contact Details form[11] and confirmed that he went to the office of the Tribunal on 2nd January 2009 and handed all those documents in to the Tribunal.

    [11] Court Book 65-78

Applicant’s Submissions

  1. As to the Applicant’s first ground, Mr Jackson of counsel, who appeared for the Applicant, conceded that the letter sent by the Applicant to the Tribunal on 6th March 2009 crossed with the Tribunal’s letter of the same date, sending him a copy of the Tribunal’s decision made the day before. Mr Jackson conceded that there was no way the Tribunal would have known that the Applicant had not received the invitation to the hearing at the time the decision was made. Thus, if the Tribunal were to exercise its discretion under s.426A(2) it would do so without the knowledge that the Applicant had not received the invitation to the hearing.

  2. Mr Jackson submitted that this case was different from the situation in Minister for Immigration and Multicultural Affairs v Bhardwaj[12], where the Tribunal had in fact received the Applicant’s fax although the Tribunal Member had not been made aware of it.

    [12] (2002) 209 CLR 597

  3. However, he submitted that, at the time the Tribunal made its decision, it did not clearly identify that it had a discretion under s.426A. He referred to the Tribunal decision where it said at [27]-[28]:

    27.The applicant was served with notice of hearing by the Tribunal in accordance with the Migration Act. I am satisfied the Tribunal has discharged its obligation to provide the applicant with the opportunity to give oral evidence and present arguments before it and that he has effectively declined the opportunity.

    28.The applicant was put on notice that the Tribunal was unable to make a favourable decision on the information before it. He did not provide any further information to support his claims nor did he give the Tribunal the opportunity to explore relevant aspects of his claims with him.[13]

    [13] Court Book 96-97

  4. Mr Jackson submitted that this was not a proper exercise of the Tribunal’s discretion under s.426A.

  5. As to the Applicant’s second ground, Mr Jackson submitted that the Tribunal was in error in using the postal address on the Change of Contact Details form submitted by the Applicant rather than continuing to use the address for correspondence provided on the Application for Review. The change of contact details form did not specify that all future correspondence should be sent to that address.

First Respondent’s Submissions 

  1. Counsel for the First Respondent, Mr Reilly, submitted that the Tribunal was functus officio when it became aware of the Applicant’s letter. It had made its decision on 5th March 2009 and therefore had no discretion under s.426A to exercise.

  2. As to the Applicant’s second ground, Mr Reilly submitted that, whilst it was unclear why the Applicant provided all of the documents that he did on the same day, there was no point in lodging a form entitled “Change of Contact Details” unless it was intended that the new address should be used. The form is a notification of a new address for service.

Applicant’s Submission in Reply 

  1. It was submitted for the Applicant that, in respect of Ground two, any unfairness lies in the ambiguity in the form. The Applicant’s last address for service was the last address provided unambiguously by the Applicant on 2nd January 2009.

Conclusions

  1. The Applicant’s first Ground has not been made out because the Tribunal was functus officio when it received the Applicant’s letter on Monday 9th March 2009. Accordingly it could not exercise its discretion under s.426A(2).

  2. The Tribunal hearing was scheduled for 3rd March 2009. The Tribunal wrote to the Applicant on 2nd February 2009, inviting him to attend the hearing.

  3. The Applicant did not attend the hearing on 3rd March 2009. He did not pick up his letter of invitation from the Post Office until 6th March 2009. In the meantime, the Tribunal made its decision on 5th March 2009, not having heard from the Applicant. It posted a copy of the decision to the Applicant under cover of a letter dated 6th March 2009.

  4. After seeing that he had missed the hearing, the Applicant wrote to the Tribunal on 6th March 2009. That letter did not arrive until 9th March 2009. It was already too late, because the Tribunal had made its decision and was functus officio.

  5. The Tribunal did not breach s.422B(3), which says:

    In applying this Division, the Tribunal must act in a way that is fair and just.

  6. I am inclined to agree with the Minister’s submission that s.422B(3) is an exhortative provision in the same way as s.420(1) was held to be in Minister for Immigration and Multicultural Affairs v Eshetu[14]at [49], [108]-[109], [158] and [179]. In any event, there does no appear to be any unfairness or injustice in the Tribunal’s decision to proceed to decide the matter under s.426A. The Tribunal had no way of knowing that the Applicant had not received the hearing invitation.

    [14] (1999)197 CLR 611

  7. The facts in this matter are similar to those in SZIGQ & Anor v Minister for Immigration & Citizenship & Anor[15]. In that case, the appellants had given evidence that they had not opened the post box where the invitation was sent until after the hearing date. Downes J held at [5]:

    However, the authorities are clear that the reason for non-attendance at a hearing does not matter. If the Tribunal has complied with ss.425 and 425A of the Migration Act in inviting an applicant to attend a hearing, it may proceed under s.426A of the Act to consider and decide the matter without conducting any further inquiries.

    [15] [2007] FCA 328

  8. In Minister for Immigration and Multicultural and Indigenous Affairs And Another v SZFHC[16], the Full Court of the Federal Court held at [39] that:

    In view of the decision in VNAA[17], it is clear that ss.425 and 425A of the Migration Act are to be read together. Accordingly, the Tribunal, having complied with one of the methods prescribed in s.425A (in fact, two), was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant.

    [16] (2006) 150 FCR 439; [2006] FCAFC 73

    [17] VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134

  9. The Tribunal complied with s.425 by inviting the Applicant to attend a hearing. The validity of the invitation to attend the hearing is not affected by the fact that the Applicant did not collect the letter from his post office box until after the hearing date.

  10. The notice of invitation to appear complied with the requirements of s.425A of the Act. It gave the Applicant notice of the day, time and place of the hearing. It was given by one of the methods specified in s.441A and gave the Applicant more than the prescribed period of notice. The notice also contained a statement of the effect of s.426A of the Act.

  11. Having complied with ss.425 and 425A, the Tribunal was at liberty to decide the matter under s.426A of the Act. As the Tribunal was unaware that the Applicant had not collected his mail from his post office box until after the hearing, it did not err in not exercising its discretion under s.426A(2).

  12. Consequently, when the Tribunal did receive the Applicant’s letter on 9th March 2009, it was too late to do anything about it. The Tribunal had made its decision on 5th March 2009 and it was functus officio.

  13. The Applicant’s Ground one has not been made out.

  14. The Applicant’s Ground two complains that the Tribunal did not serve the invitation to attend the hearing in compliance with s.441A of the Act. The Applicant claims that the Tribunal did not post the notice of hearing to the last address for service provided to the Tribunal by the Applicant, because there had been no specific request that documents be served at the post office box number provided. It is common ground that the Tribunal did not write to the Applicant’s residential address.

  15. This ground fails, because the Tribunal did send the notice by prepaid post to the last address for service provided to the Tribunal by the Applicant.

  16. The Applicant delivered a bundle of documents to the Tribunal by hand on 2nd January 2009. They included his application for review, in which he nominated his residential address as his address for service, and the change of contact details form, in which he gave the same residential address (slightly misspelled) and the post office box number. The Tribunal then sent all correspondence to the Applicant’s post office box.

  17. It is a logical inference that the Applicant’s change of contact details form must be seen as a modification of the contact details provided in the application for review, delivered to the Tribunal on the same day. The change of contact details form must logically be seen as the later document, because;

    a)It was said to be a change to contact details already provided, and the only contact details provided were those in the application for review; and

    b)It provided a new postal address that did not appear in the other document.   

  18. Moreover, it is clear from the Applicant’s letter to the Tribunal dated 6th March 2009 that it was his intention to use the post office box number as his address for correspondence with the Tribunal. The letter said (inter alia):

    I use a PO Box address for my postal correspondence and I missed to pick up the registered mail on time and hence unable to attend the hearing on the scheduled date…

    I assure you this time I will check my post office box everyday.[18]

    [18] Court Book 101

  19. Clearly, the Applicant intended to use his post office box for correspondence and there is no ambiguity. This was the last address provided by the Applicant to the Tribunal, and the Tribunal followed the Applicant’s instructions and sent all his correspondence to the address he nominated.

  20. The fact that the Applicant failed to clear the post office box in time does not affect the validity of the Tribunal’s actions. There is no jurisdictional error and the Applicants’ second ground of review fails.

  21. As there is no jurisdictional error, the Tribunal decision is a privative clause decision and the Applicant is not entitled to relief by way of certiorari or mandamus.

  22. The application will be dismissed with costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  V. Lee

Date:  26 June 2009


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