SZNNL v Minister for Immigration
[2009] FMCA 714
•29 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNNL v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 714 |
| MIGRATION – Protection visa application – whether Tribunal required to send section 424A letter – whether applicant invited to appear before Tribunal – whether invitation despatched by method prescribed – whether jurisdictional error. |
| Migration Act 1958 (Cth), ss.65(1), 424A, 424B, 424C, 425, 425A, 426A, 441A, 441C Migration Regulations 1994 (Cth), reg. 4.35D |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592; [2006] FCA 1045 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 482; [2004] FCAFC 283 SJSB v Minister for Immigration [2004] FCAFC 225 SZDED v Minister for Immigration and Citizenship [2006] FMCA 96 SZDJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 214 SZFGD v Minister for Immigration & Anor [2006] FMCA 99 SZGZQ v Minister for Immigration [2007] FCA 62 SZHSQ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 159; [2006] FCA 1295 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276; [2002] FCAFC 266 |
| Applicant: | SZNNL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 993 of 2009 |
| Judgment of: | Lucev FM |
| Hearing date: | 3 July 2009 |
| Date of Last Submission: | 3 July 2009 |
| Delivered at: | Perth |
| Delivered on: | 29 July 2009 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr S Thackrah |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
SYG 993 of 2009
| SZNNL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application dated 16 April 2009, filed 27 April 2009, seeking judicial review of a decision of the Refugee Review Tribunal[1] dated 13 March 2009.[2]
[1] “Tribunal”.
[2] “Tribunal Decision”.
The grounds of the Application are as follows:
a)the Tribunal did not comply with the notification requirements in s.424A of the Migration Act and thereby breached s.424C of the Migration Act; and
b)the Tribunal did not comply with the written invitation requirements under s.424B of the Migration Act.
Orders sought
The applicant seeks the following declarations and orders:
a)a declaration that the decision of the Tribunal is void and of no effect;
b)an order prohibiting the Minister from acting upon or giving effect to or proceeding further upon the Tribunal decision;
c)an order that the Tribunal review the decision according to law;
d)an order that the Tribunal pay the costs of the applicant;
e)an order quashing the Tribunal decision; and
f)an order in the nature of certiorari.
Applicant’s Affidavit
The applicant’s Affidavit in support of the application sworn 16 April 2009 provides as follows:
“That the letter advising me of the Tribunal hearing date was never received by me even so I have advised the DIAC in early January of my addresse and due to my limited knowledge of law regarding changes of addresse I did ask the officer when I advised them of my new addresse whwther any thing else I should do but they gave form which I filled.
The notification of the RRT decision was only received by me whwn I went to query the when is the date of RRT hearing and that was on the 31st of March 2009.
The RRT hadmy telephone contact as my second mean of contacting if their original letter of Tribunal hearing date notification was returned to sender.”[3]
[3] Transcribed from the applicant’s Affidavit sworn/affirmed on 16 April 2009 without amendment.
Factual and procedural background
The applicant is a citizen of Lebanon. He arrived in Australia on 2 July 2008 and applied for a Protection (Class XA) visa on 29 September 2008.[4] The applicant claimed to fear harm from fundamentalist Islamic groups in northern Lebanon.[5]
[4] CB1-35 (“protection visa”).
[5] CB34-35.
On 5 November 2008, the Department of Immigration and Citizenship[6] wrote to the applicant, inviting him to attend an interview to discuss his claims.[7] The applicant attended the interview on 28 November 2008.[8]
[6] “Department”.
[7] CB49-50.
[8] “delegate’s interview”.
A delegate of the Minister for Immigration and Citizenship[9] refused the application on 8 December 2008.[10] On 13 January 2009 the applicant sought review of the delegate’s decision in the Tribunal.[11]
[9] “delegate”.
[10] CB54-68. (“delegate’s decision”).
[11] CB69-72.
At some point in “early January” 2009 the applicant advised the Department (but not the Tribunal) of a change of address by filling out a form. The applicant says he asked the officer who attended to him whether anything else was required, but was simply given a “form” which he “filled”.[12]
[12] Applicant’s Affidavit, para.1.
By letter dated 12 February 2009 the Tribunal invited the applicant to attend a hearing on 13 March 2009[13] pursuant to s.425 of the Migration Act 1958 (Cth).[14] The s.425 invitation was sent to the applicant at the last address provided by the applicant to the Tribunal, being 55/2 Riverpark Drive Liverpool NSW 2170. This address was provided to the Tribunal in the application for review filed with the Tribunal on 10 January 2009.[15]
[13] CB73-74 (“section 425 invitation”).
[14] “Migration Act”.
[15] The address listed on the Tribunal application at CB70.
The applicant did not appear before the Tribunal on the day of the scheduled hearing.[16] The Tribunal, pursuant to s.426A of the Migration Act, decided to make its decision without taking any further action to enable the applicant to appear before it.
[16] “Tribunal hearing”.
In the Tribunal Decision dated 13 March 2009 the Tribunal affirmed the delegate’s decision to refuse to grant a protection visa to the applicant.[17]
[17] CB81-88.
On 17 March 2009, the s.425 invitation was returned to the Tribunal marked ‘Return to Sender’.[18]
[18] CB75-77.
Tribunal Decision
The Tribunal:
a)accepted that the applicant was a citizen of Lebanon;[19] and
b)noted that the applicant claimed that as an Alawi Muslim, he feared persecution from extremist Sunni Muslim groups, who are opposed to Alawis for religious and political reasons.[20]
[19] CB86.
[20] CB86.
The Tribunal found that the applicant's “statement and [delegate’s] interview answers lacked sufficient relevant detail to determine whether the applicant falls within the Convention definition”.[21]
[21] CB87.
The Tribunal found that:
a)in the absence of the applicant’s attendance at the scheduled hearing before the Tribunal, it was left “with claims which are untested by the Tribunal and stated in the most general of terms”;[22] and
b)the evidence before it was “not sufficient to find that the applicant would face a real chance of persecution for reasons of religion or political opinion or for any other Convention based reason should he return to Lebanon now or in the foreseeable future”.[23]
[22] CB87.
[23] CB87.
The Tribunal concluded that it was not “satisfied that the applicant has a well founded fear of persecution for any Convention based reason”.[24]
[24] CB87.
The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
Compliance with sections 424A , 424B and 424C
Section 424A of the Migration Act provides that the Tribunal must:
a)give to the applicant clear particulars of any information that the Tribunal considers would be the reason for affirming the decision under review;
b)ensure that the applicant understands why the information is relevant to the review; and
c)provide the applicant an opportunity to comment on or respond to the information.
The Tribunal did not send a letter to the applicant before the Tribunal hearing setting out the particulars of any ‘information’ that the Tribunal considered would be the reason for affirming the decision under review.
The Tribunal did not have before it any ‘information’ for the purposes of s.424A of the Migration Act that it was required to provide the applicant with particulars of or provide him with an opportunity to comment on. Information “that the applicant gave during the process that led to the decision that is under review”[25] is not information for the purposes of s.424A of the Migration Act.[26]
[25] CB1-48 and CB53.
[26] Migration Act, s.424A(3)(ba).
At the delegate’s interview the applicant did not provide any information orally that the Tribunal ultimately considered would be a reason for affirming the decision under review.[27] Therefore, the Tribunal was not obliged to provide the applicant with an opportunity to comment on this information which, the Minister acknowledges constitutes ‘information’ under s.424A of the Migration Act.[28]
[27] CB86.
[28] Migration Act, s.424A(3)(ba).
Because ‘information’ for the purposes of s.424A of the Migration Act does not “extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps”,[29] the Tribunal was not required to send a ‘section 424A letter’ to the applicant advising that there was insufficient evidence to find in his favour. It was sufficient to advise the applicant of the insufficiency of the evidence in the letter under s.425 of the Migration Act inviting the applicant to appear before the Tribunal.[30]
[29] WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at 282-284; [2002] FCAFC 266 at paras.24-29; VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477 per Finn and Stone JJ; [2004] FCAFC 123 at paras.24-27 per Finn and Stone JJ.
[30] CB73-74.
Because no s.424A letter was sent to the applicant, ss.424B and 424C have no application in the present circumstances.
Compliance with sections 425, 425A and 426A
The applicant has not raised in his grounds of application any breach of ss.425, 425A or 426A of the Migration Act. An issue as to whether the s.425 invitation was sent by a method prescribed by the Migration Act is however raised by the evidence.
Section 425 of the Migration Act requires the Tribunal to invite the applicant to appear before it to present arguments and give evidence. Section 441A(4)(c)(i) of the Migration Act allows the Tribunal to dispatch the s.425 invitation by prepaid post to the “last address for service provided to the Tribunal by the recipient in connection with the review”. If a document is given to a person by a method specified in s.441A(4) of the Migration Act to an address in Australia, the person is taken to have received it 7 working days after the date of the document.[31]
[31] Migration Act, s.441C(4)(a).
The Tribunal invited the applicant to appear before it by registered letter dated 12 February 2009 addressed to the applicant at 55/2 Riverpark Drive Liverpool NSW 2170.[32] This address was provided to the Tribunal by the applicant in his application for review filed on 13 January 2009.[33]
[32] CB73.
[33] CB70-71.
Accordingly, the applicant is taken to have received the s.425 invitation on 23 February 2009. The deemed receipt on this date gave the applicant more than the prescribed period to arrange for his attendance at the Tribunal hearing on 13 March 2009.[34]
[34] Migration Act, s.425A; Migration Regulations 1994 (Cth), reg.4.35D (“Migration Regulations”).
It has been held that an applicant must clearly notify the Tribunal of a change of address for service.[35] Notwithstanding the applicant’s statement that he notified the Department of his change of address, he was required to notify the Tribunal directly of his change of address.
[35] SZNCO v Minister for Immigration and Citizenship [2009] FMCA 645 at para.16 per Raphael FM; SZBHU v Minister for Immigration and Citizenship [2007] FCA 1614 at paras.45-47 per Gilmour J.
The applicant says that he did not physically receive the s.425 invitation, but he is deemed to have received it in any event.
Section 426A(1) of the Migration Act provides that:
If the applicant:
(a)is invited under s.425 of the Migration Act to appear before the Tribunal; and
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
Section 426A(1) of the Migration Act allows the Tribunal to proceed to make a decision without appearance by the applicant, and without the Tribunal attempting to contact the applicant by telephone.[36]
[36] SZHSQ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 159 at 172 [62-67] per Rares J (“SZHSQ”); NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592 at [24] per Greenwood J (“NBBL”); SZDED v Minister for Immigration and Citizenship [2006] FMCA 96 (“SZDED”) is, in light of SZHSQ and NBBL, no longer good authority to the contrary.
Jurisdictional error
A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[37] An error by an administrative tribunal, such as the Refugee Review Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[38]
[37] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[38] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
It is for an applicant to advance whatever evidence or argument he wishes to advance in support of a contention of having a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.[39]
[39] Abebe v Commonwealth (1999) 197 CLR 510at 576 per Gummow and Hayne JJ; [1999] HCA 14 at para.187 per Gummow and Hayne JJ; SZDJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 214 at para.11 per Jacobson J.
Section 65(1) of the Migration Act requires the Tribunal to refuse the Appellant's application for a protection visa in circumstances where the Tribunal is not affirmatively satisfied that the facts required to be established to satisfy the criteria for the grant of the protection visa have been established.[40]
[40] SZGZQ v Minister for Immigration [2007] FCA 62 at paras.13-14 per Greenwood J; SJSB v Minister for Immigration [2004] FCAFC 225 at [15] per Ryan, Jacobson and Lander JJ; Minister for Immigration and Multicultural Affairs v VSAF of 2003 [2005] FCAFC 73 at para.17 per Black CJ, Sundberg and Bennett JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
The Tribunal determined the matter on the evidence before it. The Tribunal was not satisfied on the basis of the evidence before it that the applicant's claims had been made out. That finding was open to the Tribunal. The Tribunal’s Decision does not exhibit any jurisdictional error.
The applicant’s application was rejected because, amongst other reasons, he failed to appear before the Tribunal and address any concerns it may have had about his claims.[41] Where, as here, an applicant fails to attend a Tribunal hearing rejection of the application is “an inevitable consequence” of the non-attendance.[42]
[41] S58 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492 at 493 onwards per Merkel, Ryan and Conti JJ; [2004] FCAFC 283 per Merkel, Ryan and Conti JJ at para.25 onwards.
[42] NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at para.5; see also SZFGD v Minister for Immigration & Anor [2006] FMCA 99.
The Tribunal considered all the applicant’s claims. The Tribunal based its decision on the information available. The applicant did not appear in person before the Tribunal. The Tribunal was entitled to come to the conclusion that the applicant’s claims “lacked sufficient relevant detail”.[43] The Tribunal’s failure to be satisfied that the facts required to be established to satisfy the criteria for the grant of the protection visa was based on a lack of detailed information. No jurisdictional error can be, or was, established by the applicant.
[43] CB87.
Conclusion
The Tribunal's Reasons for Decision do not contain any jurisdictional error. The application should be dismissed with costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S. Gough
Date: 29 July 2009
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