SZNPQ v Minister for Immigration
[2009] FMCA 767
•20 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNPQ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 767 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal’s “acknowledgement letter” engaged s.424 – consideration of SZNAV – reasoning in SZNJT followed – whether “acknowledgement letter” sent during “conduct” of review – section s.424 only engaged when Tribunal constituted – no evidence as to when Tribunal was constituted – whether “acknowledgement letter” was “invitation” – distinction between sub-ss.424(1) and (2) – sub-s.424(2) does not encompass all Tribunal’s invitations for information – language of acknowledgement letter explanatory not invitational – no disadvantage to applicant – whether “acknowledgement letter” invited the giving of “additional” information – not “additional” information – details in review application not “information” – no unfairness or injustice in failure to state time period in s.424B – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.36, 65, 91R, 411, 412, 414, 415, 418, 420, 421, 424, 424B, 425, 425A, 426A, 457, 458, 459, 460, 471, 472 Migration Legislation Amendment Act (No. 1) 2009 (Cth) |
Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259
SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105
SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78
SZNAV v Minister for Immigration &Anor [2009] FMCA 693
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1
AZAAA v Minister for Immigration and Citizenship [2009] FCA 554
SZLTR v Minister for Immigration and Citizenship [2008] FCA 1889
SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83; 168 FCR 256
SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119; (2008) 170 FCR 236
Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201; (2005) 146 FCR 498
MZXRE v Minister for Immigration and Citizenship [2009] FCAFC 82
SZMBS v Minister for Immigration and Citizenship [2009] FCAFC 65
SZNHU v Minister for Immigration & Anor (No. 3) [2009] FMCA 777
SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51
SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119
SZEXZ v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 449
M v Minister for Immigration & Multicultural Affairs [2006] FCA 1247
SZLWQ v Minister for Immigration [2008] FCA 1406
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26
Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
| Applicant: | SZNPQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1199 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 10 August 2009 |
| Date of Last Submission: | 10 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 20 August 2009 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Solicitors for the Applicant: | Nil |
| Appearing for the Respondents: | Ms B Rayment |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 18 May 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1199 of 2009
| SZNPQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 18 May 2009 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 14 April 2009, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The applicant is a national of the People’s Republic of China (“China”). She arrived in Australia on 13 October 2008. She applied for a protection visa on 16 October 2008. (See Court Book – “CB”, CB 1 to CB 27, with annexed statement.)
The Applicant’s Claims to Protection
The applicant claimed to be a “common Falun Gong practitioner” in China, a practice which had been “outlawed” in July 1999. She claimed to have attended a number of demonstrations in support of Falun Gong. She was arrested and detained a number of times. She claimed to have been sentenced to one year imprisonment and to have been tortured and starved. Her family had paid bribes to the police to assist her. On release, she borrowed money to bribe a government officer to issue her with a passport which she used to come to Australia.
The Delegate
The applicant was invited to an interview with the Minister’s delegate. She did not attend. The delegate was unable to be satisfied in the absence of an interview, on what was before him, that the applicant had a well-founded fear of persecution for a Convention reason (CB 38). The applicant was refused a protection visa on 11 December 2008.
The Tribunal
The applicant applied for review on 12 January 2009 (CB 40 to CB 43). The Tribunal acknowledged her application by letter dated 13 January 2009. (See CB 43A to CB 43B.) By letter dated 9 February 2009 she was invited to attend a hearing before the Tribunal scheduled for 17 March 2009. The applicant responded indicating that she wished to attend (CB 46 to CB 47).
The applicant sought a postponement of the hearing. This was granted. The hearing date was moved to 26 March 2009 (CB 50). (It appears that the applicant arrived at the hearing, claimed that she was ill, and sought a postponement.) The applicant agreed to this “postponement” date (CB 52). She attended the hearing (CB 55).
The only account before the Court of what occurred at the hearing is that contained in the Tribunal’s decision record. (See paragraph [24] of the Tribunal’s decision record at CB 71 to [46] at CB 74.)
This reveals that at the hearing the applicant provided further details regarding her claimed involvement in Falun Gong in China and her Falun Gong activities since coming to Australia.
The applicant said that she feared to return to China because the authorities “would make trouble” for her. Further, that the authorities understood that Falun Gong practitioners who went abroad and did not return would seek protection, and that they would treat her badly because of this. (Paragraph [28] at CB 71.)
The Tribunal noted certain country information with the applicant, dealing with the “crackdown” on Falun Gong in China, which made her claim to have continued to publicly practice Falun Gong in China since 1999 to 2001 “hard to understand”. (See [33] to [35] at CB 72.)
Further, the Tribunal noted an inconsistency in her evidence regarding her employment in China (see [39] at CB 73), and an inconsistency in her claim to have paid a bribe in order to have her “record cleared”, and yet the security authorities continued to come to her house. (See [42] to [43] at CB 73 to CB 74.)
The applicant claimed to have practiced Falun Gong in Australia and provided a number of photographs in support. (See [43] at CB 74.) The applicant also submitted a letter from a person, with whom she said that she practiced Falun Gong in Australia, in support of her claim to do so. (See CB 63 and [44] at CB 74.)
The Tribunal put to the applicant that the information before it “raised some doubts” about her claim to have been a Falun Gong practitioner in China, and to have suffered harm as a result. The Tribunal explained the relevance of this to the task before it. Further, it told the applicant that if it took the view that her claimed Falun Gong activities in Australia were done only for the purpose of strengthening her refugee claims, it would have to disregard such conduct for the purposes of its consideration. (See [45] at CB 74.)
The applicant was invited to comment. She sought, and was given, the opportunity to respond in writing. (See [46] at CB 74.)
The applicant subsequently made submissions in writing and provided further photographs. (See [47] to [48] at CB 62 to CB 63.)
The Tribunal noted that the applicant’s knowledge of Falun Gong when questioned at the hearing was “scanty” but placed no weight on what it described as “anomalies” in this part of her evidence. (See [55] at CB 63.)
It found other parts of her evidence to raise significant doubts as to the credibility of her claim to fear harm in China. (See [56].) These were:
1)With regard to relevant country information, it found her claim to have practised Falun Gong in China in the manner that she claimed, between 1999 and 2001, to be implausible and not credible. (See [58] and [61].)
2)It found her claim to have been able to obtain a passport after her record had been “cleared” to be inconsistent with her claim that security officials continued to come to her house three to four times a month. It found as not credible that they would continued to do so in such circumstances for six years. (See [59].)
3)It found her evidence as to employment to be inconsistent and not plausible. (See [60].)
The Tribunal therefore rejected her claim to have been a Falun Gong practitioner in China and rejected the relevant factual basis of her account of what she said had occurred as a result. (See [62].)
The Tribunal accepted that she had some involvement with Falun Gong in Australia. But, as it had found that she was not a Falun Gong practitioner in China, and having regard to the nature of her claimed involvement in Australia, it disregarded such conduct pursuant to s.91R(3) of the Act. (See [63].)
The Tribunal also considered two other aspects of the applicant’s claim:
1)It rejected the claim that on her return the authorities would be interested in her as a Falun Gong practitioner who had applied to remain in Australia, on the basis that she was not a Falun Gong practitioner in China, and that there was no material before it to suggest that she would be suspected of having applied for protection in Australia. (See [65].)
2)The Tribunal also rejected any claim that she would be at risk on return to China because of what she said had occurred to her family during the “Cultural Revolution” over thirty years earlier. (See [66].)
In all, the Tribunal found that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if she were to return to China and therefore affirmed the decision under review. (See [68] to [70].)
The Application
In her application to the Court the applicant puts forward the following grounds:
“1. The Refugee Review Tribunal failed to consider and determine whether the applicant faces a real chance of persecution in China on the basis that she in a Falun Gong practitioner. The ground could give rise to a well-founded fear of persecution for a convention reason, and there was evidence before the Tribunal to that effect. As a consequence of above-mentioned reason, the decision from the Tribunal is affected by jurisdictional error and must be quashed.
2. The Refugee Review Tribunal failed to deal with an integer of my claims, I have practiced Falun Gong since my arrival in Australia. I will be prosecuted if I return to China because I practice Falun Gong in Australia. The Tribunal made no finding as to whether or not this occurred, no findings about the potential application of section 91(R), and no findings about whether or not, if it did happen, it gave rise to a real chance of persecution.”
No written submissions have been filed by the applicant despite the opportunity given at the first Court date to do so. Written submissions were filed on behalf of the first respondent.
The Hearing Before the Court
At the hearing before the Court the applicant appeared in person. She was assisted by an interpreter in the Mandarin language. Ms B Rayment appeared for the first respondent.
The applicant:
1)Submitted that all information that she had put before the Tribunal was “true” and “genuine” and that her claims were true.
2)Took issue with the Tribunal’s finding that it was “not possible” for her to have practiced Falun Gong after the “crackdown” on Falun Gong in July 1999. She claimed to have joined Falun Gong a year earlier, but the Tribunal asked her why she had joined “after”, and that it was a “fact” that she was “still practising with another lady”.
3)Submitted that after she had come to Australia she had practiced Falun Gong, she had photographs of her practicing, but the Tribunal did not believe her.
4)Submitted that a lot of “spies” in Australia had taken photographs. When given the specific opportunity, she did not elaborate.
Consideration
Ground one
The applicant complains that the Tribunal failed to consider and determine whether she faced Convention related persecution on return to China. She claims that there was evidence before the Tribunal to that effect.
Any plain reading of the Tribunal’s decision reveals that it gave careful consideration to the applicant’s claims and evidence. The Tribunal’s conclusion that it was not satisfied that the applicant had a well-founded fear of harm for any Convention reason was a finding of fact open to it on what was before it. As were the findings that influenced, and led to, this conclusion.
The Tribunal does not have to uncritically accept any, or all, of what the applicant says (Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451).
The Tribunal’s finding as to the credibility of some of the applicant’s factual account were findings of fact made within jurisdiction (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).
The relevant statutory scheme (ss.65 and 36(2) of the Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out, relevantly, in s.36(2). That is, effectively, that the applicant meets the definition of “refugee” as set out in the UN Refugees Convention, such that in these circumstances, a protection visa must be granted (SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] to[16], NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] to [5], Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
That the Tribunal found that it could not reach such a level, in the circumstances, does not, of itself, reveal error. The applicant asserts that there was evidence before the Tribunal that should have led it to find that she had a well-founded fear of Convention related harm. Unfortunately for the applicant, the relevant test does not derive from some subjective view by the applicant as to the evidence before the Tribunal.
If the applicant’s complaint also implies that there was evidence favourable to her before the Tribunal, which it ignored, then she provides no particulars in support. On the material before the Court, I cannot see that such a complaint can be properly made, let alone sustained.
In all, the ground, as the Minister submits, is a disagreement with the findings made by the Tribunal. It does not rise above a request for this Court to engage in merits review – a course not open to this Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259).
The applicant’s complaints made orally before the Court – that she told the truth and that her claims were “genuine” – also do not rise above a request for impermissible merits review.
The applicant also complained before the Court that she took issue with the Tribunal’s finding that had had “joined” Falun Gong a year “after” it had been banned, and to have found that it was not possible to have practised Falun Gong at that time.
First, it is factually incorrect to say that the Tribunal found that she “joined” Falun Gong a year after it had been banned by the authorities. It is fair to say that the Tribunal accepted that she had been a Falun Gong practitioner in 1998. (See [55] and [57] of its decision record.)
But one of the matters about which the Tribunal had significant doubts, which led it to its finding that the applicant’s claims were not credible, related to the period between July 1999 (when the authorities began their “crackdown” on Falun Gong) and her arrest in February 2001 (after which the applicant made no claim to have continued to practice Falun Gong in China). (See [55] and [57].)
The Tribunal noted independent country information (which it had raised with the applicant at the hearing) that since the “crackdown” in July 1999 the authorities took “harsh action” against the Falun Gong practitioners and that those found practising in public were liable to arrest and detention. The Tribunal found (at [58]):
“As put to the Applicant at the hearing, the independent country information indicates that the crackdown on Falun Gong by the Chinese authorities began in July 1999. Since then the authorities, in particular the PSB and the ‘6-10’ office, have taken harsh action against practitioners. Those found practising in public are liable to arrest and detention. Practitioners are often mistreated while in custody and there have been many reports of severe forms of brainwashing and torture leading in some cases to death. Given this information I am not satisfied it is plausible that the Applicant and a group of up to ten people can have continued to practise, in the highly public circumstances she describes, for over eighteen months before this was brought to an end by her arrest and imprisonment. I am not satisfied that if she had been arrested a number of times before this, yet continued to practise in public, it could have taken eighteen months before the penalties escalated in severity to the point where she was imprisoned. I find this claim so implausible that I do not accept it as credible and I am not satisfied that the Applicant can have practised Falun Gong in such a way.”
In light of the above, the applicant’s complaint, as expressed before the Court, also seeks to challenge factual findings made by the Tribunal. Findings which were open to it to make and for which it gave reasons. No jurisdictional error is found in these circumstances.
Ground two
This ground asserts that the Tribunal failed to deal with an integer of the applicant’s claims, namely, that she had practised Falun Gong in Australia, and would be persecuted for this reason if she were to return to China.
Before the Court the applicant said that she had photographs depicting her Falun Gong practice. Yet the Tribunal did not believe her.
This ground, and complaint, fails. Its factual premise is plainly incorrect. The Tribunal clearly did not fail to deal with this aspect of her claims. In fact, the Tribunal accepted that the applicant had some involvement with Falun Gong in Australia. (See [63].) The Tribunal quite properly then considered the application of s.91R(3) of the Act. Having found that it was not satisfied that this conduct was engaged in other than for the purpose of enhancing her refugee claims, the Tribunal was obliged to disregard such conduct for the purposes of establishing whether the applicant had a well-founded fear of persecution in China. The Tribunal’s approach was consistent with Full Federal Court authority. (SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105).
Additional Matter
Before the Court the applicant stated that there were a lot of “spies” in Australia. They had “taken photographs.” When asked to explain this, the applicant did not do so.
It may be that this statement was related to the applicant’s claim before the Tribunal that she would also be at risk of harm if she were to return to China because the Chinese authorities would perceive her to be a Falun Gong practitioner who sought protection in Australia as a refugee.
The Tribunal dealt with this claim (at [65]). It found that there was nothing before it to suggest that simply because she failed to return, the authorities would suspect her of having applied for protection in Australia. Further, the Tribunal made this finding noting also that it was not satisfied that she had been a Falun Gong practitioner in China.
If the applicant is seeking now to “enhance” her claim by suggesting that Chinese spies operate in Australia to photograph Falun Gong practitioners, a claim that has been made by others in the past, it nonetheless does not assist the applicant before this Court.
The time to have raised such a matter was before the Tribunal. The Court, of course, has no power to determine the question as to whether the applicant satisfies the definition of “refugee” as set out in Article 1A(2) of the Refugees Convention. There is nothing before the Court to show that the applicant had raised this particular point with the Tribunal such that it was obliged to consider it. No jurisdictional error is revealed in this regard.
Other Considerations
The applicant was invited to a hearing before the Tribunal. The invitation complied with all the relevant statutory obligations for the provision of the invitation, the giving of notice, and relevant notice periods (with reference to ss.425, 425A, 441A(4)(c), reg.4.35D(b)). There was also the statement of the matter as set out in s.426A.
The “postponement” of the hearing was done at the instigation of the applicant. In these circumstances, the Tribunal did not need to again comply with the relevant notice period (SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78).
The applicant has not put any evidence before the Court to challenge the Tribunal’s account of what occurred at the hearing. This account reveals that the applicant was given the opportunity to fully set out and enhance her claims. The Tribunal put to her, for comment, what was the determinative issue in the disposition of her application. That is, that key elements of her factual account of what she said had occurred in China were subject to doubt, and could lead to a rejection of her claim to protection. (See [35], [39], [42] and [45].) The Tribunal’s account reveals that it “sufficiently indicated” to the applicant the matters relevant to the determinative issue in the review (with reference to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 and procedural fairness and s.425).
I cannot see that the Tribunal misunderstood or failed to deal with any aspect of her claim.
Minister – Model Litigant: s.424
At the hearing before the Court, Ms Rayment raised with the Court the issue of the letter sent by the Tribunal to the applicant headed: “Acknowledgment of Application” (CB 43A to CB 43B). She referred the Court to SZNAV v Minister for Immigration &Anor [2009] FMCA 693, per Raphael FM (“SZNAV”), where a letter in almost identical terms as in this case was found by the Court to be a letter inviting the applicant to provide additional information pursuant to s.424 of the Act (as it was at the relevant time), and that the letter failed to comply with the requirements of sub-ss.424B(1) and (2). This was because a written invitation pursuant to s.424 must provide for the response to be given, relevantly, within the prescribed period. This period is relevantly prescribed in regs.4.35(3) and (4) of the Migration Regulations 1994 (Cth) and starts at the end of 14 days (reg.4.35(3)) or 28 days (reg.4.35(4)) on which the invitation is received.
Section 424 was amended by the Migration Legislation Amendment Act (No. 1) 2009 (Cth) (Act No. 10 of 2009) and became operational on 15 March 2009 (Schedule 1 – items 9 to 11). The previous version of s.424, which applied to the situation in SZNAV, and the current case, was in the following terms:
“424 Tribunal may seek additional information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.
(3) The invitation must be given to the person:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the person is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.”
Section 424B is in the following terms:
“424B Requirements for written invitation etc.
(1) If a person is:
(a) invited under section 424 to give additional information; or
(b) invited under section 424A to comment on or respond to information;
the invitation is to specify the way in which the additional information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give additional information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:
(a) at the place specified in the invitation; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:
(a) a later time within that period; or
(b) a time within that period as extended by the Tribunal for a prescribed further period;
and then the response is to be made at an interview at the new time.”
The differences between the letter in SZNAV, and the letter in the current case are the references to the addressee, the date of the letter, the date of the application, and references in the letter in SZNAV to the applicant’s family. In all other material respects the letters are identical. (See SZNAV at [20].) The letter (name and address of applicant omitted) in question, in the current case, is in the following terms (at CB 43A to CB 43B):
“…
13 January 2009
[Applicant’s address]
By Post
Dear Ms [applicant’s name]
ACKNOWLEDGEMENT OF APPLICATION
We received your application on 12 January 2009.
This letter explains what we will do next and what we expect you to do. Please read it carefully.
What will the Tribunal do now?
We have asked the Department of Immigration and Citizenship (the Department) to send us its file so that the Tribunal can review your application for a protection visa.
When we get your file, we will decide if we can consider your review application. If we can consider it, a Member of the Tribunal will look at the information you and the Department have given us and information about your country.
Will I be invited to a hearing of the Tribunal?
After looking at this information the Member may either:
· make a decision in your favour; or
· invite you to attend a hearing of the Tribunal
The Member may also:
· write to you for more information
· ask you to comment on information that the Tribunal has
What is a hearing and why is it important?
A hearing is your opportunity to give the Tribunal evidence to support your application. Evidence can include:
· what you tell the Member at the hearing
· information or documents you give the Tribunal
· information or documents you ask others to give the Tribunal
When and where will the hearing take place?
We will tell you the date and time of the hearing and where the hearing will be held. Hearings can take place in person at the Tribunal’s offices in Sydney or Melbourne, but in some circumstances hearings may be conducted by video or telephone links.
What does the Tribunal expect me to do?
You should:
· tell us immediately if you change your contact details (such as your home address, your mailing address, your telephone number, your fax number or your email address) or if there is any change in the contact details of your authorised recipient. If you do not, you might not receive an invitation to a hearing or other important information and your case may be decided without further notice. We have enclosed forms to use when advising us of changes to your contact details. (You should also inform the Department of any change in these details)
· use your RRT file number when you contact us. Your file number is: 0900180
· immediately send us any documents, information or other evidence you want the Tribunal to consider. Any documents not in English should be translated by a qualified translator.
Do I have to pay a fee for the review by the Tribunal?
A fee of $1400 is payable if the Tribunal decides you are not entitled to a protection visa.
Where can I get more information?
If you have any questions you can call me on the number below. You can also call our information line on 1300 361 969 (local call charges apply from anywhere within Australia, except when calling from mobile telephones). For assistance in your language, please contact the Translating and Interpreting Services (TIS) on 131 450. You can also obtain general information from our website at
Yours sincerely
[Signature]
Deidre Olliver
TRIBUNAL OFFICER
…”
In SZNAV the reference in the letter to provide, amongst other things, information “immediately” was found to be in breach of the requirement to tell the applicant that the time within which to provide the information was 14 or 28 days. (See SZNAV at [44].)
The Court in SZNAV found, further, that the Tribunal’s failure to do so constituted unfairness. (See SZNAV at [25] and [44].) The Court made orders granting the relief sought by the applicant.
In the current case Ms Rayment submitted that the Court should not follow SZNAV, but should follow the relevant reasoning, and what was found, in SZNJT v Minister for Immigration & Anor [2009] FMCA 730 (“SZNJT”) (per Smith FM).
That case also involved an “acknowledgement letter” which, but for the addressee and dates, was in identical terms to the letter in SZNAV, and the current case. His Honour found that the statement in the letter to “immediately ... send any information …” was not an invitation intended by s.424 to come within sub-s.424(2). Therefore, there was no procedural irregularity. (See [63].)
His Honour also found that sub-s.424(2) could not have been enlivened because the acknowledgment letter could not be construed as inviting the giving of any “additional” information (at [64]).
His Honour also found that the “suggested detriment to the applicant” (unfairness) was “so remote as to be non-existent.” In all, therefore, the relief sought was refused.
In inviting the Court to follow SZNJT, rather than SZNAV, I understand Ms Rayment to request consideration by this Court of the submissions made by the Minister in SZNJT (see [51]), and to follow the reasoning of Smith FM in this regard, and as understood in light of what was said, and found, in SZNAV.
These submissions, in the form of four contentions, are set out in SZNJT at [51]:
“The Minister presents what I understand to be four alternative contentions in answer to this ground:
i. The acknowledgement letter was sent before the Tribunal commenced to ‘conduct’ the review within the language of s.424(1), so that nothing in its advice to the applicant could constitute the exercise of power under that subsection, nor under s.424(2) if it is read as implicitly being subject to the opening qualifying words of s.424(1).
ii. The statement in the acknowledgment letter is incapable of being characterised as an invitation ‘to give additional information’ within s.424(2), even if it constitutes the ‘getting of relevant information’ within s.424(1).
iii. In the circumstances of this case, the statement did not invite the giving of ‘additional’ information, since the applicant had not previously given to the Tribunal any information relevant to the Tribunal’s review.
iv. If the reference to ‘immediately’ rather than to the 14 days prescribed period under s.424B(2) was a procedural irregularity, it did not have jurisdictional consequences, or should not attract relief by Constitutional writs, since no prejudice was suffered by the applicant.”
The Minister’s First Contention
In SZNAV the Court found as “attractive” (at [23]) the applicant’s argument that the “acknowledgement letter” falls within s.424. The Tribunal’s statement that the information must be sent “immediately”, does not specify the prescribed time as set out in the Regulations and that this is therefore a breach of s.424B (at [22] to [23]).
The Minister’s first contention, in effect, is that s.424 is not enlivened because the letter was not written in the context of conducting the review, words used by sub-s.424(1). That is, the language of the letter implies, or infers, that the Tribunal either had not yet begun to conduct the review, or had not turned its mind to what was considered relevant. Therefore, s.424 has no application.
It is important to have regard to the relevant scheme of the Act.
The Refugee Review Tribunal is a statutory entity. In its totality, it certainly exists, and is established, because of s.457 of the Act. The Act also creates the constituent components of the Tribunal:
1)A Principal Member: sub-s.458(1)(a) and s.460.
2)A Deputy Principal Member: sub-s.458(1)(b).
3)The members, including Senior Members: sub-s.458(1)(c) and s.459.
4)A Registry, which the Minister is to cause to be established: s.471.
5)A Registrar: s.472.
6)The officers of the Tribunal: s.472.
In my view, it is within this constitution of the Tribunal that Part 7 of the Act must be seen and understood:
a)Division 2 of Part 7 is concerned with establishing a right of review by the Tribunal of decisions made by the Minister or his delegates refusing the grant of protection visas. In particular, I note that:
i)Section 411 identifies those decisions that are reviewable, or not reviewable, by the Refugee Review Tribunal.
ii)Section 412 is concerned with what is a valid application.
iii)Section 414 compels the Tribunal to review an “RRT reviewable decision”.
iv)Section 415 sets out the powers of the Tribunal, including the power to set aside or affirm the Minister’s delegate’s decision.
v)Section 418 allows the Registrar of the Tribunal to serve a notice on the Secretary to the Minister’s Department to provide copies of relevant materials.
b)Division 3 of Part 7 is concerned with how the powers of the Tribunal are to be exercised. In particular, I note:
i)Section 420 sets out the way by which the Tribunal should operate.
ii)Section 421 provides for the constitution of the Tribunal by a single member to be put in place by the Principal Member. A constitution that is said to be “... for the purpose of a particular review.”
c)Division 4 of Part 7 is concerned with the: “Conduct of the Review”. I note that the wording of sub-s.424(1) (as it relevantly was) included:
“In conducting the review, the Tribunal may get any information that it considers relevant …”
In my view, the relevant scheme of the Act creates a clear distinction between the general setting out of the powers of the Tribunal, the constitution of the Tribunal “for the purpose of a particular review”, and the conduct of that review.
On this view, s.424 (sited as it is in Division 4) is there to be employed in the exercise of discretion by the particular member who is properly constituted to conduct the “particular review”. I cannot see that it is open for a registry officer who is not constituted (and cannot be if they are not also a member of the Tribunal) to exercise the discretion in s.424, a discretion to be exercised in the conduct of a particular review.
The question of the timing of the constitution of the Tribunal, therefore, is critical, because there is nothing to stop a member directing, or causing, a registry officer to send any letter. But it is to be sent on behalf of, and at the direction of, a member properly constituted to conduct the particular review.
It is clear that such authorities as NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 (at [22] to [23], as cited in SZNAV at [24]), contain the direction expressed by the joint Judgment in that case and establish that: “Once an applicant had made a valid application for review of a delegate's decision, the Act imposed on the Tribunal a duty to review that decision: s 414(1).” (See NAFF at [23].)
In my view, there is a clear distinction between the imposition of a duty on the Tribunal to review, and the embarkation on the conduct of a particular review. I respectfully disagree with what was said in SZNAV, that is, that it automatically follows that: “once an application is filed with the Tribunal the Tribunal is seized of it and any thing that it does in relation to the application is done in ‘conducting the review’” (SZNAV at [25]).
That is not to say that the Tribunal, in its registry iteration, does not exist for the purposes of a particular review. Clearly, a general standard letter sent to all applicants, acknowledging receipt of the application is sent to a particular applicant for the purpose of the particular review relating to that applicant.
In short, therefore, upon receipt of a valid application in relation to an RRT reviewable decision, the Tribunal has a duty to review that decision. The Tribunal, as a statutory entity, exists for the purpose of dealing with that particular review, which exists from the time of application. But the conduct of the particular review, that is, the consideration of the matters set out in Division 4 of Part 7 of the Act, is for the properly constituted member of the Tribunal (a constitution that takes place some time after the commencement of the review), to turn his or her mind to in the exercise of the conduct of that particular review.
In AZAAA v Minister for Immigration and Citizenship [2009] FCA 554 (per Mansfield J) the Court was concerned with, amongst other things, the reconstitution of the Tribunal. But what was said at [36], and in particular [37], is of assistance in relation to the current issue:
“36. Counsel for the applicant submitted that s 421 must be confined to the initial direction of the Principal Member because there is only one “review”, and that so long as ss 422 and 422A are not available to change the designated member, the “review” must be conducted by the initially designated member. The consent order leading to the review being remitted to the Tribunal did not quash the review, but only the decision. Hence, it was argued, the review was ongoing and the direction appointing Member Muling to conduct it remained in force.
37. However, in my view, the word “review” in s 421 does not have such a limited meaning. The word “review” is not used in the Act consistently in so limited a way. It is used as a verb, to describe the obligation of the Tribunal to “review” certain decisions: s 414. Section 415 sets out the Powers of the Tribunal “for the purposes of the review”. Not surprisingly, the Tribunal’s processes are recognised as including an application for review, the receipt of documents from the Secretary relevant to the review: s 418; and more generally the process of review: s 420(2). Section 421 allows for the appointment of a member to conduct a particular review. Clearly that must occur after the review has commenced by the application, and may be made after the receipt of the relevant information under s 418. It is consistent with those various provisions that, at some point after a review is commenced by application a member will by s 421 be directed to constitute the Tribunal. That does not mean the Tribunal did not exist for the purposes of the particular review until that time, or that the review did not exist until that time. In that context, where (as here) the decision of the Tribunal as first constituted has been quashed and the Tribunal is directed “to determine the matter the subject of the decision according to law”, there is no reason to regard the process of the review from at least the point of designating a member to conduct it as having commenced. That is, I consider that the remittal of the review to the Tribunal entitled the Principal Member to re-exercise the power under s 421 of directing a member of the Tribunal to conduct it.”
The relevant scheme of the Act, then, is that the review is commenced by the application. The Tribunal, as an entity, clearly exists to receive the application. It has been given structure and powers for this purpose.
But at sometime after the receipt of the application and the commencement of the review, s.421 allows for the appointment of a member to conduct a “particular” review. It is in conducting that particular review that the particular member has available, amongst other matters, discretion provided by s.424 to get information and to invite a person to give additional information.
In my respectful view, a proper understanding of the relevant scheme of the Act does not allow for the view expressed at [25] of SZNAV that, in effect, the commencement of the review is the same as the conduct of the review. In my view, the conduct of the review awaits the constitution by a member to “conduct” the review. The power in s.424 falls within the sphere of the “conduct” of the review by the member, not simply in the existence of the review.
For this reason, I respectfully do not agree with the dismissal of the Minister’s submission as reportedly made in SZNAV. It may be that the “Minister’s submissions [did] not deal with the problems posed by the existence of sub-s.414(1) of the Act …” (SZNAV at [24]). But as I understand the Minister’s relevant submissions (as further explained in SZNJT (at [51] (i)), and when understood in light of the scheme of the Act (referred to above), the Minister’s submissions did not need to do so.
That is because, in my respectful view, s.414 does not pose the “problem” as contemplated in SZNAV. The review commences on receipt of the application. The conduct of the review, including the possible exercise of the power in s.424, is only engaged after the constitution of the Tribunal by a member.
When seen in this way, the “acknowledgment letter”, sent in the current case by Ms Olliver, a “Tribunal officer” (as in SZNAV), was not, on its face (subject to what is set out below), sent by the Tribunal as constituted by a member for the purposes of this particular review and in the conduct of the review. It was sent after the review had commenced, but not in the conduct of this particular review.
The issue, however, also, is whether it was sent at the direction of a member, properly constituted, for the purposes of the review and in the conduct of the review. The letter, acknowledging the application, was certainly sent by the Registry of the Tribunal as part of the general business of acknowledging applications and providing information as to what would, or could, happen in the conduct of the review.
That this letter had this “general” quality was acknowledged in SZNAV. At [20] his Honour said:
“The letter … will be familiar to anyone involved in migration matters. It is the first letter sent to an applicant following the receipt of an application to the Refugee Review Tribunal …”
But on the evidence before this Court in the current case, it is not possible to satisfactorily answer this question. As in SZNJT (see [52]), there is no evidence before the Court as to the Tribunal’s actual processes in the constitution of the Tribunal after the lodging of the application for review, nor any evidence as to the constitution of the Tribunal in this case, and most importantly, the time of the actual constitution and whether it was before or after the sending of the “acknowledgment letter”.
In SZNJT (at [52]) the Court said that:
“… an undeveloped form of this contention was submitted to Raphael FM in SZNAV, and that he rejected it upon an opinion that the Tribunal should be regarded as ‘conducting the review’ from its inception upon the receipt of a valid application for review …”
With respect, I do not see what was relevantly said in this regard in SZNAV as being an “opinion”.
I understood the reasoning to be that once an application is filed, anything that the Tribunal then does is done in “conducting the review”, and was clearly part of (indeed, a critical threshold part of) the ratio of the judgment in SZNAV. In “conducting the review” the Tribunal was said to have sent the “acknowledgement letter” which invited the applicant to provide additional information. Section 424 was engaged (which therefore engaged s.424B) because it is the only source of power in the Act by which the Tribunal can obtain additional information by invitation from a person.
It is with the “threshold” part of this reasoning that I respectfully disagree.
However, without the actual evidence as to constitution in the present case, I am unable to find as to when the Tribunal was constituted by a member in the current case, such that the conduct of the review could proceed. Without that evidence the Minister’s first contention (as adapted by Ms Rayment before me) cannot assist the Minister in the current case.
In these circumstances, and without further submissions from the Minster, it is not necessary to examine that part of the Minister’s contention relating to whether sub-s.424(2) may be read as implicitly being subject to sub-s.424(1).
The Minister’s Second Contention
The second contention by the Minister is that the acknowledgment letter is incapable of being characterised as an invitation “to give additional information” within sub-s.424(2), even if it constitutes the “getting of relevant information” within sub-s.424(1).
In the current case the Minister asks that I follow what was found by Smith FM in SZNJT in this regard, rather than what was found in SZNAV.
I respectfully agree with Smith FM that (in relation to the Minister’s second contention) the reasoning in SZNAV should not be followed. I do so for three reasons.
I respectfully take a different view of the relevant authorities than that taken in SZNAV, and I generally agree with the reasoning in this regard in SZNJT.
In my view, the relevant Federal Court authorities on this issue provide direction away from the approach adopted in SZNAV of a “robust application of the purposive doctrine of statutory interpretation” (at [31]).
Relevant dicta in the Federal Court (and taking into proper account the structure and relationship of sub-s.424(1) and sub-s.424(2)) would lead to a view that not all of what a Tribunal says to an applicant (or another person) about the giving, and getting, of information, should be seen as coming within sub-s.424(2).
First, the distinction was highlighted in SZLTR v Minister for Immigration and Citizenship [2008] FCA 1889 (“SZLTR”) (per Siopsis J) at [33]:
“… Section 424(1) gives the Tribunal a general power to "get" information without prescribing the process by which it may "get" that information. By contrast, s 424(2) provides for a specific process. It is initiated by the Tribunal issuing an invitation …”
In SZLTR, while some doubt was expressed as to the application of sub-s.424(2) to circumstances involving a communication by the Tribunal to the Australian Department of Foreign Affairs, relating to the applicant’s party political status, the Court was not called upon to decide the issue (at [35]).
However, the relevant aspect to be drawn is (at [33]):
“…The invitation must be delivered by a means prescribed by s 441A and it must ask the recipient to give the Tribunal ‘additional’ information. The use of the word ‘additional’ to qualify the information that is sought, and the fact that the provisions of s 441A contemplate that the invitation is to be delivered to the recipient personally or to an address which the recipient has already provided to the Tribunal (ss 441A(3), (4) and (5)), are indications that s 424(2) has application only in limited circumstances. Those circumstances would be where the recipient of the invitation has previously given information to the Tribunal in relation to the review then being conducted by the Tribunal …”
Previously, a Full Court in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83; 168 FCR 256 (per Tamberlin, Goldberg and Rares JJ) considered circumstances where a person had provided information, by way of a letter which related to the applicant’s (in that case) church attendance. The applicant put this letter before the Tribunal in support of his claims. The letter contained the author’s telephone number. The Tribunal contacted this person by telephone and sought “additional information” to that in the letter.
The Full Court held that the Tribunal had invited this person to give “additional information” to that given in the letter within the meaning of sub-s.424(2). Its failure to comply with sub-s.424(3) and s.424B in these circumstances was a failure to comply with the relevant statutory requirements.
What can be relevantly noted is that the circumstances in SZKTI did not involve any requirement to identify the “getting” of information under sub-s.424(1), and the relationship with “getting” “additional information” under sub-s.424(2). That is the contrast between the two.
Following SZKTI, in SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119; (2008) 170 FCR 236 (at [38] to [40]), Buchanan J said:
“38. The Minister initially had two answers to the contention that the oral request made by the RRT was required to be in writing.
39. The first was that the underlying purpose of an invitation under s 424(2) was to engage the procedures in s 424C which allowed the RRT to make a decision on a review without taking further action to obtain the information if it was not provided as required. It was argued that the RRT had a discretion whether to engage that procedure or not. The Minister argued that the reference in s 424(2) to not limiting subs (1) meant that the RRT could proceed pursuant to s 424(1), rather than s 424(2), to obtain the information from the appellant and not provide its request or invitation in writing. The only consequence, it was argued, was that s 424C was not engaged.
40. I am not able to accept this construction. The first reason I would reject it arises from the terms of s 424 itself. It seems apparent that s 424(1) is not confined to obtaining information by inviting a person to give it. The RRT may conduct its own researches and make requests for information that it considers relevant. The condition which attaches to such a step is that it “must have regard to that information in making the decision on the review”. That condition, in my view, continues to apply if the more limited circumstances in s 424(2) are engaged. In Win v Minister for Immigration and Multicultural Affairs [2000] FCA 1363 at [71]-[72] Lindgren J expressed a contrary view. His Honour also thought that the requirement that the information be ‘relevant’ was not imported into s 424(2). In my respectful view that gives insufficient attention to the opening words of s 424(2) but my disagreement with his Honour’s construction of s 424(2) does not affect any ultimate conclusion in the present case.”
What can be drawn, therefore, is that there exists a distinction between sub-s.424(1) and sub-s.424(2). That an invitation for “additional information” under sub-s.424(2) is only a “part of the information” that the Tribunal may get under sub-s.424(1), with the suggestion being that it is “limited” in application when compared with sub-s.424(1).
The relationship between sub-s.424(1) and sub-s.424(2) must also be seen in light of what was said in SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 (“SZLPO”) at [102]:
“102. Second, although we do not decide the question, we suggest that subs (2) is not a subset of subs (1). Certainly the terms of subs (2) are broad enough to permit an open ended invitation to give additional information provided only, as we have decided it must be, it is information additional to that which the invitee has previously given to the Tribunal.”
Whether sub-s.424(2) is a subset of sub-s.424(1) or not, what remains is that the Full Court in SZLPO adopted a confined, or limited, approach to the meaning of “additional information” (in sub-s.424(2)), than the more “robust” understanding set out in SZNAV at [31].
See SZLPO at [99]:
“… We suggest that a more limited meaning of ‘additional information’ must be looked for. Again, that which suggests itself is ‘information additional to information previously given to the Tribunal by the invitee’.”
(See also [103] to [105], [109] and [114].)
In all, this supports the underlying premise to the Minister’s second contention. That is, the contrast between the two subsections in s.424.
In light of the above, I also respectfully agree with Smith FM that this is consistent with the approach, relevantly, in Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201; (2005) 146 FCR 498 and MZXRE v Minister for Immigration and Citizenship [2009] FCAFC 82 (“MZXRE”). Cases cited in SZNAV, and in the case of the latter, distinguished between the invitation in the relevant letter and the invitation to provide “documents”, rather than “information” (SZNAV at [29]).
In MZXRE the Tribunal sent two letters to the applicant following remittal of the case to the Tribunal for determination according to law. (See MZXRE at [4], and [7] to [10] per North and Rares JJ, and [61] to [64] per Graham J.)
The second letter was said to have: “… formally invited [the applicant] under s 424 to provide … any additional evidence …”, and further: “warned the appellant that if the tribunal did not receive additional information within the time allowed it could proceed to make a decision on the review without taking any further action to obtain that additional information.” But it was to an earlier letter from the Tribunal in MZXRE to which his Honour’s reference in SZNAV was made (at [29]). Relevantly, in MZXRE the Full Court said (at [7] to [8]):
“On 29 October 2007 the tribunal wrote to the appellant by registered post at his nominated address advising him that his case had been remitted to it for reconsideration. The appellant received this letter. It invited him to provide any documents or written arguments he wished the tribunal to consider which he had not already provided. The letter also stated:
‘In the meantime, your case will be allocated to a member of the Tribunal who has not previously made a decision in relation to your case. A member may do one or more of the following:
• seek further information
• seek your comments on particular information
• invite you to a hearing
before making a decision on your case.’
8 It is common ground that this letter did not amount to an invitation to the appellant to give additional information within the meaning of s 424(2) of the Act. This was because it had not specified a date, in accordance with s 424C(1)(b), before which any information had to be provided.”
While there are extracts of the relevant letter set out in MZXRE (see [7] and [69]), the full text is not reproduced. But on what is reproduced, and in any event, the “differentiation” between that letter and the letter in the current case (as in SZNAV – see [29]) is to the point. What the Full Court stated was “common ground” was that the letter was not an invitation to give “additional information” within the meaning of sub-s.424(2): “because it had not specified a date, in accordance with sub-s.424C(1)(b), before which any information had to be provided.” On my reading of this, it was not because of any distinction between “documents”, “written arguments”, and a request for “information”, as said in SZNAV.
Finally, and separately, I also note the reference in SZNJT (at [56]) to SZMBS v Minister for Immigration and Citizenship [2009] FCAFC 65 (at [37]):
“In making the telephone call to Brother Poh, the Tribunal was doing no more than taking up the invitation extended by the letter of 3 February 2009 to contact Brother Poh. The Tribunal was simply responding to the offer made by the letter. The appellant acquiesced in that response. The transcript quoted above indicates, if anything, that the appellant encouraged the Tribunal to make the telephone call to Brother Poh as suggested by the Tribunal. When the Tribunal accepted the invitation in the letter, addressed to the world at large, to contact Brother Poh if there was any further enquiry, the Tribunal may have been attempting to get information. However, the Tribunal was not inviting Brother Poh to give additional information within the meaning of s 424(2). At most the Tribunal was making an enquiry as to whether Brother Poh had relevant information to give to the Tribunal. It did not invite him to give information, much less additional information.”
In all, therefore, I agree with Smith FM that a proper construction of sub-s.424(2) does not encompass all statements made by the Tribunal inviting the provision of information. I also respectfully agree with what he said at [58] with reference in particular to what was said in SZNAV at [26], and [30] to [32]:
“In this reasoning, Raphael FM adopts a ‘robust application of the purposive doctrine of statutory construction’, and assumes that the getting of information from an applicant was intended by the legislature normally, if not always, to be performed through an invitation complying with the formalities of s.424(2). However, I do not agree with that reasoning, nor that such a policy can be distilled from s.424 or any other part of the Migration Act. As I have indicated, I consider that the Federal Court authorities tend against, rather than in support, of such an approach to the application of s.424(2).”
The second reason that I do not follow the ratio in SZNAV (in relation to the Minister’s second contention) is that the challenged statement from the Tribunal’s letter in SZNAV, when read properly in context, and when the letter is properly read as a whole, bearing in mind the state of the proceedings as to when it was sent, then the impugned statement in the acknowledgement letter should not be seen as characteristic of s.424(2).
The application for review in the current case was made on 19 January 2009 (CB 40). The acknowledgment letter was dated and posted on 13 January 2009 (CB 43A). In SZNAV the application for review was made on 16 July 2008 (at [1]). The date of the letter was 17 July 2008 (at [20]). It appears to have been assumed in SZNAV that it was also sent on that date. I note also that in SZNJT the acknowledgment letter was dated 23 September 2008, the day after the making of the application for review.
In my view, when properly read in context, the language of the acknowledgement letter as a whole is explanatory, not invitational.
In SZNHU v Minister for Immigration & Anor (No. 3) [2009] FMCA 777 (“SZNHU No. 3”), Scarlett FM (relevantly faced with the identical situation as in the above three cases), also relevantly chose not to follow SZNAV in this regard. His Honour’s reasoning in choosing not to follow SZNAV, in part, was that the “acknowledgment letter” did not constitute a request to the applicant to send additional information under s.424 because, again in part, the text of the letter was to variously advise and to explain to the applicant as to what may happen in the processing of the application for review. (See SZNHU at [46] to [49], [51], and [53] to [54].)
I respectfully agree with both Smith FM and Scarlett FM that the part of the acknowledgment letter which was the subject of, and focus in, SZNAV (and common to the other cases and the current case):
“What does the Tribunal expect me to do?
You should:
…
· immediately send us any documents, information or other evidence you want the Tribunal to consider. Any documents not in English should be translated by a qualified translator.”
was clear advice to the applicant, amongst other advice, as to the Tribunal’s action in obtaining relevant documents from the Minister’s Department, the possibility of being invited to, and the importance of, a hearing, and how the applicant could go about ensuring that what he wanted to put to the Tribunal (as opposed to what the Tribunal might subsequently request) be put before the Tribunal to facilitate the review. (See SZNJT at [62], and SZNHU No 3 at [54].)
Ultimately, the letter is what it purports to be: an “acknowledgment letter”. It contains what would be expected of such a letter: acknowledgment of the receipt of the application and advice as to how the review was to be conducted.
In my view, the letter, in context, did not amount to the Tribunal “getting” information from the applicant in the sense that it was an invitation to the applicant to give “additional information” or, for that matter, “information” such as to bring it within sub-s.424(2).
The third reason that the Minister’s second contention should be upheld, and the relevant reasoning in SZNAV not followed, is that I respectfully do not agree with the reasoning in SZNAV that “objectively” any disadvantage would accrue, or did accrue, to an applicant. (See SZNAV at [44] and the reference therein to [25].)
At [30] of SZNAV the Court said:
“I should also express my concern about the apparent denomination of some letters as “not amounting to an invitation under s.424”. What exactly is the status of such letters? Clearly, if such a letter is written before a hearing and is not responded to the Tribunal would be exceeding its authority to proceed without providing a hearing under s.424C(1). But what is the situation with regard to letters of acknowledgement such as the one written in the instant case? In those circumstances the letter would not be an invitation under s.424, what then is it? I can see that there are attractions in designating it a non-invitation. If it is, none of the requirements of s.424B are invoked but the Tribunal would still have to have regard to any information provided because of s.424(1). Whilst this might secure the result wished for by the drafter of the letter, it does appear to fly in the face of the intention of this section of the Act, namely, to ensure a modicum of procedural fairness in relation to the gathering of information. Avoiding those responsibilities by deliberately designing a letter that effectively infringes a requirement (s.424B(2)) would, to my mind, be a most unsatisfactory way of securing the intended outcome.”
As I have stated elsewhere in this judgment, with respect, my short answer to the question posed as to how the letter is to be characterised (the answer to: “what then is it?”) is that it is an “acknowledgement letter”.
But as I respectfully understand, what is said in SZNAV in this regard is, in part, that the acknowledgement letter should be designated as being invitational, or falling within the meaning of s.424, because to do otherwise would be to allow the designer of the letter to avoid the procedural fairness responsibilities in relation to the gathering of information. Responsibilities which are the very intention of this section of the Act.
The emphasis on procedural fairness responsibilities in this way, and in the context of an acknowledgement letter, raises the question as to whether, having regard to the scheme of the Act, any failure in the procedural fairness occurred in the circumstances of the current case, or would occur in the conduct of the review.
Noting that I have already addressed above the issue of whether the legislative intent was that s.424 was to be the only way that the getting of information from an applicant could be done, and the relevance of the procedural fairness issue to the question of whether any procedural irregularity in the acknowledgement letter could, or would, amount to jurisdictional error (dealt with below), I comprehend that in SZNAV the Court reasoned that, by taking the view that the terms of the acknowledgment letter fell within sub-s.424(2), two possible disadvantages, which would otherwise accrue to the applicant, would be avoided.
The first is that by inviting the applicant to provide additional information in the acknowledgement letter, the purpose behind such an invitation is to enable the Tribunal to consider whether it is able to make a decision in the applicant’s favour without proceeding to a hearing. The additional information sought by the letter, therefore, has a particular importance. (See SZNAV at [25].)
I respectfully agree with Smith FM that far from creating a disadvantage for the applicant, characterising the acknowledgment letter as an invitation under sub-s.424(2) achieves the contrary result. Again, proper regard is to be had to the relevant scheme of the Act. (See [59] to [61] of SZNJT.)
As Smith FM sets out (at [59]), the “central right of procedural fairness under the Act concerns the important opportunity under sub-s.425(1) ‘to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.’”
If the acknowledgement letter is regarded as including an invitation pursuant to sub-s.424(2), then the conjunction of sub-s.425(2)(c) and sub-s.424C(1) would deprive the applicant of the right to a hearing pursuant to sub-s.425(1), even if the letter specified the relevant time for the making of the response to the invitation (at [67]).
I respectfully agree with Smith FM (at [61]):
“In my opinion, the penal aspect to a s.424(2) invitation given to an applicant provides a potent reason for being slow to find such an invitation in a preliminary acknowledgement letter sent upon the lodgement of every application for review. Contrary to Raphael FM’s opinion, I can see an excellent reason both in terms of administration, and fairness to applicants, for ‘deliberately designing’ such a letter so that it does not amount to an invitation under s.424(2), and for the Court to be slow to characterise the letter as containing such an invitation.”
The second possible disadvantage identified in SZNAV, arising from the similar circumstances as in the current case, is that (at [44]):
“… It could also be said that an applicant who was told that he had to provide information “immediately” would not take any steps to provide information that he could not obtain in that short space of time and thus lose an opportunity of putting forward important evidence to the Tribunal. Given the difficulties that many applicants are encumbered with; lack of education, lack of English, lack of understanding of the Tribunal process, lack of assistance, this is not a far fetched possibility …”
In my respectful view, this ignores the very “advantage” that accrues to an applicant (from the very relevant scheme of the Act) if the letter is not regarded as an invitation under s.424(2). If the applicant, given the acknowledged difficulties that such applicants face, felt that there was insufficient time to provide the information (in circumstances where to do so, it had to be done “immediately”) was given, by virtue of the requirements of s.425 of the Act, and by what the Tribunal actually did in the current case, ample subsequent opportunity to provide information, additional information, evidence and argument.
In the current case, the acknowledgement letter was dated, and posted, on 13 January 2009. Whatever the applicant made of it, she was then sent a letter dated 9 February 2009. The applicant was told that the hearing was the opportunity for her to give evidence and present arguments. It also stated: “Please use this form or attach additional information if you have any requests or any new information which you wish the Tribunal to consider …” (CB 44).
The applicant subsequently attended the hearing (on a postponed date). She was given the opportunity to provide additional submissions and evidence after the hearing. (CB 62 to CB 63 and [46] to [48] at CB 74 to CB 75.)
The reasoning (at [25] of SZNAV, as further explained at [44]) that the applicant is disadvantaged (and thereby denied procedural fairness) by the terms of the letter is, in my respectful view, not borne out, either on the basis of the opportunity afforded by, and attendant on, s.425, and by what the Tribunal actually did in fulfilling its obligations in this regard in the conduct of the review. (See further below.)
In all, therefore, I agree with the Minister’s second contention and do not, with respect, follow SZNAV in seeing the acknowledgement letter as being an invitation pursuant to s.424 and thereby engaging the requirements of s.424B.
The Minister’s Third Contention
The Minister’s third contention is that, in the circumstances, the statement did not invite the giving of “additional” information because the applicant had not properly given to the Tribunal any information relevant to the review.
In SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 (“SZLPO”) the Full Court, amongst other matters, was concerned with the meaning of “additional information”. The Court provided direction on the proper construction of this term for the purposes of s.424(2). (See at [99] to [100], and as applied in relevant circumstances at [124] SZLPO; [128] and [133] in SZLQH, [159] in SZLPP, before the Full Court at the same time.)
In SZNAV I understood the relevant reasoning to be that the acknowledgment letter invited the applicant to provide “additional information” in circumstances where: “the original information which the applicant has provided being the information contained in the application to the Tribunal.” (See SZNAV at [25].)
Further, that the additional information requested was required for a particular purpose (at [25]):
“That purpose is for the Tribunal to consider whether or not it is prepared to make a decision in the applicant’s favour without the That purpose is for the Tribunal to consider whether or not it is prepared to make a decision in the applicant’s favour without the necessity of inviting him to a hearing. This must be ‘conducting the review.’”
I understood the invitation therefore to be for “additional information” to the information provided “in the application to the Tribunal.”
If this is a reference to the bare personal details usually provided in the application form itself, then I can only agree with Smith FM, and respectfully disagree with Raphael FM. In those circumstances, the impugned part of the acknowledgement letter seeks “additional information” relevant to an applicant’s claims to protection in Australia. (See SZNJT at [67].)
Under the heading of: “What does the Tribunal expect me to do?” the acknowledgement letter provides three answers. (See [55] above.)
The third answer is the impugned part of the letter. It is clearly directed to the substance of the applicant’s claim to be a refugee.
The first answer, which is not directly impugned in SZNAV is plainly directed to the applicant’s personal or “contact details”.
I assume that the “Application for Review” form itself in SZNAV (and SZNJT, and in SZNHU, for that matter) is the same application form reproduced in the Court Book in the current case. (See CB 40 to CB 43.)
If so, and certainly in the current case, the form is plainly directed to, and concerns, the provision of contact details, not information relevant to refugee claims. The impugned part of the acknowledgement letter is to be distinguished from what precedes it. The letter, at the impugned part, does not invite further contact details, or “additional information” in relation to contact details.
The information which the impugned part of the letter is concerned with is not, therefore, and cannot be, “additional” information to that provided in the application form.
It may be that in SZNAV, as Smith FM conjectures as a possibility, other information relating to the refugee claims was also included in the application. But that is not the situation in the current case. Nor was it obviously the case in SZNJT.
I note, further, what was said in SZLPO at [99] and the reference to:
“Presumably the first time the Tribunal becomes seized of information is when the Secretary sends documents to the Registrar under s 418(3).”
This “presumption” would appear to support the view taken in the current case (and in SZNJT) that the contact details requested and provided in the application form are either not “information” such that a subsequent invitation for information can be said to be an invitation for “additional information”, or is not information relevant to the applicant’s refugee claims. That the information (whatever its subject matter) of which the Tribunal “first” “became seized”, being contained in the documents sent by the Secretary (s.418(3)) and is the first opportunity for “information” to be given to the Tribunal which may then form the basis for subsequent requests to be for “additional information”.
In either case, it supports the view taken in SZNJT, and the current case, and detracts from what was said in SZNAV, if the reference there was to what was simply put in filling out the application form. If the reference in SZNAV was to anything else, for example, information going to the matter of the applicant’s refugee claims, then it is clearly distinguishable from the current circumstances.
The Elements to Engage s.424(2)
I agree with Smith FM, therefore, and the Minister’s third contention, which, when applied to the circumstances of the current case, succeeds.
In SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 (“SZKCQ”) (per Buchanan J) the Full Court set out at [41]:
“The elements which must be present for the engagement of s 424(2) are: an invitation; to a person; to give information; which is additional information …”
For the reasons set out above, the acknowledgement letter in the current case does not meet two of these elements. It is not “an invitation”, and it does not invite the giving of information which is “additional information”
In view of this, therefore, sub-s.424(2) is not engaged, and there was no failure to comply with the relevant formality in s.424B. I cannot see jurisdictional error in these circumstances.
The Minister’s Fourth Contention
For this reason, it is not strictly necessary to consider the Minister’s fourth contention. However, I note that in the circumstances, I would agree with the Minister that even if the reference to “immediately”, rather than 14 days (or, for that matter, 28 days) in the acknowledgement letter was a procedural irregularity (if it was said to have occurred), it did not have jurisdictional consequences.
The issue is, if there was a breach of s.424B, whether in the current and relevant circumstances any such procedural irregularity constitutes jurisdictional error.
In SZNAV Raphael FM considered relevant authorities (at [35] to [42]: SZEXZ v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 449, per Jacobson J, particularly at [37], [45] to [49]; M v Minister for Immigration & Multicultural Affairs [2006] FCA 1247 (“M”) per Tracey J at [28], [32] to [37]; SZLWQ v Minister for Immigration [2008] FCA 1406 per Buchanan J at [53] to [58]; SZLQH considered with SZLPO, at [137]).
For current purposes, I note his Honour’s conclusion as to what is to be relevantly understood from these authorities. At [43]:
“What I take from these cases is that the Federal Court has been reluctant to make the sweeping assertion that any breach of the time provisions contained in s.424B and the Regulations constitutes a jurisdictional error. It is most reluctant to find that a jurisdictional error has been made when an applicant is given more time to provide the information than that contained in the Regulations. However, where the breach of the Regulation constitutes unfairness to an applicant the Court would hold that a jurisdictional error has occurred (SZLQH) …”
In the context of the Minister’s contention, therefore, adopted by Ms Rayment before me, the question is whether in the circumstances before the Court now, the suggested procedural irregularity or the (to use the words in M at [36]): “misstatement of the prescribed period in the letter of invitation should lead to invalidity of the Tribunal’s ultimate decision …”
Additionally, as also recognised in SZNAV (at [43]), and SZNJT (at [68]), consideration of the particular circumstances of each case is also relevant to the situation where the breach is such that jurisdictional error is made out, as to whether the Court should, in any event, exercise its discretion to grant the relief sought.
In note, in particular, SZLPO/SZLQH at [144]:
“SZLQH has pointed to no practical injustice that he suffered as a consequence of the making of the decision prior to expiry of the 28 day period. He contends that this does not matter. It does: where jurisdictional error is established, the granting of relief remains discretionary.”
In the current case, the relief that the applicant seeks – writs in the nature of certiorari and mandamus – is discretionary. (See, generally, Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 at [33] and Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1.)
In the circumstances of the current case, I do not see that the suggested procedural irregularity would constitute unfairness to the applicant. Nor, if in the alternative it was necessary to consider the exercise of the Court’s discretion, can I see that the current circumstances contain, or give rise to any “practical injustice”, or that the use of the word “immediately”, instead of 14 or 28 days, made any practical difference to the proceedings before the Tribunal or its decision.
In the current case, the acknowledgement letter is dated 13 January 2009. By subsequent letter dated 9 February 2009 the applicant was invited to a hearing scheduled for 17 March 2009. Not only did that subsequent letter give the applicant the opportunity to come to a hearing to give evidence and put her arguments, but also the opportunity to provide information.
The applicant sought, and was given, a postponement of the hearing. (See CB 50 to CB 51.) The letter, notifying her of this, also gave her the opportunity to provide information, or additional information.
The applicant attended at the hearing on 26 March 2009 (CB 55). The hearing lasted over two hours (CB 55). Following the hearing, the applicant made further submissions and provided information (CB 62 to CB 63). The Tribunal considered these submissions and information. (See [47] to [48] at CB 74 to CB 75.)
In SZNAV it was reasoned (at [44]) that an applicant, given the particular and additional difficulties attaching to applicants for protection visas, who come from non-English speaking backgrounds, who is told to send information “immediately” may not take any steps to do so if the information could not be obtained in a short space of time, and therefore lose the opportunity to put forward important material.
I can only say that in the current circumstances, and having regard to the relevant statutory scheme, I cannot agree that any opportunity would be, or was, lost. Subsequent correspondence from the Tribunal providing the same opportunity (without the use of the word “immediately”) cannot be ignored. The critical opportunity afforded by the hearing also cannot be ignored. That the applicant did provide information to the Tribunal in a far more meaningful context (that is, after a hearing, where the determinative issues were canvassed), also cannot be ignored. I cannot see that the use of this word “immediately” in the acknowledgement letter, instead of 14 days, or 28 days, in the circumstances, had any impact whatsoever on the process, or the decision.
I note also what is relevantly set out in SZNAV at [25]. That is, that an applicant, in being deprived of the opportunity to provide information at an early stage, may be deprived of the “benefit” of a favourable decision, without the necessity of an invitation to a hearing.
Like Smith FM, as in the circumstances before his Honour in SZNJT (see at [71]), in the circumstances now before the Court, I also find such a “detriment” as being so remote as to be non-existent.
The applicant was invited to an interview before the delegate. She did not attend. The delegate’s decision was based on an inability to reach the requisite level of satisfaction such that a protection visa must be granted, because of the “absence of an interview”. (See CB 38.)
The applicant provided nothing further to the Tribunal with her application for review (other than her contact details).
Given what she had put in her protection visa application, and given the delegate’s decision, even at the time of the acknowledgement letter, let alone in light of what the applicant subsequently gave the Tribunal, there was not even a remote likelihood that the Tribunal would, or could if it was to properly consider the review, make a decision favourable to the applicant without conducting a hearing. This, in my view, is a positive example of why so many authorities recognise the central importance of a hearing to the Tribunal process, and the need for it to be conducted fairly, and properly, in all relevant respects. (See, for example, SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152.)
In relation, therefore, to the Minister’s fourth contention, even if it could be said that there was any failure to strictly comply with sub-s.424(2) and s.424B, I cannot see that it had any jurisdictional consequences.
Even if in the extreme alternative, it could be said that the alleged “failure” did amount to some error of procedure, it is of such a nature that no practical injustice occurred to lead to the granting of the relief sought.
Conclusion on SZNAV
I cannot see, in all the circumstances, that SZNAV can assist the applicant before the Court now.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error, neither as a result of consideration of the grounds of the application, the applicant’s complaints before the Court, the Minister’s raising of the issues in SZNAV, or otherwise. In these circumstances, I dismiss the application.
I certify that the preceding one hundred and eighty-two (182) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 19 August 2009
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