SZOGX v Minister for Immigration and Citizenship

[2010] FCA 1238

FEDERAL COURT OF AUSTRALIA

SZOGX v Minister for Immigration and Citizenship [2010] FCA 1238

Citation:		SZOGX v Minister for Immigration and Citizenship [2010] FCA 1238
Appeal from:		SZOGX v Minister for Immigration and Citizenship [2010] FMCA 508
Parties:		SZOGX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 937 of 2010
Judge:		SIOPIS J
Date of judgment:		12 November 2010
Date of hearing:	10 November 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	23
Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the First Respondent:	Ms B Rayment
Solicitor for the First Respondent:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 937 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOGX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	12 NOVEMBER 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the first respondent’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 937 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOGX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	12 NOVEMBER 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of India who arrived in Australia on 19 August 2009.  On 28 September 2009, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship.

2. In his protection visa application, the appellant claimed to be a businessman and supporter of the Congress Party.  He said that his family had been in a long-term conflict with another family in the village.  He claimed that after an argument in 2001, his home was attacked, and his father and uncle were injured, and another uncle was killed.  The matter was reported to the police, and three members of the rival family were arrested.  One of the arrested died in jail, and the other two were released.  In the 2008 elections, one of the rival family members was elected as a member of the Bharatiya Janata Party (BJP), and ordered his members to kill the appellant and his family.  The family decided that the appellant should leave India, and he decided to come to Australia.

3. A delegate of the first respondent refused the appellant’s application for a protection visa on 18 December 2009 on the basis that he did not have a genuine fear of harm and that there is not a real chance of persecution occurring.

   THE TRIBUNAL

4. On 15 January 2010, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate’s decision.

5. On 28 January 2010, the Tribunal wrote to the appellant advising him that it had considered all the material before it relating to his application, but that it was unable to find in his favour, based on that information alone.  The Tribunal invited the appellant to give oral evidence and present arguments at a hearing on 25 February 2010.  The Tribunal’s letter was sent by registered post to the address indicated by the appellant in his protection visa application, and in his application for review to the Tribunal.

6. The appellant did not respond in any way to the Tribunal’s letter of invitation and he did not appear at the hearing.

7. The Tribunal noted in its reasons for decision that the appellant did not appear at the hearing, nor did he contact the Tribunal to seek an adjournment of the hearing. In these circumstances, and pursuant to s 426A of the Migration Act 1958 (Cth) (the Act), the Tribunal proceeded to make its decision without taking any further action to enable the appellant to appear before it.

8. The Tribunal found that the appellant had not provided sufficient detail of his claim for the Tribunal to be satisfied that he was in fact involved in the Congress Party, or that any of the other claimed events had in fact occurred.  Accordingly, the Tribunal found that it was not satisfied that the appellant held a well-founded fear of persecution.  The Tribunal affirmed the decision under review.

   THE FEDERAL MAGISTRATES COURT

9. On 24 March 2010, the appellant brought an application for judicial review of the Tribunal’s decision.

10. The appellant in his amended application for review dated 18 June 2010, relied upon one ground of review.  The ground of review stated:

    1.The second respondent committed jurisdictional error by failing to comply with mandatory provisions of the Act, being Division 4 of Part 7 of the Act and in particular ss 425 and 426A.

    Particulars:

    (a)the [appellant] alleges that:

    •Throughout the time he had an appeal before the Second Respondent he resided at [an address in Auburn, New South Wales].

    •In about January 2010 the [appellant’s] mail was redirected to [a PO Box address in Pendle Hill, New South Wales, 2145] by Imran Khan.  Imran Khan redirected the [appellant’s] mail without his knowledge or consent.

    •At no time did the [appellant] complete or sign a form issued by Australia Post requesting that or authorising his mail to be redirected.

    •At some time after 25 February 2010 and before 9 March 2010 Imran Khan delivered to the [appellant] by hand correspondence from the Second Respondent, being both an Invitation to Appear Before the Tribunal dated 28 January 2010 and Notification of Decision dated 25 February 2010.

    •The [appellant] did not receive the Second Respondent’s Invitation to Appear Before the Tribunal until after the Tribunal had made its decision which is the subject of this appeal.

    (b)The Second Respondent acted on the assumption that the [appellant] had received its Invitation to Appear Before the Tribunal prior to 25 February 2010.  On account of the fraud or misconduct of a third party the Second Respondent inadvertently failed to discharge its statutory duty.  By consequence the Second Respondent’s decision is no decision at all in law.  The [appellant] relies on the authority of SZFDE v Minister for Immigration and Citizenship and Refugee Review Tribunal [2007] HCA 35 2 August 2007.

    (c)The Tribunal’s decision was fundamentally influenced by not receiving evidence from the applicant at hearing.  At paragraphs 39, 40, 42, 44, 46, 48, 52, 54, 56, 58 and 61 of the Tribunal’s reasons for decision the Tribunal mentions the negative impact on its decision of not having had the opportunity to obtain further information for the [appellant] at a hearing.

11. The appellant gave evidence at the hearing of the judicial review application before the Federal Magistrate.  He was the only witness.  Significantly, Mr Imran Khan, whom the appellant described as a friend of his, did not give evidence.

12. The Federal Magistrate found that there was no conduct of a third party in this case, of the nature of the fraudulent conduct considered in the High Court decision in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 180 (SZFDE). The Federal Magistrate found that, even accepting that Mr Khan made the mail redirection order referred to by the appellant, there was no evidence before the Court that Mr Khan made that redirection order for a “fraudulent” reason. The Federal Magistrate stated at [10]‑[11]:

    10.Certainly the applicant has not given any indication as to what was fraudulent about it or how it was fraudulent.  Indeed, he said to me in response to a direct question on whether Mr Khan made the redirection order deliberately to avoid documents such as this getting to the applicant “that he could not say that.”  At [53] in SZFDE the High Court says:

    The significance of the outcome in this appeal should not be misunderstood.  The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of reviews and the place therein of the ss 425 and 426A.  In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.  The outcome in the present appeal stands apart from and above such considerations.

    …

    11.Accepting, for the purposes only of this part of the decision that the [appellant] did not receive the documentation, and that it was Mr Khan and not the [appellant] who ordered the redirection, and that the [appellant] was so ignorant of the redirection that he did not go along to the post office to collect his mail, it can still not be said that this was anything more than another mishap, albeit through no fault of the [appellant], but certainly not one that was so redolent of fraud that it should vitiate the Tribunal’s decision.  (Footnote omitted.)

13. In any case, the Federal Magistrate was not satisfied, on the balance of probabilities, that the appellant did not receive the documents in question.  In this regard, the Federal Magistrate noted that it was clear that the appellant received the Tribunal’s letter dated 15 January 2010, which was sent to his address is Auburn, and which acknowledged his application to the Tribunal.  The Federal Magistrate stated in his reasons for decision:

    12.…He gave some evidence and was cross-examined about this but the evidence that he gave and the answers to cross-examination were so confused that they did not convince me again, on the balance of probabilities, that this letter had come to him later than 25 February or that it was only after 25 February (that being the date of the Tribunal hearing) that he was aware of the post office box.  If the applicant was aware, as he may well have been, of the post office box then it was no one’s fault but his that he did not regularly check it and obtain the Tribunal’s hearing invitation.

    13.Likewise, I have only the applicant’s evidence that it was Mr Khan and not him who called for there direction of the mail to the post office box.  He was questioned both by myself and by Ms Rayment, who appears for the Minister, as to what occurred after he allegedly first found out about the post office box and whether he had obtained any documentation from the post office indicating that he had no part in the setting up of this redirection.  He said that he went to the post office immediately and cancelled the redirection so far as he was concerned but he did not give any satisfactory response to questions about why he had not obtained from the post office some documentation that might have gone to corroborating his evidence that it was not he who had arranged for the post office box to be created.  Likewise, there was no evidence from Mr Khan who the applicant says was a friend of his and who lived with him for some time.

14. The Federal Magistrate went on to find that the Tribunal had, therefore, complied with the statutory requirements with respect to the sending of an invitation to a Tribunal hearing, such as to invoke the operation of s 426A of the Act.

15. Furthermore, the Federal Magistrate found that having read the Tribunal’s reasons for decision as a whole, the Tribunal could not be impugned for wrongful utilisation of the procedures provided under s 426A of the Act.

16. The Federal Magistrate dismissed the application for review.

    THE APPEAL

17. The appellant filed a notice of appeal in this Court on 27 July 2010, which contained three grounds of appeal.  These grounds made the following complaints:

    1.The Federal Magistrate failed to find that the Tribunal committed jurisdictional error by failing to comply with mandatory provisions of the Act being Div 4 of Pt 7 of the Act and “in particular s 424 and 426A”.  I have treated the reference to s 424 as a typographical error and acted on the basis that the reference was intended by the draftsperson to be s 425.

    2.The Federal Magistrate dismissed the case without considering the legal and factual errors contained in the decision of the Tribunal.

    3.The Federal Magistrate failed to find that the Tribunal’s decision was unjust and was made without taking into account the full gravity of the appellant’s circumstances and consequences.

18. At the hearing before me, the appellant again stated that he had not received the letter from the Tribunal dated 28 January 2010, inviting him to a hearing.  The appellant did not, however, advance any further arguments in support of the grounds of appeal.  He advised the Court that he had not drafted the notice of appeal and could, therefore, not expand upon the claims made in the grounds of the appeal.

19. Ground one of the grounds of appeal addresses the ground of review before the Federal Magistrate.  In my view, for the reasons which he gave, the Federal Magistrate did not err in coming to the view that, even accepting that a redirection order had been made by Mr Khan, there was no basis on the evidence before the Court, upon which the conduct could be categorised as fraudulent, in the sense referred to in SZFDE.

20. Further, insofar as the Federal Magistrate found he was not satisfied on the balance of probabilities that the appellant did not receive the documents, no argument was advanced by the appellant as to why that finding should be impugned.  In my view, for the reasons which he gave, the finding was open to the Federal Magistrate.

21. Accordingly, the Federal Magistrate did not err in finding that the Tribunal was entitled to act pursuant to s 426A of the Act.

22. Grounds two and three of the grounds of appeal do not appear to relate to any ground of review which was before the Federal Magistrate.  Further, as mentioned, at the hearing, the appellant was not able to provide any particularity as to the appeal grounds.  Accordingly, these grounds are dismissed.  However, insofar as the grounds may be directed to impugning the reasons for the decision of the Tribunal to affirm the decision of the delegate, on the grounds of the absence of particularity in the appellant’s claim, it was, in my view, open to the Tribunal to come to that view; and, in doing so, the Tribunal did not fall into jurisdictional error.

23. The appeal is, therefore, dismissed.

I certify that the preceding twenty‑three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        12 November 2010