SZRKT v Minister for Immigration
[2016] FCCA 3106
•2 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRKT v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3106 |
| Catchwords: MIGRATION – Application for review of Tribunal decision – whether Tribunal invitation to hearing compliant with the Migration Act 1958 (Cth) (“the Act”) – whether Tribunal failed to comply with Act in relation to information – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 411, 412, 424, 424A, 424AA, 424B, 425A, 441A, 476 Migration Regulations 1994 (Cth), reg.4.35D |
| Cases cited: SZRKT v Minister for Immigration & Anor [2012] FMCA 950 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 302 ALR 572 SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405 |
| Applicant: | SZRKT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1797 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 31 May 2016 |
| Date of Last Submission: | 13 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 2 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Chia |
| Counsel for the Respondents: | Mr M J Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 30 June 2014 and amended on 16 March 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,471.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1797 of 2014
| SZRKT |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 30 June 2014 and amended on 16 March 2016, seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 2 June 2014, which affirmed the decision of the delegate of the Minister to refuse a protection (Class XA) visa to the applicant.
Evidence Before the Court
In evidence before the Court is the following:
a)A bundle of relevant documents, filed by the Minister and tendered by the applicant (“the Court Book” – “CB”, “AE1”).
b)A supplementary bundle of relevant documents, filed and tendered by the Minister (“the supplementary Court Book” – “SCB”, “RE1”).
c)The affidavit of Gail Margaret Hargreaves, retired, made on 8 July 2014 annexing a transcript of the applicant’s hearing before the Tribunal on 13 May 2014 (“T”).
d)The affidavit of the applicant made on 31 October 2014 with a number of annexures.
e)The affidavit of the applicant made on 10 March 2016 with a number of annexures.
Background
The applicant is a citizen of Pakistan who arrived in Australia on 17 March 2011 on a student visa (CB 13). He applied for a protection visa on 29 April 2011 (CB 1 to CB 32). The applicant submitted a “statement” in support of his application on 12 May 2011 and attached a number of items of country information in the form of media articles (CB 34 to CB 62). He appointed a registered migration agent on 17 May 2011 to represent him (CB 63).
The applicant’s written submissions filed with the Court on 17 May 2016, have fairly, with reference to the material in the Court Book, summarised the applicant’s claims to fear harm as initially made ([4] – [5] of the applicant’s written submissions):
“[4] The applicant’s protection visa application referred to a detailed statement of his claims for protection (CB17-20), which was later provided to the Tribunal on 13 May 2011. In his statement dated 12 May 2011 (CB38-43), the applicant identifies himself as being a Pakistani Muslim and states that his father had come to be known by two brothers Maulana Abdul Aziz and Abdul Rashid Ghazi, who were associated with the Lal Masjid (the Red Mosque). The applicant claimed that the brothers would come to his home and pressure him to learn the Quran and become a jihadist and tried to recruit him to join the madrassa (Islamic seminary) run by the Lal Masjid.
[5] The statement continues that, around 2007, Abdul Rashid Ghazi was killed and Maulana Abdul Aziz was arrested when government forces attacked the Lal Masjid. The applicant was also detained as the police believed him to be a student of the madrassa at the Lal Masjid and, whilst in detention, he came across militants who were trying to brainwash him into becoming a jihadist. The militants said that they would meet him once they were released and he feared he could be killed if he exposed or defied them. Further, after his release, Maulana Abdul Aziz once again started canvassing locals to send their children to the Lal Masjid and visited his home and indicated that he wanted to recruit him to his terrorist group. The applicant also stated that prior to leaving for Australia, he was taken to Kyber Pakhtunkhwa and introduced to senior militants, who told him that he could have a couple of months to spend with his parents and then he would have to go to their camps permanently and he would not see them again. The militants then continued to visit him to check on him and waited for him outside.”
The delegate of the Minister refused the application for the protection visa on 5 July 2011 (CB 68 to CB 78).
The applicant applied for review to the Tribunal on 1 August 2011 (SCB 1 to SCB 4). The Tribunal, as differently constituted, affirmed the delegate’s decision on 21 March 2012 (SCB 20 to SCB 37). The Federal Court dismissed an appeal by the Minister from writs issued by this Court remitting the matter to the Tribunal for reconsideration (see SZRKT v Minister for Immigration & Anor [2012] FMCA 950 and Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 302 ALR 572).
By letter dated 25 October 2013, the Tribunal notified the applicant that the matter had been remitted to it for reconsideration (CB 98 to CB 100). It noted that his matter would be “re-allocated” and that the reconstituted Tribunal “may do one or more of the following” including “invite [the applicant] to attend a hearing” (CB 98). Further, it noted that the Tribunal would “send all future communications to the address at the top of this letter, unless you advise us otherwise”. This letter was sent to an address on King Georges Road, Wiley Park, New South Wales (“NSW”).
By letter dated 22 January 2014, sent to the address on King Georges Road, Wiley Park, NSW, the applicant was invited to attend a hearing before the Tribunal on 24 February 2014 (CB 100 to CB 101). By letter dated 23 January 2014, also sent to the address on King Georges Road, Wiley Park, NSW, the applicant was informed that the hearing would be postponed and that a new hearing date would be provided to him (CB 102).
By letter dated 11 February 2014, also sent to the address on King Georges Road, Wiley Park, NSW, the applicant was invited to attend a hearing before the Tribunal on 13 May 2014 (CB 103 to CB 104).
A “Case Note” in the Court Book made by a Tribunal officer on 5 May 2014 indicates that a Tribunal officer “phoned the review applicant (RA), as there has not been a response to the invitation to hearing letter dated 11/02/2014”. The Tribunal officer then recorded the following in the “Case Note” (CB 105):
“The RA said he did not receive the hearing invitation, and provided me with his current address at Wiley Park, NSW which is not the same address as was previously provided to the Tribunal. He said he informed DIBP of his new address, but did not notify the Tribunal.
I informed him of his forthcoming hearing details, and he verbally confirmed his attendance. He said he will attend the Tribunal reception counter within a couple of days, and will notify his current residential/postal addresses, and will complete a duplicate response to hearing invitation form.
I informed him that an Urdu interpreter will be in attendance at hearing.”
[Emphasis added (see further below).]
The applicant submitted a “Change of Contact Details” form “by hand” on 6 May 2014, notifying the Tribunal that his address was now one on Cornelia St, Wiley Park. Further, he submitted a “Response to Hearing Invitation” form “by hand” on the same date (CB 106 to CB 109).
The applicant attended at a hearing before the Tribunal on 13 May 2014 (CB 110 to CB 112).
The Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa on 2 June 2014 (CB 119 to CB 178). Relevant to the application before the Court, the Tribunal had before it the “Department’s protection visa file relating to the applicant, the applicant’s student visa file and the first Tribunal file” ([6] at CB 120).
The Tribunal noted that at the hearing before it, the applicant claimed that he had “travelled to the [United Kingdom (“UK”)] and returned” to Pakistan after a month at the end of 2006. The Tribunal stated at the hearing that it had “checked” the applicant’s protection visa application, and on that form he had not indicated that he had previously travelled outside of Pakistan. The applicant said he had “relied on his migration agent” ([23] – [26] at CB 131).
The Tribunal referred to the applicant’s student visa application in which he had “failed to answer the question about his previous travel”, and informed the applicant that it might consider this when making findings as to the credibility of his claims. The applicant stated that that had been the “responsibility of the agent in Pakistan” ([27] at CB 131).
The Tribunal found that when it discussed the travel to the UK with the applicant at the hearing, the applicant provided “vague and inconsistent responses” ([30] at CB 132). It did not accept the applicant’s explanation for not declaring his previous travel on his student visa application as credible ([31] at CB 132). However, it did not make an adverse credibility finding on this point alone. The Tribunal considered the travel issue cumulatively with “addition[al] credibility matters” ([33] at CB 132).
The Tribunal then went on to make a number of adverse credibility findings in relation to the applicant’s claims about his father’s involvement with the Red Mosque ([34] at CB 132 to [46] at CB 134), the applicant’s claim that there had been attempts to recruit him ([47] at CB 134 to [71] at CB 138), and his claims that there had been continued visits to his family in Pakistan after he left in 2011 by a person from whom he claimed to fear harm ([72] at CB 138 to [82] at CB 139).
In all, the Tribunal found that the applicant was not a credible witness ([84] at CB 139). The Tribunal found that he would not face a real risk of serious harm on return to Pakistan. The Tribunal separately considered the applicant’s claims with reference to the complementary protection criterion (s.36(2)(aa) of the Act) ([98] at CB 142 to [103] at CB 143). With reference to its earlier credibility findings, it found that he would not face significant harm on return to Pakistan.
Application Before the Court
The amended application before the Court is in the following terms:
“1. The second respondent (‘Tribunal’) failed to comply with the mandatory requirement of section 424A of the Migration Act 1958 (‘Act’) to give written information and invitation in relation to ‘the information in the applicant’s student visa application that he had failed to answer the question about previous travel’ (‘Previous Travel Information’).
Particulars
The Previous Travel Information was part of the Tribunal's reasons for affirming the decision under review.
The Tribunal did not issue a written invitation under section 424A in relation to the Previous Travel Information but, instead, purported to give the information and invitation orally at the hearing under section 424AA of the Act.
The Tribunal did not comply with all of the mandatory requirements set out in paragraph 424AA(b) of the Act.
2. Further or in the alternative, the Tribunal failed to comply with the requirements of section 425A (read with section 441A) of the Act.
3. Further or in the alternative to 1 and 2, the Tribunal failed to comply with the requirements of section 424 (read with section 441A) or section 424B of the Act in relation to information the Tribunal got regarding a Five Country Check undertaken in relation to the applicant.
Consideration
Ground one asserts that the Tribunal failed to comply with its obligation in contained s.424A of the Act. This alleged failure was explained as follows.
The applicant had made an application for a student visa for Australia in December 2010. The applicant completed and lodged the relevant application forms (see annexure “APP-1” to the applicant’s affidavit of 31 October 2014).
One of the forms contained the following question (see [26] at page 31 of annexure “APP-1” of the applicant’s affidavit of 31 October 2014):
“Give details of all visits (including short stays) to countries outside Australia for the last 10 years…”
No details were given in the completed form. In its decision record, the Tribunal made reference to the fact that the applicant did not provide any answers to this question ([27] at CB 131 to [33] at CB 132). The applicant now submits this “information”, which for ease, was described as the “previous travel information”, was part of the Tribunal’s reasons for affirming the delegate’s decision. This was said to be the case because, with particular reference to [31] and [32] (at CB 132) of the Tribunal’s decision, this was one of several factors which led to the Tribunal’s adverse finding as to the applicant’s credibility. This in turn was central to it not reaching the requisite level of satisfaction such that the protection visa must be granted.
The applicant also submitted that while it appeared that the Tribunal made some attempt to satisfy the obligation in s.424A(1) of the Act, by the use of s.424AA of the Act (see [27] at CB 131 and T20), the Tribunal did not advise the applicant that he may seek additional time to comment on, or respond to, the information as required by s.424AA(1)(b) of the Act. The consequence of this was that the Tribunal did not, for the purposes of s.424A(2A) of the Act, “give particulars of [the] information to the applicant … and invite the applicant to comment on or respond … under s.424AA” of the Act. In the absence of any written invitation to do so, pursuant to s.424A(1) of the Act, the Tribunal committed jurisdictional error.
Before the Court, the applicant’s position was that the Tribunal, in its decision record, was not referring to the absence of information but the existence of documentary material that established that the applicant had not disclosed in his student visa application form, his travel to the UK in 2006. In that light, the previous travel information was part of the reason for finding adversely regarding the applicant’s credibility, and therefore a part of the reason for affirming the delegate’s decision (see SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405 (“SZLIQ”) and SZNKO v Minister for Immigration and Citizenship [2010] FCA 297; (2010) 184 FCR 505 (“SZNKO”)).
The Minister agreed that the fact that the applicant did not provide any answers to this question in the student visa application form was a matter that affected the Tribunal’s assessment of the applicant’s credibility.
However, in short, the Minister’s argument was that s.424A of the Act was not engaged because the material did not contain in its terms a “rejection, denial or undermining” of the applicant’s claims to be a refugee. The Minister relied on SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”) at [17] and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 (“SZLFX”) at [22], for the proposition that for s.424A of the Act to be engaged, the material in question must contain such a “rejection, denial or undermining” of the applicant’s claims. As such, what appears at page 31 of the student visa application form was not information for the purposes of s.424A of the Act.
To the extent that the applicant’s argument relies on the use to which the Tribunal put the “material” at page 31, that is, as part of the adverse credibility finding, it is clear that the Tribunal’s subjective appraisals of the applicant’s evidence, its adverse credibility findings, are of themselves not information for the purposes of s.424A or, consequently, s.424AA of the Act (SZBYR and SZLFX).
In his submissions, the applicant relies on SZLIQ and SZNKO (“approved” by the Full Federal Court in SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90) for the proposition that the previous travel information was “a part of the reason” for affirming the delegate’s decision, because the Tribunal considered this relevant to its finding as to the applicant’s credibility. The applicant says all these cases were decided after SZBYR (see footnote 17 of the applicant’s written submissions).
I agree with the Minister that, in the current circumstances, these authorities do not assist the applicant. In my respectful view, there was no dispute in those authorities that the relevant material, in its terms, was “information” for the purposes of s.424A of the Act.
In SZLIQ, in my respectful view, it is clear at [18] that the question was whether the information “about growing vegetables in Australia and Australian home gardens by Australian home gardeners” fell within the exception in s.424A(3)(a) from the obligation in s.424A(1) of the Act. That is, the matter proceeded on the basis that the information was information for the purpose of s.424A(1) of the Act.
In SZNKO, the Court did refer to both SZBYR and SZLFX (see at [7]). However, again the matter proceeded on the basis that the material on which the Tribunal relied was “information” for the purposes of s.424A(1) of the Act (see SZNKO at [19]).
In the current case, the Tribunal made reference in its decision record to (see at CB 131.7):
“424AA (Student Visa: Failure to answer question 26 on previous travel)”.
The parties made supplementary written submissions on the consequence, if any, of the Tribunal’s apparent use of s.424AA of the Act, and the relevance of such judgements as SZTNL v Minister for Immigration and Border Protection [2015] FCA 463; (2015) 231 FCR 204 (“SZTNL”) to the current circumstances.
The Court thanks the applicant’s counsel for his careful and considered submissions. However, even though it was submitted that what the Federal Court relevantly said in SZTNL was obiter dicta, it remains that an appellate Court stated that the Tribunal’s conduct in that case in sending a letter pursuant to s.424A(1) of the Act was not determinative of the question as to whether the material referred to in the letter was information for the purposes of s.424A of the Act.
Similarly, in the current case, the Tribunal’s purported use of s.424AA of the Act, and to the extent that this implies that it may have considered the previous travel information to be information for the purposes of s.424A of the Act, is not determinative of that question.
I agree with the Minister that what is determinative is that the previous travel information did not contain in its terms a “rejection, denial or undermining” of the applicant’s claims. It was, therefore, not information for the purposes of s.424A(1) of the Act. Ground one is not made out.
Ground two asserts that the Tribunal fell into legal error because it failed to comply with the requirements of s.425A, when read with s.441A of the Act.
Section 425A of the Act was, at the relevant time, in the following terms:
“(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:
(a) except where paragraph (b) applies -- by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention -- by a method prescribed for the purposes of giving documents to such a person.
(3) The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section 426A.”
Section 441A of the Act was, at the relevant time, in the following terms:
“Coverage of section
(1) For the purposes of provisions of this Part or the regulations that:
(a) require or permit the Tribunal to give a document to a person (the recipient); and
(b) state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
…
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of a member or an officer of the Tribunal dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or other prepaid means; and
(c) to:
(i) the last address for service provided to the Tribunal by the recipient in connection with the review; or
(ii) the last residential or business address provided to the Tribunal by the recipient in connection with the review; or…”
Both parties in submissions referred to reg.4.35D(3) of the Migration Regulations 1994 (Cth) (“the Regulations”), which, at the relevant time, was in the following terms:
“Prescribed periods -- notice to appear before Tribunal
…
(3) If the invitation relates to any other application for review of a decision, the period of notice:
(a) commences when the person receives notice of the invitation to appear before the Tribunal; or
(b) ends at the end of:
(i) 14 days after the day the person receives notice of the invitation to appear before the Tribunal; or
(ii) if the person agrees, in writing, to a shorter period of not less than 1 working day -- the shorter period.”
In essence, the applicant’s argument is that the Tribunal’s letter of invitation to hearing dated 11 February 2014 (see CB 103 to CB 104) was not sent to the last address for service provided to the Tribunal by the applicant in connection with the review.
The relevant background can be derived from the evidence before the Court:
1)The applicant applied for review to the Tribunal on 1 August 2011. He provided as his address for service, an address on Amy Street, Campsie, NSW (SCB 3).
2)On 6 October 2011, and confirmed on 13 October 2011, he provided his address for service an address on King Georges Road, Wiley Park, NSW (SCB 3 and SCB 7).
3)On 15 December 2011, the applicant was invited, by letter, to attend the hearing scheduled for 25 January 2012. This was sent to the address on King Georges Road, Wiley Park, NSW (SCB 13).
4)On 12 March 2012, the Tribunal affirmed the delegate’s decision. The notification of decision was sent to the address on King Georges Road, Wiley Park, NSW (SCB 19).
5)It can be reasonably inferred that the applicant then sought judicial review (see SZRKT at first instance and SZRKT (Federal Court)). The Federal Court remitted the application for review to the Tribunal for reconsideration in October 2013 (see CB 98).
6)On, or about, 4 February 2013, the applicant served a Notice of Address for Service on Minter Ellison lawyers, who had carriage of the matter on behalf of the Minister and the Tribunal. That notice informed that the applicant’s address had changed to an address on Cornelia Street, Wiley Park, NSW (see [6] of the applicant’s affidavit of 10 March 2016 and annexure “APP – 4” to the affidavit). The Notice of Address for Servicewas a form approved by the then Chief Federal Magistrate of the Federal Magistrates Court of Australia, and filed in the Federal Court Registry on 4 February 2013.
7)On 12 April 2013, the Federal Court set aside the Tribunal’s decision (SZRKT (Federal Court)), and the matter was remitted to the Tribunal for reconsideration.
8)On 22 January 2014, the Tribunal wrote to the applicant inviting him to a hearing scheduled for 24 February 2014. This was sent to the applicant at the address on King Georges Road, Wiley Park, NSW (CB 100).
9)On 23 January 2014, the Tribunal wrote to the applicant again by letter sent to the address on King Georges Road, Wiley Park, NSW, notifying that the hearing was postponed to a date to be advised to him (CB 102).
10)On 11 February 2014, the Tribunal wrote to the applicant inviting him to a hearing scheduled for 13 May 2014. This also was sent to the address on King Georges Road, Wiley Park, NSW (CB 103).
11)On 5 May 2014, a Tribunal officer telephoned the applicant because there had been no response to the invitation to hearing (see the “Case Note” at CB 105).
12)The terms of the subsequent, and relevant, “Case Note” is set out above at [10].
13)On 6 May 2014, the applicant provided to the Tribunal his “new” residential address. This was the same address as that given to Minter Ellison (CB 106).
14)On the same day, the applicant provided a “Response to Hearing Invitation” form to the Tribunal in which he indicated that he would take part in the hearing scheduled for 13 May 2014 (CB 108).
15)The applicant attended at the hearing on that date, and gave evidence with the assistance of an interpreter in the Urdu language (CB 110 and [5] at CB 120 and [15] at CB 129 to [63] at CB 137).
Two matters are of immediate note. First, there is no dispute from the Minister, and the evidence supports the proposition that Minter Ellison received the applicant’s notification in February 2013 (see [7] of the applicant’s affidavit of 10 March 2016, and annexure “APP – 5” to the affidavit).
Second, there is no evidence from the applicant now to challenge or dispute what is recorded in the “Case Note” reproduced at [10] above and see [42](12) above.
The applicant’s ground proposes that the Tribunal fell into legal error because the Tribunal sent its letter of 11 February 2014, inviting the applicant to the hearing to an address which was not the last address for service, provided by the applicant to the Tribunal. That is, the address provided by the applicant to Minter Ellison (the address on Cornelia Street, Wiley Park NSW).
Section 441A(4) of the Act provides that the Tribunal may send (as one of the methods it may utilise) such correspondence to the last address service or the last residential or business address “provided to the Tribunal by the recipient in connection to the review” (s.441A(4)(i) and (ii) of the Act).
The applicant did send a Notice of Address for Service to Minter Ellison, who received it in February 2013. At that time, it may be accepted that Minter Ellison was certainly acting for the Minister and, notwithstanding a Submitting Notice, also for the Tribunal in judicial review proceedings concerning the applicant, the Minister and the Tribunal’s decision, dated 21 March 2012 (SCB 20 to SCB 37).
The question however, is whether in giving this notice, the applicant provided it to the Tribunal in connection to the review. I agree with the Minister that he did not. I note that the applicant himself is reported to have said, on 5 May 2014, that he did not notify the Tribunal of his change of address (see CB 105 and [10] above).
At that time, that is, on or about 4 February 2013, there was no Tribunal review on foot. The Tribunal had made a decision on the review on 21 March 2012. That decision was notified to the applicant by post sent to the last residential address provided by him for the purposes of receiving correspondence in connection with the Tribunal review. It is of note, that provision to Minter Ellison of the applicant’s “new” address did not occur until after this date, 4 February 2013.
Once the letter of notification was dispatched and became beyond recall, the review of the delegate’s decision by the Tribunal was, at that time, at an end (SZQOY v Minister for Immigration & Anor [2012] FMCA 289 and as affirmed on appeal in Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131).
When regard is had to the relevant statutory scheme there is a clear difference between the administrative review of the delegate’s decision, where jurisdiction is given to the Tribunal, and judicial review of the Tribunal’s decision, where jurisdiction is given to the Court (see Part 7 of the Act and in particular ss.411 and 412, and Part 8, in particular, s.476 of the Act).
The applicant submits that the effect of the writs subsequently issued by the Federal Court in relation to the “first” Tribunal decision meant that the Tribunal’s “first” decision was set aside, and rather than there being a “new” Tribunal review, the review that led to the “first” Tribunal decision continued (see SZEPZv Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 (“SZEPZ”) at [39]).
The effect of what was said in SZEPZ on the current case, is that once the Court found that the “first” Tribunal decision was “invalid” the “first” Tribunal decision was not a decision at all. That is obviously accepted.
However, in addition, for current purposes, attention must be directed to the language of the relevant legislation. Section 441A(4) of the Act provides that the Tribunal’s correspondence may be sent by post to the last address for service or residential address provided by the applicant to the Tribunal “in connection to the review”.
It is not necessary to consider whether, at the time the applicant provided the Cornelia Street address to Minter Ellison, they were acting for the Tribunal, the Minister, or both. That is because what the applicant provided to Minter Ellison at that time was in connection to the application for judicial review, not in connection with the review by the Tribunal.
The words “in connection with the review” as they appear in s.441A of the Act, are directed to the review of the delegate’s decision by the Tribunal, not the review of the Tribunal’s decision by this Court, let alone an appeal of this Court’s judgment by the Federal Court.
A second and separate reason for finding against the applicant’s second ground is that the applicant, in any event, suffered no “practical injustice” in the circumstances of this case.
As the applicant recognised in his submissions to the Court, while s.425A(2) of the Act requires the Tribunal to give notice of the hearing by any one of the methods in s.441A of the Act, in Minister for Immigration and Citizenship v SZIZO [2009] HCA 37 (“SZIZO”) the High Court qualified that proposition when it found that there was no jurisdictional error where the failure to comply with s.441A of the Act does not result in a failure to receive timely, and effective, notice of the hearing such that there has been no loss of opportunity for the applicant to present their case (SZIZO at [35] - [36] and see [37] of the applicant’s written submissions).
In the current case, while the applicant says he did not receive the notice by post, or any other notice by one of the methods in s.441A of the Act, he was told of the Tribunal hearing scheduled for 13 May 2014, on 5 May 2014. He not only responded with a notice that he would attend, he in fact attended, and gave his evidence.
On the evidence before the Court, and in the circumstances, the applicant made no objection, nor raised any difficulty in attending on that date. There is nothing to show that he told the Tribunal that he was unable to participate in the hearing in any meaningful way or that he was otherwise prevented from doing so (Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 and Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575).
His argument before the Court now is, at its highest, that he was not provided with the statutory period of notice. In the absence of anything further, that is not sufficient to say he suffered any injustice. In all, ground two is not made out.
Ground three asserts that the Tribunal failed to comply with the requirements of s.424 of the Act, read with s.441A or s.424B of the Act, in relation to what is described as the “Five Country Check” undertaken in relation to the applicant.
Section 424 of the Act was, at the relevant time, in the following terms:
“Tribunal may seek 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, either orally (including by telephone) or in writing, a person to give information.
(3) A written invitation under subsection (2) 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 of the Act was, at the relevant time, in the following terms:
“Requirements for written invitation etc.
(1) If a person is:
(a) invited in writing under section 424 to give information; or
(b) invited under section 424A to comment on or respond to information; the invitation is to specify the way in which the 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 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 background to this ground is as follows. On 13 May 2014 (the day of the “second” Tribunal hearing) at 2:30pm, a Tribunal officer (Mr Terence Smith) sent an email to Ms Ngoc Nguyen in the following terms (see annexure “APP-6” at page 16 of the affidavit of the applicant, affirmed 10 March 2016):
“An RRT Tribunal Member wishes to have a check of overseas travel of a current review applicant. The RA has disclosed at hearing he travelled from Islamabad to the UK in 2006 and possible other countries, [over] a period of months, before returning to Islamabad.
I believe this is likely to fall into the category of a Five Country Check.
Can you please assist me with a DIBP email address and/or the name of DIBP contact person, with whom I can discuss, and obtain information about how to request a Five Country Check?”
It appears Ms Nguyen was an officer of the Minister’s Department. Her response was (see annexure “APP-6” at page 16 of the affidavit of the applicant, affirmed 10 March 2016):
“Could you please provide the client’s details so I can check if the Five Country check results are available.”
On 14 May 2014 at 11:38am Mr Smith sent the following (see annexure “APP-6” at page 14 of the affidavit of the applicant, affirmed 10 March 2016):
“As discussed, the details of the RRT primary review applicant are as follows: …”
Ms Nguyen responded with what was said to be the results of the “Five Country Check” (see annexure “APP-6” at page 14 of the affidavit of the applicant, affirmed 10 March 2016).
The applicant’s argument now is that by sending the emails regarding the “Five Country Check”, the Tribunal officer was inviting, in writing, a person to give information under s.424(2) of the Act. Such an invitation was required by s.424(3)(a) of the Act to be given in compliance with the requirements of s.424B of the Act, and by one of the methods in s.441A of the Act.
However, the Tribunal’s invitation did not specify the way in which the response may be given under s.424B(1) of the Act. Nor did it specify a period for response under s.424B(2). Further, the email was not sent to an email address “provided to the Tribunal by the recipient in connection with the review” under s.441A(5) of the Act.
The applicant’s assertion of legal error is that the language of the relevant provisions is mandatory. It compels the Tribunal to take certain steps in the conduct of the review so as to accord procedural fairness to the applicant and discharge its statutory function (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294). Therefore, the applicant submits that the Tribunal’s failure amounted to jurisdictional error.
The Minister submitted that there was no breach of s.424 of the Act because it was, in the circumstances presented, not engaged.
The Minister relied on SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 (“SZLPO”). It is of note that the version of s.424 of the Act considered by the Full Federal Court in SZLPO, is slightly different to the version relevant in the current proceedings.
However, the Minister submitted that notwithstanding this distinction there are three findings made by the Full Federal Court relevant to the current circumstances, and applicable to the relevant version of s.424 of the Act.
First, that the word “person” as it appears in s.424 of the Act means only a “natural person”, and “not corporations or polities or government departments” (SZLPO at [103] - [108]).
Second, s.424(2) of the Act relates to a person whose identity is known at the time of extending the invitation (SZLPO at [109]).
Third, s.424(2) of the Act does not apply to an invitation to a person to supply a document to the Tribunal (SZLPO at [110]). I also note in this regard, that the reference to “additional information” in the version of s.424 of the Act before the Full Federal Court does not appear in the version relevant to the current matter.
The applicant’s response to this was that SZLPO must be understood in light of certain “qualifications”. First, the distinction between “additional information” and “information” in the “two” versions of s.424 of the Act.
However, the applicant did not satisfactorily explain in his submissions how this would prevent what the Full Federal Court reasoned, and found, in SZLPO, applying to the current version of s.424 of the Act, and the circumstances of this case.
Second, that, although the Full Federal Court set out a number of general principles, not all were part of the reasons for the disposition of the appeal. Some of the principles were said to be “obiter dicta”. In particular, that a “person” for the purposes of s.424 of the Act needs to be a natural person.
It is not necessary to consider any differences between “ratio decidendi” and “obiter dicta”. In my respectful view, the Full Federal Court’s expressed principles should, in the absence of any argument that they cannot apply, be applied to the current circumstances.
In this light, I do not agree with the applicant that the Tribunal’s email of 13 May 2014 was an invitation for information sent to a person. The email, as the Minister submits, was not directed to a person whose identity was known at the time of the initial email. It was an inquiry to ascertain the appropriate contact point in the Minister’s department.
Further, even if it had been directed to Ms Nguyen (obviously a person), the essence of what was ultimately requested (the “Five Country Check” report) was directed to a government department. What was ultimately asked of Ms Nguyen, was asked of her not in some private capacity, but as an officer, that is a functionary, of a government department.
Even further, as the Minister submits, the Court in SZLPO noted that it would be appropriate to withhold relief in circumstances where the visa applicant suffered no practical injustice as a result of a “technical” breach of s.424 of the Act.
The applicant’s position before the Court was that there was particular practical injustice to the applicant. However, having stated his position to the Court, his explanation in support was not satisfactory.
In essence, the complaint was that the request was made at such a level of informality, without any indication as to the length of time available to conduct a “proper” search. The applicant’s submission that it may have been possible that a “proper”, or more timely search may have revealed material corroborative of the applicant’s claim, remains in the realm of speculation.
It is to be remembered that the “Five Country Check” as was made plain in Mr Smith’s email of 13 May 2014, is “a check of overseas travel” of the applicant. If there was material to corroborate the applicant’s claims there was nothing given in evidence by the applicant to the Court, or even submitted, to explain why he was not in a position to know of the facts of his own international travel.
Ultimately, in terms of practical injustice, which includes the matter of what the applicant did not say about his previous travel, was a relevant factor arising from his answer to the relevant question in the student visa application form. The “Five Country Check” played no part in the Tribunal’s reasons affirming the delegate’s decision. In all, ground three is not made out.
Conclusion
None of the grounds in the application reveal jurisdictional error. It is appropriate that the application to the Court be dismissed I will make an order accordingly.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 2 December 2016
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