NAWJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 54 (5 February 2004)

MIGRATION – whether invitation by Refugee Review Tribunal to give additional information was "received" by the applicant – whether invitation complied with the legislation

Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 424, 424C, 425, 441A, 441C

NAWJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1514 OF 2003

SACKVILLE J
SYDNEY
5 FEBRUARY 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1514 OF 2003

BETWEEN:	NAWJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	5 FEBRUARY 2004
WHERE MADE:	SYDNEY

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1514 OF 2003

BETWEEN:	NAWJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	5 FEBRUARY 2004
PLACE:	SYDNEY

1 This is an application pursuant to s 39B(1) of the Judiciary Act 1903 (Cth) seeking relief in respect of a decision of the Refugee Review Tribunal ("RRT") made on 8 August 2003, but handed down on 4 September 2003. The RRT affirmed a decision of a delegate of the respondent ("the Minister") not to grant a protection visa to the applicant.

2 The applicant has appeared in this Court without legal representation. The ground of the application is as follows:

3 The applicant was directed to file written submissions in advance of the hearing, but did not do so. The applicant was in Court when that direction was made. However, I also directed the Minister’s representatives to notify the applicant in writing of the direction. Unfortunately, it appears that this was not done. I do not think that the failure of the Minister’s representatives to comply with the direction has caused any injustice in this case, as the applicant was given an opportunity to put her submissions at the hearing. Nonetheless, I wish to emphasise that it is essential that the Minister’s representatives comply with directions given by the Court.

4 The applicant is a citizen of the People’s Republic of China ("PRC"). She arrived in Australia on 27 July 2002 on a visitor’s visa. On 9 August 2002, she lodged an application for a protection (Class XA) visa.

5 The application for a protection visa was accompanied by a two page typewritten statement. The applicant claimed that she had been brought up as a Christian in the PRC. She said that her parents had been punished at their workplaces for their Christian beliefs and had been forced to practice their religion at home secretly.

6 The applicant claimed that, influenced by her parents, she became a follower of Christianity when she grew up. She went to church regularly and confessed her sins. Her religion became a very significant part of her life.

7 The applicant said that in the 1980s churches destroyed during the "Great Cultural Revolution" were re-established and, to some extent, religious activities in the re-established churches were regarded as legal. However, only those churches abiding by the requirements of the Communist Party were permitted to register. Since many Christians did not feel comfortable with that arrangement, underground churches appeared. Nonetheless, the applicant said that she expected that further reforms would follow, leading to religious freedom. However, the practice of religion at home and in the underground churches led her "to trouble". Her managers and colleagues at work became indifferent to her. She lost opportunities for promotion and study abroad. Later, so she claimed, the police began to pay attention to her.

8 It was for that reason that the applicant said that she had come to Australia, "a country of freedom". She expressed fear that if she were to return to China, she would not be permitted to follow her religious beliefs and her safety would even be threatened.

9 The applicant provided no further detail in support of her application for a protection visa. Her application was refused by the delegate on 11 September 2002.

10 On 14 October 2002, the applicant applied to the RRT for a review of the delegate’s decision. The applicant’s statement as to why she disagreed with the delegate’s decision was as follows:

The application gave the applicant’s home address and a post office box number as her mailing address.

On 15 July 2003, the RRT wrote to the applicant at her mailing address seeking further information in support of her application. The letter, which presumably was written pursuant to s 424 of the Migration Act 1958 (Cth) ("Migration Act"), sought the following information:

The letter stated that the information was to be provided in writing and was to be received by the RRT by 7 August 2003, failing which the RRT might make a decision without further notice to the applicant. A copy of the letter was sent to the applicant at her nominated home address.

11 It appears that no further information was provided by the applicant to the RRT in support of her application for review of the delegate’s decision.

12 On 29 July 2003, the RRT wrote to the applicant at a different address ("the Parramatta address"). The letter stated that it had come to the RRT’s notice that the applicant may have changed her address to the Parramatta address. It asked her to notify the Tribunal in writing if the previous addresses she had provided were no longer current.

13 On the same date (29 July 2003) the RRT wrote to the applicant at her previously notified mailing address stating that it had come to the RRT’s attention that she may recently have appointed an "Authorised Recipient". The letter asked her to complete an enclosed form if she wished to appoint an Authorised Recipient to receive documents on her behalf. The letter stated that if the RRT had not heard from her by 14 August 2003, it would assume that she did not have an authorised recipient.

14 On 8 August 2003, the RRT received a letter from a migration agent. The letter stated that the agent had been the authorised recipient in respect of the application, but was no longer acting as the applicant’s recipient. The letter enclosed a change of address form, indicating that the applicant’s new address was the Parramatta address.

15 On 8 August 2003, the RRT wrote to the applicant at the Parramatta address advising that it had received her change of contact details on 8 August 2003.

16 On 13 August 2003, the RRT sent a letter to the applicant at her Parramatta address notifying her that the decision would be handed down on 4 September 2003.

17 On 29 August 2003, the RRT received a change of address form apparently signed by the applicant. This provided a new post office box address in Artarmon as her new mailing address. On the same date, the RRT wrote to the applicant at the Artarmon address stating that the new mailing address has been duly notified and the details updated on her records.

18 The RRT’s decision was handed down on 4 September 2003. The Reasons for Decision indicate that the decision itself had been made on 8 August 2003.

19 The RRT recorded that it had received no further information from the applicant in response to the letters sent on 15 July 2003 to the applicant’s residential and mailing addresses. It also noted that neither of the letters had been returned unclaimed.

20 The RRT pointed out that it was obliged to invite an applicant to appear before it to give evidence and present arguments (Migration Act, s 425(1)). However, this did not apply where an applicant had been invited under s 424 to give additional information and had not provided that information by the specified time. In those circumstances, the applicant was not entitled to appear before the RRT (ss 424(1), 424C(1), 425(2)(c), 425(3)). The RRT considered that it was appropriate to proceed to a decision without offering the applicant a hearing. It considered that she had had ample opportunity to provide details in support of her claim to a protection visa. Since she had failed to provide information on matters going to the very heart of her claims, the RRT was prepared to infer that further invitations to her were likely to prove fruitless.

21 The RRT observed that the applicant’s claims were based upon her assertion that she was a Christian, but there was little material before it to support that assertion. There was nothing to show that the applicant had any knowledge of the tenets of the Christian religion; nor had she explained the denomination of the Christian faith to which she claimed to belong or the churches she claimed to have attended. Similarly, she had not explained why she felt unable to give proper expression to her religious beliefs within the legally recognised churches in the PRC. The RRT was therefore not satisfied that the applicant was a Christian.

22 Although the applicant had referred to discrimination against her at work, the RRT noted that she had obtained a better paying job as a manager after the "Tienanmen Turmoil" and she had made no claim that she faced dismissal from her employment. There was nothing to suggest that she would be unable to find suitable employment should she return to the PRC. Accordingly, the RRT was not able to conclude that the applicant had suffered "serious harm" in her employment within the meaning of s 91R of the Migration Act (which limits the concept of "persecution" for the purpose of applying the definition of "refugee" in the Refugees Convention).

23 The RRT found that, had the applicant been the subject of active police interest, she would not have been able to obtain a passport in her own name and to leave the country without difficulty. Further, in her protection visa application, the applicant had signed a statutory declaration in which she said that she had never been convicted of any crime or offence and that she had not been the subject of any criminal investigation. That declaration was inconsistent with her claims and the RRT preferred to accept her statutory declaration in preference to her unsworn statement. It found, accordingly, that she was not under investigation by the police or other authorities in the PRC.

24 The RRT concluded that it could not be satisfied that the applicant had a well-founded fear of persecution in the PRC for a Convention reason. It was therefore not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.

25 Prior to the hearing in this Court, I wrote to the Minister’s representatives pointing out that the RRT appears to have known by 29 July 2003 that the applicant may have changed her address, yet did not send her a further copy of the letter of 15 July 2003 at her new address. I invited further submissions on the significance, if any, of that fact for the RRT’s compliance with the statutory scheme laid down in Part 7, Divs 4 and 7A of the Migration Act.

26 The Minister’s representatives responded with written submissions (in the form of a letter), to which was attached a copy affidavit, sworn by a Graduate-at-Law employed by the Minister’s solicitors. The affidavit annexed documents establishing, among other things, that the letter of 15 July 2003 was posted by the RRT to the applicant on that day. The significance of this is that s 441A(4)(a) of the Migration Act provides that an invitation under s 424 to provide further information can be given by dating the document and dispatching it within three working days by prepaid post to the last address for service provided to the RRT by the recipient. If that is done, the document is taken to have been received by the recipient seven working days after the date of the document.

27 As I put to Ms Francois, who appeared for the Minister, I think it unfortunate that the affidavit should have been brought to the applicant’s (and the Court’s) attention just before the hearing. If the Minister intends to uphold a decision of the RRT on the basis that the RRT was entitled to dispense with an oral hearing, the Minister should adduce evidence that all the statutory preconditions to the RRT dispensing with an oral hearing have been complied with. In this case, the statutory preconditions included a requirement that the RRT dispatch the invitation to the appropriate address within three days of the date of the invitation (s 441A(4)). That requirement should have been clear to the Minister’s representatives well before the hearing in this Court, even if the applicant did not foreshadow giving evidence that she had not received the invitation of 15 July 2003.

28 Ms Francois sought to read the affidavit despite its belated production. Since the applicant had had little prior opportunity to consider the affidavit, I would have granted her an adjournment (even without a request by her) if any aspect of the affidavit could realistically be disputed or if I thought that there were some further inquiries that she could usefully make about the contents of the affidavit. However, the applicant did not dispute anything in the affidavit and did not suggest any further inquiries that she might reasonably wish to make. Nor could I think of any such inquiries. In these circumstances, I allowed the affidavit to be read.

29 During the hearing I endeavoured to explain to the applicant that it was possible that something might turn on whether or not she had received the letter of 15 July 2003. I further endeavoured to explain that if she wished to claim that she had not received the letter it would be necessary for her to give evidence of that fact on oath or affirmation. She declined that opportunity. In the absence of any evidence suggesting that the applicant did not receive the letter of 15 July 2003, I infer (if it matters) that it is probable that she did. The letter and a copy were sent to the postal and residential addresses then current for the applicant. They were not returned. The likelihood is that she received one or both of the letters.

30 I am satisfied that the letter of 15 July 2003, inviting the applicant to provide additional information, was dispatched on the date it bears and was sent by prepaid post to the last address for service provided by the applicant in connection with the review. It follows that the invitation was given in accordance with the procedure laid down in s 441A(4) of the Migration Act. The invitation is therefore deemed to have been received seven working days after its dispatch – that is, on 24 July 2003 (s 441C(4)). If it matters, I am satisfied on the balance of probabilities that the applicant actually received the letter no later than 24 July 2003.

31 Since the applicant did not provide the additional information within the time specified (or at all), the RRT was not obliged to invite the applicant to appear before it to give evidence and present arguments in relation to the decision under review (ss 424C(1), 425(1), 2(c)). Moreover, the applicant was not entitled to appear before the RRT (s 425(3)). Thus the RRT was entitled to decide the application on the documentation before it without giving the applicant an opportunity to appear.

32 It is not to the point that the RRT was notified of a change of address on 8 August 2003 or perhaps as early as 29 July 2003. By the latter date the invitation of 15 July 2003 had been dispatched and had been received by the applicant. Unfortunately, she chose not to respond to the invitation and thus the RRT was not given any of the additional information it had requested.

33 The applicant complained that the RRT had failed to pay sufficient regard to the matters she had raised in her original application. But this amounts only to a complaint that the RRT erred on the merits. It does not establish jurisdictional error. In any event, it is difficult to see what other decision the RRT could have reached on the material before it.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.


Counsel for the Respondent:	Ms R Francois

Solicitor for the Respondent:	Clayton Utz

Date of Hearing:	2 February 2004

Date of Judgment:	5 February 2004

1.	The application be dismissed.
2.	The applicant pay the respondent’s costs.

Federal Court of Australia

NAWJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 54 (5 February 2004)