SZDQZ v Minister for Immigration & Multicultural Affairs [2006] FCA 130 (13 February 2006)

Last Updated: 23 February 2006

FEDERAL COURT OF AUSTRALIA

SZDQZ v Minister for Immigration & Multicultural Affairs [2006] FCA 130

SZDQZ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1695 OF 2005



MADGWICK J
13 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1695 OF 2005

BETWEEN:	SZDQZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE OF ORDER:	13 FEBRUARY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs assessed in the sum of $4,000.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1695 OF 2005

BETWEEN:	SZDQZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	13 FEBRUARY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1 This is an appeal from a judgment of the Federal Magistrates Court given on 29 August 2005 by Federal Magistrate Nicholls. His Honour dismissed an application to review a decision adverse to the appellant made by the Refugee Review Tribunal (‘Tribunal’). The Tribunal’s decision was made on 18 November 2002. It followed a rejection of the appellant’s application for a protection visa by a delegate of the respondent Minister on 19 February 2002.

2 The Tribunal, in accordance with s 441G of the Migration Act 1958 (Cth) (‘Act’) duly sent notification of an invitation to the appellant to appear at a hearing, scheduled for 15 November 2002, to an ‘authorised recipient’, a migration agent engaged by the appellant. Section 441G(2) provides that if the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However this does not prevent the Tribunal giving the applicant a copy of the document.

3 The Tribunal did in fact attempt, by sending registered letters addressed to the appellant’s home address as notified to the authorities, and also to his mailing address as notified to the authorities, to tell the appellant personally of the intended scheduled hearing. The letters addressed to him personally were returned, delivery of them not having been effected.

4 The appellant’s first complaint is that he did not receive notice of the hearing such that he was denied natural justice. The appellant appears unrepresented before me, and was unable to add anything to the argument advanced on his behalf by his solicitor, Mr Silva, in the court below. Mr Silva argued that an invitation to a hearing should not be a hollow formalism and that the Tribunal should have recognised that many applicants for refugee status are forced by their circumstances to move about: the Tribunal should have waited for three months or so to enable a very possibly peripatetic applicant to be in touch with the Tribunal and/or his adviser and regularise the authorities’ knowledge of his current whereabouts.

5 This is not a case where the Tribunal had any specific reason to think that the appellant was under any constraint of economic or other pressure that might cause him to have to move, or to have difficulty in keeping the Tribunal and/or his migration advisor informed of how he might be effectively contacted. It is not every applicant for refugee status who either moves about or, for honest reasons of logistical difficulty, fails to notify relevant persons of his whereabouts and contact details. Judging by the fate of the great bulk of applications to the courts, no small number of applicants well know that they have no valid case for refugee status, nor any other basis for a lawful claim to remain in Australia. The Tribunal is not required to give everybody a further three months, or two months, or one month trouble-free residence in Australia. This is what the submission amounts to. There is nothing in it and the learned Federal Magistrate was right to reject it.

6 The second complaint raised by the Notice of Appeal is more particular. The appellant had been a member of a political party known as the Akali Dal (Mann). It was a party which apparently supported secession from India, the appellant’s country of nationality, in the interests of Sikhs, of whom the appellant was one. The appellant claimed that that party might harm him in two ways if he did not rejoin it. The first was that it might harm him

directly in some unspecified way. The second was that it might inform the authorities of his former adherence to it in order to cause him trouble from the authorities. The Minister’s delegate had taken the view, relying on material from Australia’s own Department of Foreign Affairs which for some reason was called ‘independent’ by the Tribunal Member, that, as the Member summarised it:

‘...the situation for Akali Dal (Mann) members and supporters was no different to the situation in relation to members and supporters of other registered political parties in that they are free to promote their political views in conformity with Indian law and if they are subjected to political persecution from rival parties or other agents, they have recourse through the Indian legal system. In addition to recourse, under Indian state and federal law, there are state and federal human rights commissions to which complaints can be made.’

7 The Tribunal member said the following in her own conclusions:

‘The Tribunal is not satisfied that the [appellant’s] fear of harm from the authorities, or from Akali Dal (Mann), is well founded as it is not supported by independent country information. In addition to the independent country information referred to in the Department’s decision and accepted by the Tribunal, the Tribunal accepts recent independent country information which was obtained in response to a specific request for information about the claim from former Akali Dal (Mann) members that their refusal to rejoin has resulted in threats from the ADM leadership, including to inform the authorities of the persons’ previous political activities.’

8 The information supplied was that:

‘Akali Dal (Mann) is a small political party headed by [Mr] Mann. While Mr Mann was reported to be closely associated with the secessionist movement in the Punjab during the 1980s, he now advocates greater autonomy for the state rather than secession. Mr Mann is the party’s only elected member of Federal Parliament. In the State Assembly elections held in the Punjab in February 2002 the Party did not win any seats ... due to the size of the Party and its influence it was unlikely that the Akali Dal (Mann) was capable of carrying through any threats it might make against former members who refused to rejoin the party.’

9 The Tribunal member continued:

‘Furthermore, the Tribunal is satisfied on the basis of the [appellant’s] own evidence, that his former activities were known to the authorities and they were not concerned about them in the past and there is nothing to suggest that that has changed.’

10 The argument before the learned Federal Magistrate was that procedural fairness required that the substance of this specific information, which was said to be critical, should have been specifically notified to the appellant, and an invitation extended to him to comment on it before the Tribunal made its decision.

11 As the learned Magistrate found, the information would fall within the exception provided by s 424A(3)(a) of the Act, so that there was no specific provision of the Act which enjoined that the substance of the material should be disclosed to the appellant. The matter fell to be one to be dealt with generally as a question of procedural fairness.

12 The scheme of the Act is to provide a non-adversarial inquisitional review of the merits of an application for refugee status by the Tribunal. It is clearly foreseen and intended by the Act that the Tribunal should make its own inquiries. The Act envisages that an applicant to the Tribunal should receive a formal invitation to the hearing. If an applicant takes up the offer to attend the hearing, then any relevant new material, such as that in issue here, which might be relevant to the overall decision, should then be put to the applicant.

13 If an applicant fails to avail himself or herself of the opportunity to attend the hearing having been told, as required by the Act and as occurred here, that the Tribunal cannot decide the case in the applicant’s favour upon such papers as it has, there is no obligation, in my view, on the Tribunal to notify the applicant of new material and to give the appellant an opportunity to comment on it, whether at a further hearing or otherwise. There would be no obligation, before the hearing, so to notify an applicant who is intending, and who ensures that there is no failure to avail himself or herself of the opportunity to attend the hearing. The position of somebody who does not avail himself or herself of that opportunity cannot be any better. The hearing is the usual occasion, and the only mandatory occasion, when material of the kind in question is to be put to an applicant.

14 Thus, in my opinion, there is no substance in the second point either, and the learned Magistrate was correct to reject it.

15 The consequence is that the appeal must be dismissed with costs, assessed in the sum of $4,000.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 22 February 2006

Solicitor for the Applicant:	The appellant appeared in person
Counsel for the Respondent:	Mr P Braham
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	13 February 2006
Date of Judgment:	13 February 2006