SZDTN v Minister for Immigration & Multicultural & Indigenous [2006] FCA 175 (3 March 2006)

Last Updated: 9 March 2006

FEDERAL COURT OF AUSTRALIA

SZDTN v Minister for Immigration & Multicultural & Indigenous

Affairs [2006] FCA 175

MIGRATION – further evidence rejected – no issue of principle arising


Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) s 425A, s 441A(2)(a)



















SZDTN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1764 OF 2005



CONTI J
3 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1764 OF 2005

BETWEEN:	SZDTN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	3 MARCH 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Appeal from the decision of Emmett FM made on 8 September 2005 be dismissed.

2. The respondent pay the Minister’s costs of the appeal.











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	NSD 1764 OF 2005

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

JUDGE:	CONTI J
DATE:	3 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Background to the appeal to the Federal Magistrate’s Court

1 The appellant is Arabic Lebanese by nationality. He was born in Lebanon on 1 October 1961. He arrived in Australia on 14 February 2000. On 10 May 2000 he applied for a protection visa. In his application he recorded that he left Lebanon ‘... on a holiday and for the purpose of visiting my sister, who lives in Sydney’. He asserted in his protection visa application inter alia as follows:

‘... I quite often would have intelligence or security personnel knock on my door and take me in for questioning usually to the Army base at the Museum area of Beirut and... every time the door rang I would be concerned that army or intelligence people will be coming to take me in for questioning because of my role in the Lebanese Forces Party, and militia during the war.

I fear I will be arrested again without an arrest warrant, as usual, by the Lebanese Authorities. This time I also fear that Syrian intelligence will want to question me as well. Usually, in previous times I was arrested by the Lebanese authorities. I would be intimidated, threatened and sometimes beaten. Almost always after every time I would be taken in for questioning I would be forced to sign a statement declaring I would not participate in any political activity.’

2 On 21 June 2000 a delegate of the Minister refused to grant the appellant a protection visa. On 19 July 2000, the appellant filed an application for review of the Minister’s decision. On 19 July 2000, the Tribunal wrote to him and informed him that if he had any new documents or written evidence, he should send the same to the Tribunal. He was informed by the same communication that it was very important that he inform the Tribunal in writing if he changed his telephone number, home address or his address for service. By letter dated 3 April 2002, he was invited by the Tribunal to attend a hearing on 2 May 2002, being thereby informed that the Tribunal was not prepared to make a decision favourable to him on the material then before it. A response was requested by 19 April 2002. However the Tribunal’s letter was returned marked ‘Return to Sender’. The letter of notification was also sent to the appellant’s adviser.

3 The Tribunal recorded the following history concerning that application:

‘On 3 April 2002 the Tribunal wrote to the [appellant] advising that it had considered all the papers relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the [appellant] to give oral evidence and present arguments at a hearing on 2 May 2002. The [appellant] was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response was received. The Tribunal undertook a number of checks in an attempt to locate the [appellant], but was unable to obtain any more up to date address or other contact details. On 29 April 2002 the [appellant’s] adviser informed the Tribunal that she was experiencing difficulties in contacting the [appellant]. She confirmed, however, that the [appellant] had received the Tribunal’s invitation to give oral evidence.

The [appellant] did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the [appellant] to appear before it.’

4 Its conclusions were in essence as follows:

‘In sum, in view of the lack of detail contained in the [appellant’s] claims, the Tribunal cannot make findings of fact in relation to his claims. Based on the evidence before it, the Tribunal is unable to be satisfied that the [appellant] has been persecuted for a Convention reason in the past, or that there is a real chance that he would be persecuted for a Convention reason in the reasonably foreseeable future. The Tribunal, therefore, cannot be satisfied that the [appellant] has a well-founded fear of persecution for a Convention reason. Accordingly, it cannot be satisfied that he is a refugee under the Refugees Convention.’

5 The Tribunal thereupon proceeded to conduct its review and determined in summary that it was not satisfied that the appellant was being pursued by the Lebanese intelligence, following upon an alleged incident said to have occurred on 21 April 2000, the Tribunal observing in that regard inter alia that he had no difficulties in obtaining travel documents to Australia. The Tribunal found that the appellant lacked any viable basis for his protection visa application.

6 The appellant sought review of the Tribunal’s decision by the Federal Magistrate’s Court, by pursuant to s 39B of the Judiciary Act 1903 (Cth), by an application filed on 4 June 2004, and an amended application filed on 16 November 2004, on the ground of denial of any opportunity to be heard. On 4 June 2004, the appellant made application for judicial review of the Tribunal’s decision to the Federal Magistrate’s Court, upon the following bases:

(i) he did not receive the Tribunal’s invitation to the hearing, because the same had been apparently sent to the address provided by him in his review application, and not to his changed address which he asserted to have been notified to the Department on 23 November 2000;

(ii) he was therefore denied procedural fairness on the footing of non-compliance with s 425A of the Migration Act 1958 (Cth) (‘the Act’).

The proceedings conducted by the Federal Magistrates Court

7 The Federal Magistrate (Emmett FM) considered that the only two issues arising were as follows:

(i) whether or not the Tribunal failed to comply with s 425A of the Act, such that it was not entitled to proceed to conduct its review without taking any further action to allow or enable the appellant to appear before it;

(ii) whether, if the Tribunal’s decision was affected by jurisdictional error, the Federal Magistrate’s Court should grant the relief sought having regard to the appellant’s delay in filing his application seeking constitutional writ relief.

8 The Federal Magistrate found in the first place as follows:

(i) in the circumstances, the posting by the Tribunal of a s 425A notice to the appellant’s adviser did not constitute compliance with the deeming provisions of s 441A(2)(a) of the Act, in that the adviser was not a person authorised by the appellant to receive a s 425A notice;

(ii) accordingly the Tribunal was not entitled to proceed with its decision on the review without, in accordance with s 425 of the Act, inviting the appellant to attend a hearing; accordingly in proceeding as the Tribunal did, the appellant was denied procedural fairness and accordingly, its decision was affected by jurisdictional error.

9 The Federal Magistrate then addressed the further issue arising as to whether, because the Tribunal’s decision was affected by jurisdictional error, the Court should grant the relief sought having regard to the appellant’s delay in filing his consequential application for prerogative relief. The extent of that delay was one day short of two years after the Tribunal’s decision was handed down. In that regard, the evidence disclosed that the appellant’s sister became aware of the Tribunal’s adverse decision by at least 1 May 2003, and that the appellant was living with her at least ‘from around’ that time.

10 The Federal Magistrate further found that the appellant ‘did not file in this Court until 4 June 2004’, that being ‘some 13 months from the latest date, being around 1 May 2003, of which I am satisfied the [appellant] was aware of the Tribunal’s decision’. Moreover the Federal Magistrate recorded that the appellant offered no evidence of any reason for the delay’, and further that he did not provide any evidence of any steps taken by him, after he became aware of the Tribunal decision, to obtain any legal advice or make any enquiry as to his residency status, irrespective of whether he had seen the Tribunal’s letter of 2 June 2002.

11 After drawing attention to observations of McHugh J made in Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491 at [15]- [17], the Federal Magistrate found as follows:

‘However, in balancing the interests of justice to the community in having such administrative decision making finalised and the interest of the [Appellant] in having an opportunity to have his claims heard and considered according to law, I am satisfied that the delay of 13 months in seeking constitutional writ relief from this Court, occasioned solely by the [Appellant] without explanation, is undue and the relief sought should not be granted.’

Accordingly her Honour dismissed the application on 8 September 2005.

The present appeal to the Federal Court

12 The appellant filed notice of appeal to the Federal Court on 22 September 2005, on the following grounds:

‘1. The RRT proceeded to make a decision on review in breach of s 425 and 426A of the Migration Act. The audi altererm partem rule requires a decision maker to hear a person before making a decision affecting the interests of that person.

2. The RRT decision was infected by a jurisdictional error and was therefore no decision at all. It was a nullity.

3. The principal grounds of the application:

The [appellant] contends that he was not accorded an opportunity to be heard by the Tribunal. A failure to accord procedural fairness is jurisdictional error. It has now been established by the judgment of the High Court in Plaintiff 157/2002 v Commonwealth of Australia (2003) ALR 24 that s 474 of the Act does not protect a purported decision which is infected by a jurisdictional error. A party cannot be condemned without being heard; Kioa v West [1985] HCA 81; (1985) 159 CLR 550.

2. Whether lapse of time is a barrier to an application where the decision is a nullity and the discretion factor

There are many judgments saying that there is no discretion where the vitiating error is "manifest", and the [appellant] for the remedy is a person directly aggrieved. In Re: Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52, the High Court of Australia approved the following statement by Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 105:

"If therefore, a clear case of want or excess of jurisdiction has been made out and the prosecutor is a party aggrieved, the writ will issue almost as of right...".’

Remission of the appeal to the Tribunal was sought

13 Notice of contention was filed on behalf of the Minister on 26 October 2005, on the following grounds:

‘Grounds

1. The Tribunal gave valid notice of the hearing to the [appellant] pursuant to s 425A of the Migration Act 1958 ("the Act") by sending the invitation to hearing dated 3 April 2002 to the [appellant’s] adviser, who was a person authorised by the [appellant] pursuant to s 441(2)(b) of the Act to receive documents of that kind on behalf of the [appellant].

Particulars

(a) Section 425A of the Act required an invitation to be sent in accordance with s 441A.

(b) Section 441A(2)(a) of the Act provided that a notice under s 425A was to be taken to be duly given to an [appellant] if given to a person authorised by the [appellant] to receive documents of that kind on behalf of the[appellant].

(c) The [appellant’s]nomination of his advisor, Gilda Ponferrada of "Migassist", in his application for review to the Tribunal lodged on 19 July 2000, was an authorisation for that person to receive documents on behalf of the [appellant] within the meaning of s 441A(2)(a) of the Act.

2. The invitation to hearing sent to the [appellant’s] advisor on 3 April 2002 was a valid notice pursuant to s 425A of the Act, and was sent in compliance with the provisions of s 441A(2)(a) of the Act, and was thus, pursuant to s 441A(2)(a) of the Act, deemed to have been duly given to the [appellant].

3. The deemed receipt of the invitation to hearing of 3 April 2002 by the [appellant]meant that the Tribunal committed no jurisdictional error by proceeding pursuant to s 426A of the Act to determine the appellant’s application without a hearing, and without taking any further action to allow him to appear.

Particulars

(a) The [appellant]had been invited to a hearing pursuant to ss 425 and 425A of the Act, and the Tribunal was thus entitled to proceed pursuant to s 426A.’

14 The appeal came on for hearing before me on 14 December 2005. The appellant was represented by counsel, as was of course the Minister. Leave was sought to adduce further evidence by way of an affidavit made on 6 December 2005 affirmative of his having acted properly once having become aware of the Tribunal’s decision. The appellant submitted in summary that he was denied the opportunity to present his case and be heard at the Tribunal proceedings, because he did not receive notification of the hearing date.

15 For the Minister’s part, extensive written submissions were provided, which summarised in detail the circumstances of the appellant leading up to the hearing by the Federal Magistrate, and which addressed comprehensively well known and established authority governing the present circumstances. I was referred in particular to well-known established authorities governing the reception of fresh evidence and governing the discretionary grant or refusal of relief. On this basis, I am not persuaded that the further material provided by the appellant should be admitted into evidence on principle in the context of this appeal, although having read the same for the purpose of so ruling, I do not think that its content, even if unchallenged, could have materially or conceivably advanced the appellant’s case on the appeal to any significant extent.

16 It is not for me of course, to express any view as to the appellant’s credibility. The appeal took the form, and understandably so, of addresses of counsel for both parties, and all that could be said in address was put competently by counsel for both parties, and in conformity with their respective written submissions. The appellant was afforded what could only be described as the impressive support on the part of his sister throughout this litigation. In the end, the circumstance remained that no error is discernible in and from the careful and well framed reasons for judgment of the Federal Magistrate, and the court is left with no alternative short of dismissal of the appeal with costs. Moreover the proceedings having already travelled the distance of review by the Federal Magistrate, prior to the present appeal, it would be plainly wrong at this very late stage to allow further evidence to be tendered to the extent sought, even if the same had compelling significance, which in my opinion is not quite evidently the case.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 3 March 2006

Counsel for the Appellant:	D Marr
Solicitor for the Appellant:	John B Hajje & Associates
Counsel for the Respondent:	J Potts
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 December 2005
Date of Judgment:	3 March 2006