SZEXZ v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 449 (27 April 2006)

MIGRATION – invitation by Refugee Review Tribunal to give additional information – ‘prescribed period’ in which information to be supplied – whether breach constitutes jurisdictional error

Migration Act 1958 (Cth) – s424B(2)
Migration Regulations 1994 (Cth) – reg 4.35(3)

Minister for Immigration and Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201 referred to
NACI v Minister for Immigration and Multicultural & Indigenous Affairs [2002] FCAFC 154 referred to
NAWR v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCA 1520 referred to
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1989) 194 CLR 355 cited
Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 cited
SAAP v Minister for Immigration and Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 referred to
SZDQL v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 769 referred to

SZEXZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1960 of 2005

JACOBSON J
SYDNEY
27 APRIL 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1960 OF 2005

BETWEEN:	SZEXZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
	REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	27 APRIL 2006
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1960 OF 2005

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

JUDGE:	JACOBSON J
DATE:	27 APRIL 2006
PLACE:	SYDNEY

1 This is an appeal from a decision of FM Lloyd-Jones given on 29 September 2005 dismissing an application for review of a decision of the Refugee Review Tribunal ("RRT") handed down on 23 June 2004. The RRT affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa.

2 The appellant’s application for review by the RRT was lodged in March 2004. Shortly afterward the RRT invited the appellant to give additional information about his claims pursuant to s 424(2) of the Migration Act 1958 (Cth) ("the Act"). The date by which the appellant was requested to respond was beyond the 14 day "prescribed period" fixed by s 424B(2) of the Act and Reg 4.35(3) of the Migration Regulations 1994 (Cth).

3 Notwithstanding that the additional time provided to the appellant might be thought to have been for his benefit, the Minister concedes that, upon the proper construction of s 424B(2), the RRT’s invitation was in breach of that section. However, the Minister submits that the decision of the RRT, made after the breach, did not involve jurisdictional error.

4 The only issue which arises on the appeal is whether, in the circumstances, the breach of s 424B(2) involved jurisdictional error on the part of the RRT and, if so, whether the Court ought to exercise its discretion to refuse relief.

5 The appellant is a 29 year old Sikh who is a citizen of India. He entered Australia on 30 December 2003 on a visitor’s visa. Shortly afterward he applied for a Protection Visa, claiming to have a well founded fear of persecution on the ground of religion and ethnicity as a Sikh and on political grounds because of his affiliation with the Bharatiya Janata Party (‘the BJP’).

6 He applied to the RRT on 22 March 2004 for a review of the delegate’s decision. The RRT’s invitation under s 424 of the Act was sent to the appellant by prepaid post on 5 April 2004. Pursuant to s 441C(4) of the Act, the appellant was taken to have received the invitation on 16 April 2004.

7 The effect of s 424B(2) and Reg 4.35(3) is that the invitation ought to have specified 30 April 2004 as the date for the provision of the information. However the date specified was 21 May 2004, that is to say 21 days after the date required by law.

8 By a separate letter of 5 April 2004, issued pursuant to s 424A of the Act, the RRT invited the appellant to comment on information that might be the reason or part of the reason for affirming the delegate’s decision. The specified date for response to this letter was 30 April 2004, which was in accordance with s 424B(2).

9 The appellant responded to both of the invitations in an undated letter received by the RRT on 28 April 2004. The letter provided minimal further detail in response to the RRT’s s 424 and s 424A letters. No point was taken that additional time had been accorded to respond to the s 424 invitation or that the appellant was prejudiced by this.

10 On 21 May 2004, the appellant attended a hearing before the RRT and gave oral evidence. Again, there is no suggestion that the appellant made any protest at the hearing of prejudice by reason of the time granted to him to respond to the s 424 invitation.

11 The RRT made its decision on 31 May 2004. The decision was handed down on 23 June 2004.

12 In considering the question of whether the breach of s 424B(2) involved jurisdictional error it will be necessary to have regard to a number of the provisions contained in Div 4 of Part 7 of the Act. I do not propose to repeat them all but I will set out in full the provisions of s 424B and the relevant provisions of Reg 4.35.

15 Regulation 4.35A specifies the prescribed period for the purpose of s 424B(3)(b), that is to say, where the person is invited to give additional information, and to comment on information, at an interview.

16 The prescribed period for that purpose, for a person not in detention, starts when the person receives the invitation and ends 28 days after the day on which the invitation is received; see Reg 4.35A(3).

17 Regulation 4.35B specifies the prescribed period for the purpose of s 424B(4) of the Act, that is to say where the RRT extends the prescribed period for a further period. The prescribed period is 28 days after receipt of the notice of extension; see Reg 4.35B(2).

18 The further prescribed period for s 424B(5) is also fixed as 28 days by Reg 4.35C.

19 The Appellant claimed that he was a Sikh from the state of Haryana in India. He claimed that in 1984 he and his family left the state of Haryana after Hindus looted their house and set fire to it. He said they went to live in the Punjab.

20 The appellant claimed that in the Punjab he and his family were beaten by the police after they were forced to provide food to armed Sikh militants. He claimed that he and his father were imprisoned and, although subsequently released, they were subject to further detention on later occasions.

21 As a result of this, the appellant states that he and his family relocated to Haryana in about 1989 or 1990. He said that he and his family were supporters of the BJP and that in 1992 his father was elevated to an office within the BJP at the district level.

22 Due to his support for the BJP, the appellant said that he was considered to be an enemy of the Congress Party and he received threats from it. He said that when the Congress Party came to power in 1995 false charges were laid against him. He claimed that he was released on bail but that members of the Congress Party then tried to kidnap him. He said he was later stabbed by Congress Party members and that the police refused to assist.

23 The appellant claimed that the police then started harassing him and he went into hiding, staying with relatives in Uttar Pradesh.

24 The appellant said that he left for South Africa in 1999 and he then went to Botswana. He returned to India for a short while, where he lived in the Punjab, but he found the situation had not improved and so returned to Botswana for approximately 8-10 months before travelling to Australia.

25 The RRT found that the appellant was not a credible witness and it rejected all of his claims. It did so upon the basis of what it considered to be material inconsistencies in his evidence. In view of the issues raised on the appeal it is unnecessary to set out the RRT’s reasons in any further detail.

26 The appellant relied on 15 grounds of review, all of which were said to raise jurisdictional error by the RRT.

27 The learned Federal Magistrate carefully considered and ultimately rejected each of the grounds. The only ground he considered to be of any substance was the possible failure to comply with s 424B(2).

28 Federal Magistrate Lloyd-Jones considered at some length the effect of the decision of the High Court in SAAP v Minister for Immigration and Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 ("SAAP"). His Honour came to the view that the purpose and legislative context of s 424B was to be contrasted with that of s 424A, such that the legislative intention was not to be that a breach of the time provision in s 424B(2) would lead to the invalidation of a decision made following a breach of the section.

29 As I have said, the Minister conceded that the RRT’s s 424 letter breached s 424B(2) of the Act by specifying a date for response which was outside the prescribed period. It may seem curious that what would appear to be an indulgence extended to an applicant could nonetheless constitute a breach. However, I do not suggest that the concession was wrongly made.

30 The question of whether a breach of s 424B(2) gives rise to jurisdictional error is to be answered by having regard to the language of the section and the scope and object of the whole statute; the question is whether it was a purpose of the legislation that an act done in breach of the provision should be invalid; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1989) 194 CLR 355 at [91], [93]; see also SAAP at [73], [205].

31 In SAAP, a majority of the Court held that a breach of s 424A was jurisdictional in nature so that a decision handed down after the breach was rendered invalid by it.

32 Their Honours pointed to the mandatory language of s 424A and to the purpose of the provision which McHugh J described at [77] as "one of the centrepieces of... (the) regime of statutory procedural fairness."; see also at [165]-[166], [173] per Kirby J, and at [205]-[208] per Hayne J.

33 The question of whether a breach of s 424B(3)(b) of the Act resulted in jurisdictional error was raised in SZDQL v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 769 ("SZDQL"). However, Sackville J found that the provision was not breached. It was therefore unnecessary to decide whether a contravention of s 424B(3) constituted jurisdictional error. His Honour said that the issue should be left to a case in which the court had the benefit of full argument; see at [50], [53].

34 I have been much assisted by the written and oral submissions of both Counsel. I am indebted to Mr Zipser for accepting the brief for the appellant pro bono pursuant to an order I made under Order 80 of the Federal Court Rules.

35 Mr Zipser submitted that the language of s 424B(2), though not using the imperative "must" was nonetheless mandatory in nature. He also pointed to the object of the section as a part of the statutory procedural fairness regime which is codified in Div 4 of Part 7 of the Act.

36 Mr Potts, for the Minister, contended that the language of the section was neutral rather than imperative. He submitted that the time provision in s 424B(2) was not at the heart of the decision making process and that this was to be contrasted with the requirement of written particulars in s 424A. He also provided me with a helpful analysis of the place and function of s 424B(2) in the statutory scheme.

37 Although it is not one of the centrepieces of the statutory scheme, s 424B(2) plays an important part in carrying out the statutory requirement of procedural fairness. It applies to invitations under both s 424 and s 424A. Its object, or at least one of them, is apparently to ensure that after the invitation is issued, the applicant has a reasonable, albeit relatively short, period of time in which to provide the information or comments to the RRT.

38 Support for the view I have expressed as to the object of the provision may be found in Sackville J’s observation in SZDQL at [50] as to the statutory purpose of s 424B(3)(b). His Honour said that its object is to ensure that the required interview takes place within a reasonably short period of the invitation.

39 Section 424B(3)(b) operates in a slightly different way from s 424B(2). The effect of s 424B(3)(b) is that the RRT may stipulate a time for the interview at any time within the prescribed period. There is an outer time limit within which the interview may take place but the RRT may appoint any date within the period, indeed, at the very hearing at which the invitation is extended; SZDQL at [50].

40 By contrast, s 424B(2) is directed to the provision of information and comments by an applicant and when read with Reg 4.35(3), it sets an opening and closing period of 14 days after receipt of the invitation. It would be open to the invitee to provide the information or comments within that 14 day period but it is not open to the RRT to specify a date before the closing of that period by which the information or comments must be provided.

41 I do not consider that this difference in the operation of the two subsections leads to a different view of their objects. It seems to me that what Sackville J said in SZDQL as to the object of s 424B(3)(b) applies equally to s 424B(2).

42 However, it seems to me that there is a further aspect of the statutory purpose of those subsections which must be borne in mind when answering the question of whether a breach is jurisdictional in nature. This appears from a consideration of the part which those subsections play in the codified regime of procedural fairness contained in Div 4 of Part 7 of the Act.

43 A failure to give the additional information requested under s 424, or to give the comments pursuant to an invitation given under s 424A, before the time specified, or any extended period, authorises the RRT to make a decision on the review without taking any further action; see s 424C and s 425(2)(C); see also NACI v Minister for Immigration and Multicultural & Indigenous Affairs [2002] FCAFC 154.

44 Moreover, a failure to give the information or the comments before the specified time relieves the RRT of its obligation to invite an applicant to give evidence and present arguments at an oral hearing; see s 425(2)(c). Indeed, failure to give the information or to provide the comments removes any entitlement of an applicant to appear before the RRT; see s 425(3).

45 It might be thought therefore that the time limits fixed by the Act and the Regulations must be adhered to strictly. Further support for this view is to be found in the observation of Sackville J in NAWR v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCA 1520 at [33] and [35], that no period other than the period of 14 days for the initial prescribed period or 28 days for the further prescribed period can be specified.

46 Against this, s 424B(2) and s 424B(3)(b) each provide that where no period is prescribed, the information or comments are to be given within a reasonable period. Mr Potts drew attention to the power of the RRT to extend the period to respond to an invitation contained in s 424B(4). It may well be that this power can be exercised after the initial prescribed period has expired; see Minister for Immigration and Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201 at [51].

47 A difficult question of construction and reconciliation of the provisions of Div 4 of Part 7 with the privative clause in s 474 of the Act would arise if the RRT were to specify in its s 424 or 424A invitation a period of 13 days to respond, and, in the absence of a response within that period, the RRT proceeded to make a decision on the review without further action, as apparently authorised by s 424C and s 425(2)(c).

48 However, I am relieved from answering that question because of the circumstances in which the apparent breach of s 424B(2) occurred in the present case. What I have to determine is whether the breach complained of gave rise to jurisdictional error. That cannot be answered by simply posing the question of breach or no breach; it is necessary to consider whether in the particular circumstances the breach had that result.

49 I do not see how, having regard to the language of s 424B(2) or the scope of Div 4, a breach which consisted of giving an applicant more time than he or she was entitled to, could be thought to render invalid a decision given after the breach. This must be especially so where the information was provided and a hearing took place in accordance with s 425.

51 Even if I am wrong in the view that I have reached on the principal question, I would have refused relief on discretionary grounds.

52 Relief may be refused inter alia, where there has been waiver or acquiescence in the invalidity of the decision or where an applicant has suffered no injustice; see Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [57]- [58]; see also SAAP at [80].

53 Here, I am satisfied that the appellant has suffered no injustice. As I have said he was granted an indulgence by the additional period to respond and he responded without complaint. He also attended the hearing and, as one would expect, made no apparent complaint about the additional time period granted to him to provide the information.

I certify that the preceding fifty four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Counsel for the Applicant:	Mr B Zipser (Order 80 Pro Bono Counsel)

Counsel for the Respondent:	Mr Potts

Solicitor for the Respondent:	Clayton Utz

Date of Hearing:	12 April 2006

Date of Judgment:	27 April 2006

Federal Court of Australia

SZEXZ v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 449 (27 April 2006)