NAZW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 96 (10 February 2006)

Last Updated: 20 February 2006

FEDERAL COURT OF AUSTRALIA

NAZW v Minister for Immigration &
Multicultural & Indigenous Affairs [2006] FCA 96

MIGRATION – appellant failed to attend RRT hearing – signed acceptance of hearing invitation - suggestion of default by migration agent – whether effective invitation sent - whether RRT authorised to proceed to decide review


Migration Act 1958 (Cth) – ss422B, s424A, 425, 426A,

B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 referred to
Moradian v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 1590 referred to
NADK of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 184 referred to
NAJT v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 134 discussed
SZBCS v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1457 referred to
SZBJW v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1356 cited
SZBNK v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 998 cited
VNAA v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 134; (2004) 136 FCR 407 referred to
WAJR v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 106 referred to






NAZW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1868 of 2005

JACOBSON J
SYDNEY
10 FEBRUARY 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1868 of 2005

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

JUDGE:	JACOBSON J
DATE OF ORDER:	10 FEBRUARY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the proceedings.

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 1858 of 2005

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

JUDGE:	JACOBSON J
DATE:	10 FEBRUARY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1 This is an appeal from a decision of Federal Magistrate Driver given on 13 September 2005 dismissing an application for review of a decision of the Refugee Review Tribunal ("the RRT") handed down on 23 December 2003.

2 The RRT affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa. The appellant is a citizen of the Peoples Republic of China. He claimed to have a well-founded fear of persecution in China on the ground that he was a practitioner of Falun Gung.

3 The appellant’s application for review of the decision of the delegate was filed on 8 May 2003. It gave as the address to which correspondence was to be sent as "Jack Meng Immigration Pty Limited" and it gave the appellant’s home address as his residential address. In answer to a question "Please tell us why you consider yourself to be a refugee" the appellant stated in the application for review "Please see my file at DIMIA".

4 On 15 October 2003, the RRT wrote to the appellant at his authorised address, namely that of the migration agent, stating that the Tribunal had considered the material before it but was unable to make a decision in his favour on the information alone. The appellant was invited to attend a hearing listed for Tuesday, 25 November 2003. A copy of this invitation to attend the hearing was also sent to the appellant at his home address.

5 On 18 October 2003, the RRT received a response to the hearing invitation, apparently signed by the appellant stating that he wanted to attend the hearing. On 20 October 2003 the letter addressed to the appellant at his home address was returned to the RRT. A box marked "insufficiently addressed" was ticked.

6 The appellant did not attend the hearing and the RRT proceeded to make a decision on the review under section 426A of the Migration Act 1958 (Cth) ("the Act") without taking any further action to enable the appellant to appear before it.

7 The RRT was not satisfied on the evidence before it that the appellant had a well-founded fear of persecution. It found that the claims were unclear and lacking in detail.

8 Federal Magistrate Driver observed at [2] that the only jurisdictional error apparent on the face of the application for review was an assertion that the RRT had overlooked some of the appellant’s claims. His Honour considered that there was no substance in this submission.

9 The learned Federal Magistrate then went on to consider whether there was an arguable case of jurisdictional error arising from the failure of the RRT to take any steps to contact the applicant’s migration agent. He referred to a decision of a Full Court in NAJT v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 134 ("NAJT").

10 Federal Magistrate Driver found at [6] that the RRT had met its statutory obligation under s 425 of the Act to invite the applicant to a hearing. The learned Magistrate observed at [7] that the RRT believed the appellant had accepted the hearing invitation and that the form of acceptance of the invitation was potent evidence of that.

11 His Honour went on to say that whilst he did not exclude the possibility that the signature on the form of acceptance was not the appellant’s signature, any default or misbehaviour on the part of the migration agent could not invalidate the decision of the RRT.

12 His Honour found that there was nothing before the RRT to indicate that the appellant did not want to attend the hearing. His Honour found that the RRT had invited the appellant to attend in accordance with its statutory obligation and that it was entitled pursuant to s 426A to proceed in his absence.

13 The learned Magistrate went on at [9] to say that there may be circumstances where it is desirable for the RRT to attempt to contact a migration agent but he said that whether there was a breach of a general law fair hearing rule in the present case was not a question which it was necessary to decide because of the provisions of s 422B of the Migration Act.

14 His Honour said that the only remaining issue was whether there was a possible breach of s 424A of the Act in not notifying the appellant of the information contained in the protection visa application upon which the RRT relied in coming to its decision.

15 However, his Honour found at [11] that the information was adopted by the appellant in his application for review and accordingly the information fell within the exception contained in s 424A(3)(b) of the Act.

Discussion

16 The notice of appeal raises the same grounds as were put before the learned Federal Magistrate, with one exception. The additional ground is that the Minister asserted before the Federal Magistrate that the appellant entered Australia in 1997 whereas in fact he arrived in 2003.

17 There is no error in the Federal Magistrate’s finding that the appellant’s claims were not overlooked. His Honour was correct in adopting the Minister’s submissions set out at [2] of the judgment.

18 The appellant is correct in asserting that the Minister’s submissions before the Federal Magistrate mistakenly referred to the applicant’s date of arrival in Australia as 1997. However, that was of no relevance to the decision; indeed the RRTs decision specifically refers to the fact that the appellant arrived in Australia in March 2003. The learned Magistrate was correct in finding that the RRT was entitled to proceed under s 426A.

19 The exercise of the power under s 426A(1) is predicated upon the satisfaction of two conditions, these are: first, an invitation under s 425, and second, a failure to appear. Both of those conditions were satisfied.

20 Even if the appellant’s failure to attend involved no fault on his part, the RRT was authorised to proceed to decide the review in the appellant’s absence: see VNAA v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 134; (2004) 136 FCR 407 at [16]; NADK of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 184 at [16]; SZBCS v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1457; B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 at [23] to [35].

21 Whether or not the decision in NAJT might be thought to have been decided on analogous provisions of the Act, namely ss 57, 494A, 494B and 494C, it is clear that the case turns on its own facts.

22 Madgwick J, with whom Conti J agreed, said at [189] that on the evidence in that case it was known to the delegate before he proceeded to make his decision that an effective invitation had not been sent. That was not the position here.

23 As the learned Federal Magistrate held, the RRT believed that the invitation had been received and accepted, indeed it was entitled to do so. The return of the form of invitation sent to the appellant’s residential address was not to the point because the RRT had received a form of acceptance apparently signed by the appellant. It was entitled to proceed on the basis that the form had been sent to and received by the appellant’s authorised agent.

24 The application for review by the RRT was filed after the provisions of s 422B came into force in July 2002; that section was therefore applicable: see SZBJW v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1356 at [4]. There may be some doubt as to the construction and effect of s 422B: see WAJR v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 106 at [57]; see also Moradian v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 1590 at [29] to [36].

25 However, even if s 422B was not effective to exclude any operation of the common law fair hearing rule, on the facts of the present case there was nothing to give rise to an obligation of procedural fairness to contact the appellant’s migration agent.

26 The appellant’s adoption of the contents of his migration file in his application for review had the effect that the appellant gave that information for the purpose of his review application: see s 424A(3)(b). The RRT was therefore not required to provide particulars of information under section 424A(1): see SZBNK v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 998.

27 For the reasons that I have given the appeal must be dismissed with costs.

I certify that the preceding twenty seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated: 17 February 2006

	The Appellant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 February 2006
Date of Judgment:	10 February 2006