SZGLA v Minister for Immigration and Citizenship & Anor [2007] FCA 103 (12 February 2007)

Last Updated: 16 February 2007

FEDERAL COURT OF AUSTRALIA

SZGLA v Minister for Immigration and Citizenship & Anor

[2007] FCA 103

MIGRATION – application for protection visa – appeal from Federal Magistrates Court – where application of review dismissed – whether the Federal Magistrate erred in not holding that the failure of the Tribunal to advise the appellant personally of the details of the hearing constituted a jurisdictional error – Tribunal advised ‘authorised recipient’ of hearing details – no legal error as Tribunal met statutory obligations


Migration Act 1958 (Cth), ss 422B, 424A, 425, 425A, 426A, 441A, 441G
Migration Regulations 1994 (Cth) , Reg 4.35D

Song v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 685 referred to
















SZGLA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2172 OF 2006

TRACEY J
12 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2172 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZGLA Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	12 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The name of the First Respondent be changed to Minister for Immigration and Citizenship
2. The appeal be dismissed with costs fixed at $1800.

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 2172 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZGLA Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	TRACEY J
DATE:	12 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal against a judgment of a Federal Magistrate, given on 27 September 2006, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 13 April 2005 and handed down on 5 May 2005. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the appellant.

2 The appellant is a citizen of India. He claimed to have a well-founded fear of persecution because of his work for social welfare organisations and his being the only Hindu member of the political party Dravida Munnetra Kazhagam ("DMK") in his district. The appellant’s claims centred on an individual who was "angry" with the appellant and had subsequently caused various tragedies which beset the appellant’s family between 1978 and 1998. The appellant claimed that he had made complaints to the police, but that the police did not do anything. Further claims involved the appellant being chased out of his house and being attacked by his brother. The appellant claimed to have lived in impoverished circumstances in different parts of India.

3 On 21 February 2005, the Tribunal sent a hearing invitation letter to the appellant at the address of the appellant’s migration agent. The appellant had nominated his agent as an authorised recipient of correspondence relating to his appeal to the Tribunal. As the hearing invitation letter requested a response by 9 March 2005 and no response had been received by 6 April 2005, an officer of the Tribunal telephoned the appellant’s migration agent on the land line telephone number provided on the application form, but was unable to obtain a response. The officer did not contact the migration agent on the mobile phone number also provided on the form. On the date of the hearing, neither the appellant nor his migration agent appeared. After the hearing, the Tribunal made telephone contact with the appellant’s migration agent. The agent said that he was not sure of the date and time of the Tribunal hearing. The migration agent was invited to provide a written statement, but no such statement was received.

4 The Tribunal proceeded under s 426A of the Migration Act 1958 (Cth) ("Act") to make a decision in the absence of the appellant. The Tribunal was not satisfied that the appellant attracted protection obligations in Australia and noted that there was insufficient detail provided to support the claim. On the evidence, the Tribunal could not be satisfied of the appellant’s claims and did not accept that the appellant had a well-founded fear of persecution.

5 The appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates’ Court. He claimed that the Tribunal had failed to exercise its jurisdiction by breaching s 425 of the Act and that he was not provided with 14 days notice pursuant to s 425A of the Act. The appellant claimed that he had directed that all correspondence was to be sent to his residential address and not to his migration agent. The appellant also raised claims that the Tribunal had breached s 424A of the Act because the contents of the Tribunal’s telephone conversation with the migration agent were not put to him for comment. The appellant further claimed that the migration agent had not contacted him about the hearing.

6 The Federal Magistrate found that there was no arguable jurisdictional error affecting the Tribunal’s decision. His Honour found that the Tribunal had complied with its obligations under ss 425 and 425A of the Act and that it was sufficient for the Tribunal to send an invitation to the authorised recipient pursuant to ss 441A(4) and 441G(1) of the Act and Reg 4.35D of the Migration Regulations 1994 (Cth) ("the Regulations"). The Federal Magistrate was not satisfied that the Tribunal had not followed those procedures and considered that it was probable that it did. He noted that the appellant was seeking to take advantage of his failure to comply with the instructions contained in Section D of the form on which he applied to the Tribunal for review of the delegate’s decision. Section D asked the applicant: "Where do you want us to send correspondence about your application?" Various options appeared in the form. An applicant was instructed to "tick one box only." Despite this the appellant had ticked the boxes adjacent to "my residential address in Australia" and a box which authorised correspondence in connection with the review to be received by "my adviser". The Federal Magistrate held that the requirements of the Act relating to the giving of notice of a hearing had been satisfied by the advice given to the adviser notwithstanding the Tribunal’s failure also to advise the appellant directly. His Honour relied on his decision in Song v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 685. The Federal Magistrate was prepared to accept that the appellant did not have actual notice, but considered that, if preconditions for the exercise of its power exist and the Tribunal has properly exercised its discretion to proceed, then it has no obligation to make further enquiries or efforts to notify an applicant that it proposed to do so.

7 The Federal Magistrate found that the Tribunal had taken into account the contents of the telephone conversation with the appellant’s migration agent before deciding to proceed pursuant to s 426A(1) of the Act, but that there was no breach of s 424A(1) of the Act because the Tribunal did not take the information into account in order to affirm the delegate’s decision. However, his Honour considered that, even if this conclusion were incorrect, the information from the appellant’s migration agent would be treated as information given by the appellant and would attract the exception provided for in s 424A(3)(b) of the Act.

8 The notice of appeal to this Court contains various grounds, many of which are no more than merits claims. Those that may be understood as constituting assertions of legal error on the part of the learned Magistrate are:

2. The single Judge of the Federal Magistrate’s Court ... failed to find error of law, jurisdictional error, procedural fairness and relief under s39B of the Judiciary Act 1903.

3. The grounds and relief is very much similar with a recent High Court Judgment – Nuin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002).

4. Recent High Court Judgments; plaintiff S157/2002 Commonwealth of Australia [2003] HCA 1.

5. Recent Federal Court of Australia Judgment: AGDB v Minister for Immigration and Multicultural Affairs. I will provide more ground after receiving the Judgment.

6. The grounds and relief is very similar with a recent Federal Court Judgment – SZCBB v Minister for Immigration and Multicultural and Indigenous Affairs .............

7. The FM erred in failing to find that the Tribunal erred in law under s476, s426 and Migration Act 1958. ...

8. My point is that despite having attended the hearing, it became imperative that, before the Tribunal made up its mind to dismiss the application, such in information was required to be sent to me in written to make comments, in order to fully compliance of s424A as decided by the majority Judge of the High Court in SAAP.

......."

(No editing of these grounds has been undertaken)

No particulars were provided in relation to any of the grounds.

9 The appellant appeared in person on the hearing of the appeal. He had the assistance of an interpreter. He told the Court that a Tamil friend had prepared the notice of appeal for him. It had not been translated for him before he signed it. He could not assist the Court to understand the grounds or elaborate on them. He asked that the matter be remitted to the Tribunal and asserted that he could not return to India because of fears for his life.

10 The appellant’s application to the Tribunal was made on a form which was completed on his behalf by his migration agent. It was, however, signed by the appellant. Although the appellant has sworn that he does not "speak, read and write English", he declared, when signing the form, that he had "read and understood the information supplied to [him] in this application form." I assume, therefore, that the agent, or someone acting on the agent’s behalf, translated the contents of the application form to the appellant. As noted earlier in these reasons the appellant had requested that correspondence about his application should be sent to his residential address which had been provided in section B of the form. However he also authorised his adviser (who had been identified in Section C of the form) "to receive correspondence in connection with the review". Adjacent to the authorisation to send correspondence to the adviser was a statement that: "A copy of all correspondence will be sent to the residential address set out in SECTION B." This would have conveyed to the appellant that copies of all correspondence, sent by the Tribunal to his adviser, would also to be sent to him. This is what occurred when the Tribunal, in November 2004, acknowledged receipt of the application. It did not, however, occur when the letter of invitation to attend a hearing was sent in February 2005. That letter was sent only to the agent. No copy was sent to the appellant. The agent was so advised. The letter advised the agent that:

"As the authorised recipient, all correspondence on this case will be sent to you as requested by [the applicant]. Please note that [the applicant] has not been sent a copy of this letter. It is important that you tell the review applicant about the contents of this letter."

This advice to the agent was plainly inconsistent with the advice previously given to the appellant. Even if the appellant had not ticked the box asking that the Tribunal correspond with him at his residential address, he would have been entitled to expect that he would receive copies of letters relating to his application which were sent to his agent. There was, however, no evidence before the learned Federal Magistrate that the appellant had failed to attend the hearing because he was expecting to receive personal notification of the date, time and place of the hearing.

11 The question on this appeal is whether the learned Magistrate erred in failing to hold that the failure of the Tribunal to advise the appellant personally of the details of the hearing constituted a jurisdictional error which vitiated the Tribunal’s decision. I have given this matter anxious consideration because of the confusing statements and contradictions to which I have referred. I have, however, come to the view that no jurisdictional error occurred by reason of the failure of the Tribunal to send a copy of the hearing invitation to the appellant. The Tribunal was under an obligation to invite the applicant to appear before it: see s 425(1) of the Act. The invitation had to include notice of the date, time and place of the hearing: see s 425A(1). The Act provided for notice to be given by one or more prescribed methods: see s425A(2)(a). One such method was for an officer of the Tribunal to send the notice by prepaid post addressed to an "authorised recipient" nominated by the applicant: see s 441A(1), (4); s 441G(1). If an authorised recipient is nominated by an applicant the Tribunal is required to send the notice to that authorised recipient "instead of the applicant": see s 441G(1). If the notice is given to the authorised recipient "the Tribunal is taken to have given the document to the applicant": see s 441G(2). The Tribunal can, if it wishes, give the applicant a copy of the notice: see s 441G(2). If a notice is given to an authorised recipient and the applicant does not appear before the Tribunal at the appointed time and place the Tribunal "may make a decision on the review without taking any further action to allow or enable the applicant to appear before it": see s 426A(1). Sections 425, 425A and 426A of the Act all fall within Division 4 of Part 7 of the Act. Division 4, according to s 422B(1), constitutes an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals.

12 In this case, the Tribunal met its statutory obligations when it sent the notice of hearing to the migration agent, nominated by the applicant as the authorised recipient of correspondence relating to his application to the Tribunal. The Tribunal could but was not obliged to, have sent a copy of the invitation to the appellant. There was no evidence before the learned Magistrate which suggested that the notice had not been received by the migration agent. The exchanges between the Tribunal officer and the migration agent shortly after the hearing date suggest rather that the agent received the notice but failed to advise the appellant about the hearing. An opportunity was offered to the agent to provide submissions to the Tribunal before a decision was made but no such submissions were forthcoming. In these circumstances, in my view, the Tribunal did not fail to meet the notice obligations imposed on it and there was, in any event, no denial of procedural fairness. None of the grounds of appeal has been made out.

13 The appeal should be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated: 12 February 2007

Appellant:	Appellant appeared in person
Counsel for the Respondent:	Mr Z. Chami
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	12 February 2007
Date of Judgment:	12 February 2007