Dranichnikov v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2000-02-07|Before: Kiefel J

THE COURT ORDERS THAT: 1. The application for review of the decision of the Department of Immigration and Multicultural Affairs is dismissed.

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Jurisdiction of the Tribunal on Second Application 18 If the Tribunal's decision dated 11 August 1998 was one which finally determined the first application for review of the delegate's decision, it did not have jurisdiction to entertain a further application nor to reconsider or review its own decision. The application sought a review of the delegate's decision. The applicant's purpose was to have his further material taken into account and a fresh determination issue. Whilst s 475(1)(b) Migration Act provides that the decisions of the Refugee Review Tribunal are judicially reviewable decisions, a decision by it to reconsider an application is not one authorised by the Act, which confers power on the Tribunal only to determine, in a final way, a substantive application: Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301, 309-310. There are procedures and remedies by which the Court could require a Tribunal to hear, or continue to hear, a matter which it was required to determine. If the Tribunal has nothing further to determine, it has no power to re-open and re-consider that decision: Jayasinghe 317, and the Court could not order that it do so. The issue therefore is resolved by whether the first application for review was finally determined. 19 The applicant submits that the application was not finally determined because the Tribunal, at the time it made the determination, was to receive further material from him. The facts relevant to this question are relevant also to the issue of denial of procedural fairness in connexion with the substantive application. The applicant's evidence was that the solicitor acting for him in the period prior to the hearing by the Tribunal did not send all of the applicant's documents to the Tribunal. The Tribunal was advised, when the application was lodged, that some further material might be lodged sometime after. That material was identified as documents from the departmental file, which might become available following a request for that information. The material which the applicant sought to put before the Tribunal, as far as I could discern, comprised further medical evidence relating to the attack upon him and further evidence of threats to his family and their fear of harm. At various points the applicant alleged that the Tribunal declined to consider his further material, but I understood this to refer to the Tribunal's refusal to deal with his second application. 20 The Tribunal's reasons of 11 August 1998, do not disclose any request for the submission of further material and the applicant's evidence does not suggest such a request was made or that an adjournment was sought. There is no suggestion that the Tribunal agreed to await any further documents or submissions. The applicant says that after the hearing he rang his solicitor and asked him to contact the Tribunal concerning the documentation. The solicitor advised him to await the decision of the Tribunal, as the hearing had seemed to go well. The applicant said in evidence that he still wanted to send the documents himself, but the Tribunal determination was made quickly after the hearing, and before he could do so. He then decided to go to the Tribunal to see about having his additional documents considered. 21 The applicant's contentions require consideration of the questions whether the Tribunal's decision was such that it could not be revisited; and whether the Tribunal was required, but failed, to give the applicant an opportunity to present further evidence. The first question is determined by reference to the Migration Act and the powers given to the Tribunal. 22 Application may be made to the Tribunal to review decisions of the kind referred to in s.411 (and s.412). It has power to affirm, vary and remit the decision for further consideration (s.415). That decision, the relevant findings, and the reasons for it, are set out in a written statement which is either handed down or otherwise notified to the parties (see ss 430-430D). That stands as a decision on the matter. There is no procedure for reconsideration by the Tribunal after that occurs, although the Minister may substitute another decision, if the public interest requires (s.417); that is not relevant here. Section 416 does speak of a further application, for review of an RRT - reviewable decision, where an application for review has already been determined, but the section is to be understood as providing an opportunity to make a further application seeking the same relief, where facts and circumstances relevant to the original application have come to light after the first was determined. This function is to be distinguished from a request that the Tribunal reopen or review the original decision, an option that is not available: Jayasinghe v Minister for Immigration and Multicultural Affairs (1997) 76 FCR 301. The application here falls into the latter category. 23 The decision would, under usual administrative law principles, nevertheless be liable to be set aside if the Tribunal had not acted fairly towards the applicant in the presentation of his case. Section 476(2)(a) of the Migration Act, however, does not permit this Court to consider any breach of natural justice as a ground for review. I consider, in any event, that the facts do not disclose any want of procedural fairness. The course of events, outlined above, discloses a consideration by the applicant as to whether to put material before the Tribunal, but does not establish that the hearing was understood to be of only part of the applicant's case, and that the Tribunal was awaiting receipt of further information. It had not been asked to receive such material. 24 The applicant also refers to "estoppel" in his material, although it is not clear to what matter it relates. I have, in any event, considered it in connexion with this topic. That is to say, I have considered whether the Minister could in some way be prevented from denying the Tribunal's ability to deal with the second application for review, because of the advices given by the unidentified officer of the Tribunal. Where it is made plain by a statute, as it is here, that a jurisdiction was not intended to be exercised by a Tribunal, it cannot be provided by this means: Waitemata Electric Power Board v King Builders Ltd [1993] 1 NZLR 312; Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386, 392. 25 The application for review of the decision communicated on 21 January 1999 must therefore be dismissed. It is necessary, then, to turn to the substantive application and the application of s 478.

The Section 478 Time Limit 26 Section 478 Migration Act 1958 (Cth) provides: "(1) An application under section 476 or 477 must: (a) be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and (b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision. (2) The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b)." 27 There is a considerable line of authority in this Court which confirms that the provisions of s 478 operate to deny any jurisdiction to extend time, irrespective of whether the applicant has a good reason for not having lodged an application for review within time: see eg Nirmalan v Minister for Immigration and Multicultural Affairs [1998] FCA 672. Further, for the reasons referred to above, jurisdiction cannot be conferred on this Court by the application of the doctrine of estoppel: Wang v Minister for Immigration and Multicultural Affairs at 392. It has however been held in some cases that a notification of the decision has not been effected and s 478 does not come into play. 28 The inapplicability of an estoppel, to prevent the Minister from relying upon the time limit, would seem to me to preclude resort to representations made by the Tribunal Officer, those implicit in the advices as to the procedure which might be followed in the Tribunal. It is therefore unnecessary to deal with the question of the applicant's reliance. 29 Representations or advices as to time limits, or an applicant's right to apply, may however, affect the operation of s.478, or more particularly, in answer to the question whether an applicant has been "notified of the decision" for the purposes of s.478. The purpose of the section is to impose a limit upon the time for application by having time run from 28 days of notification. In Wang v Minister for Immigration and Multicultural Affairs (393-395), Merkel J had regard to the purpose of the section and concluded that, whilst there was no obligation on the Tribunal to notify of rights to review, or time limits with respect to them, a notification of the decision by the Tribunal, which is comprehended by the Act for the purposes of s.478, which includes and is accompanied by an untrue statement about review rights, substantially frustrates or negates the function of notification (393). An alternative construction of s.478 in its statutory context, and having regard to its role, is that a notification, for the purposes of that section, must be a notification of the decision which does not frustrate or negate the entitlement of the person notified to apply to the Court (394). 30 In this case a question arises because the Tribunal advised the applicant, in its letter of 12 August 1998, that if he wished to appeal to the Federal Court, he must apply "within thirty-five (35) days after the date of this letter". The advice was incorrect. Section 478 refers to time running from notification. The advices may have been based upon a view of the combined operation of the requirement that twenty-eight days from notification be allowed to run before an application for review is barred by the statute, and the provisions of reg 5.03 of the Migration Regulations 1994 (Cth). That regulation applies to a document sent by a Tribunal to an applicant under the Act, amongst other persons, and provides that, where a document is forwarded from and to an address in Australia, and is done so within seven days after the date of the document, it is deemed to have been received seven days after the date of the document. If the regulations were to operate with s.478, the applicant might be deemed to have received the determination on 19 August and not when he in fact received it, 14 August 1998, and so work to his advantage. That will not always be the case. Although it is not necessary to express a concluded view upon the matter (as to which see generally Sook v Minister for Immigration and Multicultural Affairs (1999) 86 FCR 584), s.478 must be taken to refer to actual notification where it can be shown, and reg 5.03 is expressed to be for the purpose of and subject to the Act. The effect of the advices here was, potentially, to mislead the applicant as to the time available for applying for review of the Tribunal decision, thereby frustrating the intent of s.478. It follows, in my view, that there was no notification on 14 August 1998. 31 The applicant's case was that he could not be taken to be notified until 21 January 1999, when it was first made plain to him that the Tribunal could not entertain his second application. In that event, the application for substantive review was lodged in time. The submission does not address the advices communicated on 14 August 1998. They could not in fact be said to have misled the applicant who, it seems to me, had no intention of applying to the Court whilst he believed he could pursue an alternative course for merits review. That would not seem to be a relevant consideration. The construction referred to above has the result that if the recipient might be misled it cannot be said that there was "notification" for the purposes of the section. It proceeds upon the basis that there might otherwise be injustice, and does not seem applicable to a situation where it would not have mattered what time limit was advised. Since certainty requires that there be one construction of a statutory provision, an applicant might only be held to be debarred from relief on some other basis when the notification was inoperative. That possibility was not the subject of submissions before me. In these circumstances, it seems necessary for me to deal with the matter on the basis that there was no notification, because of the potential the advices had to mislead, and then to enquire when that was removed, so that proper notification could be said to have been effected. When the applicant received the Tribunal's advices of 21 January 1999, he would have been in no doubt that the only course of action which had been open to him was the application to the Court of which the letter of 12 August 1998 spoke. This accords with his submissions. It would follow that the application for review (of the substantive application) was within time. The objection to competency is overruled.

The substantive application 32 I have dealt with the allegation of denial of procedural fairness. A claim of improper purpose in the making of the decision was also made, but upon analysis it amounts to little more than the applicant contending that the wrong result was reached. It does not relate to the ground as it is generally understood, nor to it as dealt with by s.476. 33 The applicant also makes reference to the prospect of bias in the Tribunal. The statements made would not support such an inference and they were not made by the Tribunal member who determined the applicant's application. 34 As to the conclusion reached by the Tribunal that the applicant did not satisfy the requirements for refugee status, my view is that it cannot be impeached for error of law. The Tribunal had regard to the fear of harm expressed by the applicant in his application, which arose out of concerns that he and his family might become victims of crime. The Tribunal listed a number of decisions in which it had been held that, if the criminal conduct feared is not motivated by a Convention reason, the claims have no nexus with the Convention (Thalary v Minister for Immigration and Ethnic Affairs [1997] FCA 201, Magyari v Minister for Immigration and Multicultural Affairs [1997] FCA 417 and Velmurugu v Minister for Immigration and Multicultural Affairs & Anor (1997) 44 ALD 253 as well as Maningat v Minister for Immigration and Multicultural Affairs [1998] FCA 443 and Jarrin v Minister for Immigration and Multicultural Affairs [1998] FCA 765. To these may be added Chand v Minister for Immigration and Multicultural Affairs [1999] FCA 383. It is apparent from the reasons of the Tribunal that it considered the evidence could not support a finding that it was for reasons of membership of his social group that the applicant might reasonably fear harm. Such a finding was open to the Tribunal. 35 The Tribunal also observed that the applicant had been subjected to one occasion of harm. It had not been repeated. It was not necessary for the Tribunal to go further, given its conclusions as to whether the actions of which he complained could be attributed to a Convention reason. Had the applicant established the requisite motivation against him or the group to which he belonged, he would have had to go further and satisfy the requirement of persecution (as to which see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 388).

Bridging Visas 36 The applicant applied for a new Bridging Visa A on 16 March 1999, after commencing proceedings in this Court on 15 February 1999. The Department of Immigration and Multicultural Affairs refused that application. In its letter of 26 March 1999, the departmental officer advised that the earlier Bridging Visa A had ceased on 16 September 1998, 28 days after the "notification" of the decision of the Refugee Review Tribunal. As the applicant was not a present holder of a Bridging Visa A he could not satisfy the criteria for another such visa under Sch 1, Item 1301, subclause (3)(d) of the Migration Regulations 1994 (Cth). I have held that notification did not occur until 21 January 1999. The applicant would then have met the particular criteria so long as the Bridging Visa E, which was granted on 29 January 1999, did not have the effect of cancelling the Bridging Visa A. In this respect the Minister relied, in submissions, on s.82(3) which provides that a bridging visa ceases to be in effect if another visa comes into effect. This does not appear to have been a matter relied upon by the Department. In any event it seems to me that the submission failed to take into account the provisions of s.68(4) which provides: (4) A bridging visa (the reactivated bridging visa), held by a non-citizen, that has ceased to be in effect under subsection 82(3), will come into effect again during the visa period for the visa if: (a) the non-citizen does not hold a substantive visa that is in effect; and (b) either: (i) the non-citizen does not hold any other bridging visa; or (ii) the reactivated bridging visa is determined, in accordance with the regulations, to be the most beneficial of the bridging visas held by the applicant. The regulations list a Bridging Visa A as most beneficial. 37 I have dealt with the submissions relating to error of law. As the Minister also pointed out, however, no order can be made in these proceedings which are not within the jurisdiction of the Court. The decision of the Department was reviewable by the Migration Review Tribunal (see s.337 ("Part 5 reviewable decision") and s.338(1)) and therefore not by this Court: see s.475(2)(b). Conclusions and Costs 38 The applicant fails on his substantive application, but the Minister's objection to competency is overruled. Since that took up the larger part of the proceedings I am presently disinclined to order costs against the applicant. I will, however, hear the parties further on this question. 39 The application with respect to the Bridging Visa A must be dismissed for want of jurisdiction. I certify that the preceding thirty-nine (39) paragraphs Are a true copy of the Reasons for Judgment of herein Of the Honourable Justice Kiefel. Associate: Date: 7 February 2000 Applicant: In Person Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 28 September 1999 Date of Judgment: 7 February 2000

Migration Act 1958(Cth)ss 68(4), 82(3), 337, 411, 412, 415, 417, 430-430D, 475(2)(b), 476(2)(a), 478

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