Migration Act 1958 (Cth), ss.91R, 420, 425, 425A, 474, 477(1) (a)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

SZFKF v Minister for Immigration (2005) FMCA 1152

NALQ v Minister for Immigration, Multicultural and Indigenous Affairs (2004) FCAFC 121

Applicant WAFF of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs (2004) HCA 62

SZBNS v Minister for Immigration, Multicultural and Indigenous Affairs (2005) FMCA 458

Minister for Immigration, Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 198

Mazhar v Minister for Immigration, Multicultural and Indigenous Affairs (2000) 182 ALR 188

VNAA v Minister for Immigration, Multicultural and Indigenous Affairs (2004) FCAFC 134

WHAR v Minister for Immigration, Multicultural and Indigenous Affairs (2004) FCR 106

MINISTER FOR IMMIGRATION & MULTICULTURL & INDIGENOUS AFFAIRS

(1)

That there be an order in the nature of certiorari, bringing into this Court to quash the decision of Refugee Review Tribunal made on

28 May 2003.

(2)

That there be an order in the nature of mandamus requiring the Refugee Review Tribunal to review according to law the decision made by a delegate of the First Respondent Minister on 16 May 2002, to refuse a Protection visa to the Applicant.

(3)

That there be no order for costs.

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

This is an application for review of a decision of the Refugee Review Tribunal that was made on 28 May 2003. There was a hearing scheduled to take place at 11:30am on Tuesday, 20 May 2003 but the Applicant did not attend the hearing. The Tribunal made a decision to determine the application on the evidence before it, without providing the Applicant with a further opportunity to give oral evidence at a hearing. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Protection visa. The Tribunal handed down its decision on 24 June 2003.

The Applicant has commenced proceedings for a review by means of an application filed on 20 December 2004. The Applicant filed the Amended Application on 26 April 2005. The Respondent Minister filed a Notice of Objection to Competency on 12 January 2005. That Notice said that the Respondent Minister objected to the jurisdiction of this Court to try this application under the Judiciary Act 1903 (Cth), in relation to a decision under the Migration Act.

The ground given is that sub-section 477(1) (a) of the Migration Act 1958 provides that an application for review must be lodged with a registry of the Court within 28 days of the notification of the decision. That notice was accompanied by an affidavit sworn that same day. In that affidavit by Mr John Bird, a solicitor acting for the Minister, it was pointed out that the Refugee Review Tribunal file indicated that the Applicant was notified of the decision by letter on 24 June 2003.

A copy of that letter was annexed to the affidavit.

The affidavit also pointed out that an application for judicial review of the decision was not filed until 20 December 2004. Quite clearly, that application was not filed within 28 days of the date of notification of the decision. The Applicant's Amended Application seeks orders to the following effect:

i) A declaration that the decision of the Refugee Review Tribunal was not a privative-clause decision within the meaning of s.474 of the Migration Act.

ii) Removing the Tribunal's decision.

iii) A declaration that the Tribunal's decision is void and of no effect.

iv) Alternative to (i) and (ii), an order of review of the Tribunal's decision pursuant under s.5 of the AD (JR) Act.

v) A writ of prohibition directed to the First Respondent preventing action upon or enforcing the Tribunal's decision.

vi) The Respondents pay the Applicant's costs.

Quite clearly, the Applicant has had some assistance in preparing his Amended Application. It also appears, however, that the Amended Application as it is filed seems to have suffered, presumably in the travels of a draft from a legal advisor to the Applicant. Order (ii) that is sought:

is presumably intended to be an order in the nature of mandamus, requiring the Tribunal to reconsider the Applicant's application. In any event, a writ of prohibition is sought and I am quite satisfied that the application is, as it is said to be, an application made under s.39B of the Judiciary Act (1903).

There are three grounds given in the Amended Application. The Applicant conceded that the principal ground for his application was that contained in ground (2). I will deal briefly with grounds (1) and (3). Ground (1) says:

The Second Respondent committed jurisdictional error of law by misinterpreting the definition of persecution set out in s.91R of the Migration Act 1958 and as a result, asked itself the wrong question in purporting to determine whether Australia had protection obligations in respect of the Applicant.

There are no particulars provided in respect of this ground and the Applicant did not make any submissions relevant to the establishment of this ground in my view. The assertion without more, that the Tribunal asked the wrong question in respect of s.91R of the Migration Act, does not establish a jurisdictional error.

Ground 3 says:

The Second Respondent based much of its findings on independent country information which was not directly relevant.

This ground was supported by particulars. The particulars are said to be these:

On page 96 of the Green Book is stated:

The Tribunal also accepts that the DFAT advice CX45550 may well have confused the Applicant's religious group with a more militant group with a similar name.

Despite this acceptance, the RRT continued with adverse independent information.

To my mind, this is no more than a challenge to a factual finding made by the Tribunal. It is a request to conduct a merits review of the Tribunal's decision. It is well established that a Court conducting a judicial review does not conduct a merits review of the Tribunal's decision. I refer to Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1996] HCA 6; (1996) 185 CLR 259

It is quite clearly the second ground that sets out the basis and the real thrust of the Applicant's application. It is important to set out the ground and the particulars provided in full. The Applicant says:

The Applicant had a migration advisor at the time the hearing was scheduled. The RRT had record of the advisor; however, no notification was made with respect to hearing. The mailing address provided on RRT application form was address of migration agent. Migration agent was investigated by MARA at time of Applicant's invitation to hearing, i.e., 2 April 2003. The Applicant's residential address was changed on 7 August 2001, which was prior to RRT application.

The ground then refers to certain documents at pages 99 and 74 of the Court Book. The ground goes on to state:

After having mail returned "Unknown at the address", the RRT checked the DIMIA file. From the DIMIA file (page 24 Green Book) it is clear the postal address provided on RRT application form was the same postal address as the advisor. It was the responsibility of the RRT to take all reasonable steps to contact the Applicant. This is particularly so in the current case, where the advisor was under review by MARA.

I would comment at this stage that the propositions contained in the final two sentences of ground (2) do not set out the current state of the law.

The history of this matter, so far as it is relevant, shows some unfortunate events. On 1 June 2000, the Applicant submitted an application for a Protection Visa. In that application, he claimed a well-founded fear of persecution on the basis of his religious views. He is a citizen of Egypt and is a strong supporter of the Muslim faith. He claims to be a member of a Muslim organisation called the Jama'et Al Tableegh. He says that group is presently banned in Egypt. He claimed that if he were to return to Egypt, he would be required to shave his beard and, amongst other things, accept a life of humiliation, indignity and subjugation.

In his application for a protection visa, the Applicant gave his residential address as 5/175 Haldon Street, Lakemba, New South Wales. He appointed a migration agency as his agent for the purpose of the Protection visa application. The migration agent concerned practised under the business name Pacific Migration Consultancy.

It gave its address as PO Box 547, Lakemba, NSW 2195. The Department of Immigration, Multicultural and Indigenous Affairs, when dealing with the Applicant's Protection visa application, forwarded correspondence both to the Applicant at his residential address but also care of the Applicant's migration advisor's address.

The application for a Protection visa was refused. The Applicant lodged an application for review with the Refugee Review Tribunal. The application was signed on the back by the Applicant on

22 May 2002. It appears to have been received by the Refugee Review Tribunal on 5 June 2002. In that application, the Applicant gave his then home address in Haldon Street, Lakemba and gave his mailing address as PO Box 547, Lakemba, NSW 2195, which is the postal address of the migration agent, Pacific Migration Consultancy.

Regrettably, the Applicant's home address that appeared on the application for review was no longer correct. The Applicant had moved from that address in August 2001. The Applicant said that his migration advisor used the old address and the Applicant signed the application without reading it. In fairness to the Applicant, he said that his English was not particularly good at that stage; he relied on his migration advisor. This was quite clearly unwise. The Applicant has provided the Court with more up to date residential addresses and postal address, but those addresses were not provided to the Refugee Review Tribunal.

The Tribunal wrote to the Applicant at the post office box number provided and sent a copy of the letter to the Applicant at the old home address. That letter told the Applicant that the Tribunal had considered the material before it in relation to his application, but was unable to make a decision in his favour on that information alone. The letter invited the Applicant to attend a hearing of the Tribunal and give oral evidence and present arguments.

The hearing was scheduled for 11:30am on Tuesday, 20 May 2003. The Applicant did not attend the hearing. A letter addressed to the Applicant was returned unclaimed, marked "Unknown at address". That letter appears to have been received by the Tribunal on 8 April 2003. The Tribunal prepared a check list after the hearing date. A copy of that document, dated 27 May 2003 appears on page 74 of the Court Book.

When the Applicant did not attend the hearing of the Tribunal, the Tribunal members made a decision to determine the application on the evidence before the Tribunal, without giving the Applicant any further opportunity to give oral evidence and present arguments. At page 82 of the Court Book, the Tribunal set out its reasons for that step. The passage goes on to page 83:

The letter sent to his address for service was not returned. The letter sent to his residential address was returned marked, "Unknown at this address". The Applicant does not have an advisor and has not provided a telephone number. On

27 May 2003, the Tribunal checked that the letters were correctly addressed, using the latest information provided to the Tribunal.

On 27 May 2003, DIMIA files were also checked and they confirm that the Department had no more recent address for the Applicant, and that according to DIMIA movement records, the Applicant had not departed Australia. No response has been received and the Applicant did not attend the scheduled hearing. In these circumstances, the Tribunal is satisfied that it has discharged its obligation to provide the Applicant with the opportunity to give oral evidence and present arguments before it.

After a consideration of the material, the Tribunal commented that without further evidence, the Tribunal could not be satisfied that there was a real chance that the Applicant might face persecution in the foreseeable future for his religion, or for any other convention reason were he to return to Egypt. The Tribunal affirmed the decision not to grant a protection visa.

For the Respondent, Mr Bird pointed out that the Tribunal had, in his submission, complied with the obligations imposed upon it to invite the Applicant to attend a hearing. He referred the Court to the provisions of s.425 and s.425A of the Migration Act. He submitted that no mention had been made in the application to the Refugee Review Tribunal about there being an advisor. He further submitted that s.422B set out a code of procedure that is to be followed by the Refugee Review Tribunal, which is an exhaustive statement of the natural justice hearing rule, the rules of natural justice. He submitted that there was no jurisdictional error or procedural error.

In reply, the Applicant said that the Tribunal should have looked for his address by any means, because the situation was very delicate. The fact is that the application submitted by the Applicant's migration advisor was defective, in that it provided a residential address that was no longer correct and the Applicant had done nothing to check the correctness of anything contained in the application.

It is relevant to consider the provisions of the Migration Act that apply to this situation. Section 425(1) of the Act says:

The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and to present arguments relating to the issues arising in relation to the decision under review.

Section 425A provides:

i)

If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

ii)

The notice must be given to the applicant (a) except where paragraph (b) applies by one of the methods specified in s.441A or (b) if the applicant is in immigration detention by a method prescribed for the purposes of giving documents to such a person.

iii)

The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

iv)

The notice must contain a statement of the effect of s.426A.

24.

I acknowledge my gratitude to my colleague, Federal Magistrate Barnes, for her analysis of the statutory provisions in s.425 and s.425A of the Act. Those are set out in SZFKF v Minister for Immigration (2005) FMCA 1152. At paragraph 37, her Honour points out:

Under s.414 of the Migration Act 1958, the obligation of the Tribunal upon receiving a valid application for review is to review the decision under challenge. CNLAQ and the Minister for Immigration, Multicultural and Indigenous Affairs (2004) FCAFC 121 at paragraph 26.

Section 420(1) provides that in carrying out its functions under the Act:

The Tribunal is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

It is not bound by technicalities, legal forms or rules of evidence but must act according to substantial justice and the merits of the case; s.420 (2).

Critically, as McHugh, Gummow, Callinan and Heydon JJ pointed out in Applicant WAFF of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs (2004) HCA 62 at [26], the Migration Act 1958 has:

Established important requirements of a substantive kind, several of which were designed to ensure that applicants for review received procedural fairness.

In paragraph 38 Her Honour goes on to point out that s.425A of the Act appears in Div 4 of Pt (vii) of the Act, which regulates the conduct of the review by the Tribunal. The critical aspect of the Tribunal's duty to review the delegates' decision in this instance is the duty in sub-section 425(1), to invite the Applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. See Applicant NAFF of 2002, at paragraph 27 and SZBNS v Minister for Immigration, Multicultural and Indigenous Affairs (2005) FMCA 458, at paragraph 14.

Compliance with s.425 has been held to be a precondition to the valid exercise of the Tribunal's jurisdiction Minister for Immigration, Multicultural and Indigenous Affairs v SCAR (2003) 198 LR 293, at [38]. The Tribunal's obligation under s.425 is to issue an invitation to the Applicant to attend a hearing which must be "real and meaningful" and not a "hollow gesture" or an "empty shell". See SCAR (supra) at [33] - [37]; NALQ (supra) at [30] and see also Mazhar v Minister for Immigration, Multicultural and Indigenous Affairs (2000) 182, ALR 188 at [31].

At [39] of SZFKF, Barnes FM went on to say that it is apparent from a consideration of Div 4 of Pt (vii) of the Act that s.425A contains the mechanism by which the required invitation to appear under s.425 is to be extended. In VNAA v Minister for Immigration, Multicultural and Indigenous Affairs (2004) FCAFC 134 at [14], Justices Sundberg and Hely referred to the need to read s.425 and s.425A together, and stated in relation to s.425A:

If the Tribunal invites the applicant to appear, it must be done in the manner there set out, namely by notice specifying the date, time and place at which the applicant is to appear.

At paragraph 46 of the decision, Her Honour says:

It is the case that some delay in the review process could result, if in every case the Tribunal is required to give the period of notice referred to in s.425A(3) to an applicant whenever a Tribunal delays or is late for a scheduled hearing.

However, as McHugh J pointed out in SAAP (supra) at [58], the s 420 legislative object of providing a mechanism of dealing with review applications that is efficient and quick:

Should not be interpreted to detract from the obligation to deal with them fairly.

Section 422B of the Act provides that the subdivision is an exhaustive statement of a natural justice hearing rule in relation to the matters it deals with. See NALQ at [27] and see WHAR v Minister for Immigration, Multicultural and Indigenous Affairs (2004) FCR 106. Her Honour in SZFKF notes that the provisions of s.422B clearly indicate a legislative intention to confine the operation of principles of natural justice. Her Honour goes on to point out, however, consistent with the approach of the High Court in SAAP:

The purpose of the provisions in Div 4 of Pt (vii) is to provide procedural fairness to applicants in determining whether a decision of a delegate of the Minister should be affirmed.

In my view, her Honour's statements of the law reflect the situation in the law as it stands today. Whilst s.422B does indicate a legislative intention to restrict the natural justice hearing rule, the fact that the legislature has provided such an inflexible system indicates an intention of the legislature that this system must be followed. It is fair to say that the hearing invitation must not be an empty one, but one which allows the applicant to attend before the Tribunal to give evidence.

Notwithstanding the fact that the Applicant's application for review contained a significant defect in the provision of the incorrect residential address, the Tribunal had the obligation to follow its own procedures. Whilst at page 82 of the Court Book, the Tribunal member noted that the letter sent to the Applicant's residential address was returned unclaimed, it is only partly correct to say that the Applicant did not have an advisor and had not provided a telephone number.

The Applicant's application had provided the advisor's postal address and it is part of the procedure of the Tribunal, as set out at page 74 of the Court Book, to go through a check list so that the Tribunal could be satisfied that proper efforts had been made to notify the Applicant of the hearing. The check list, page 74, contains at Pt (ix):

Date: Advisor contacted for more recent address. Record placed on file with the answer "Not applicable".

Date: DIMIA file check for more recent address, 27 May 2003.

Quite clearly, the Tribunal had checked its own file and checked the application for review. It appears, however, that the check of the application for a protection visa, where the name of the Applicant's migration advisor and, importantly, the postal address of that migration advisor, was either not checked or not checked thoroughly enough.

A thorough check would have revealed that the Applicant's postal address, as given in the application for review, and the postal address that appeared in the application for a Protection visa were one and the same and that that was the postal address of the Pacific Migration Consultancy. Whether a check with the Pacific Migration Consultancy, if that correlation had been ascertained, would have provided the Tribunal with any further information about contact with the Applicant is a question that remains unanswered.

It may seem that a thorough examination of the Applicant's original Protection visa in order to ascertain that fact may be a counsel of perfection, but the requirements in Div 4 of Pt (vii) of the Act impose an inflexible system. It was thus not correct to say that the Applicant did not have a migration advisor. Whilst it appears that the application apparently prepared by that advisor was defective and that the Applicant had either not checked or not been able to check the address details, in my view the Tribunal did not take the steps required of it to notify the Applicant under s.425 of the Migration Act.

The attendance at a hearing of the Refugee Review Tribunal is fundamental to the review process. If the Tribunal is to comply with its obligations when it exercises its power under s.426A of the Act, not to take any further steps to afford the Applicant the opportunity to attend a hearing and give oral evidence and present arguments, the Tribunal must, to my mind, comply strictly with the obligations placed on it. The consequences under s.426A are so serious that the Tribunal must take the steps to comply not only with the legislation, but with its own procedures designed to enable it to comply with the legislation.

I am of the view that the Tribunal has fallen into jurisdictional error. Where there is a jurisdictional error, the Tribunal decision does not attract the protection of the privative clause provisions of s.474 of the Migration Act. If a decision is not a privative clause decision, then the time limits under s.477 (1) (a) of the Act do not apply. In my view, I consider, therefore, that the application must be upheld.

I make the following orders.

i)

That there be an order in the nature of certiorari bringing into this Court to quash the decision of Refugee Review Tribunal made on 28 May 2003.

ii)

That there be an order in the nature of mandamus requiring the Refugee Review Tribunal to review according to law the decision made by a delegate of the First Respondent Minister on 16 May 2002 to refuse a protection visa to the Applicant.

iii)

I note that the Applicant is not legally represented and there is no solicitor on the record. Accordingly, I make no order for costs.

iv)

I require a transcript of my reasons for this decision. The application is removed from the list of cases awaiting finalisation.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Scarlett FM