Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.425, 425A, 426A, 441A, 441C, 441G

Migration Regulations 1994 (Cth) Reg 4.35D

Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 cited

VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 cited.

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24 cited.

SZFKF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1152 followed.

SZFIH v Minister for Immigration & Multicultural & Indigenous Affairs (28 November 2005, Smith FM) not followed.

SZBAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 790 distinguished.

SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026 distinguished.

SZEGU v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1023 cited

NBBU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 767 cited.

SZFHC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1399 referred to.

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

(1)

That the Refugee Review Tribunal is joined as Second Respondent to the Application.

(2)

That there be an order in the nature of certiorari to quash the decision of the Refugee Review Tribunal ("the Tribunal") made on

26 November 2004;

(3)

That there be an order in the nature of mandamus requiring the Tribunal to review according to law the decision made by a delegate of the Minister on 6 May 2004 to refuse a protection visa to the Applicant.

(4)

That the First Respondent is to pay the Applicant's costs in the sum of $288.00.

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

This is an application for review of a decision of the Refugee Review Tribunal made on 26 November 2004, in which the Tribunal affirmed a decision of the delegate of the Minister for Immigration & Multicultural & Indigenous Affairs not to grant a protection visa to the Applicant.

The Applicant did not attend the Tribunal hearing, which was scheduled to take place on 24 November 2004. The Tribunal proceeded with the hearing because, as it set out at page 81 of the Court Book:

On 24 November 2004 the (applicant's migration) adviser informed the Tribunal, orally and then in writing, that the Applicant does not want to come to a hearing, and thereby consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.[1]

The Tribunal noted that the Applicant claimed to be a citizen of Mongolia who had arrived in Australia on 21 February 2004. She lodged an application for a protection (Class XA) on 5 April, but the Minister's delegate refused the application on 6 May 2004. On 8 June 2004 the Applicant applied to the Refugee Review Tribunal for a review of that decision.

The Tribunal also noted that it had written to the Applicant on

6 October 2004, advising that it had considered all the material before it relating to her application but was unable to make a favourable decision on that information alone. The Tribunal invited the Applicant to give oral evidence and present arguments at a hearing on

9 November 2004. On 20 October, the Applicant, through her migration agent, advised the Tribunal in writing that she would attend the hearing. The Tribunal rescheduled the hearing to 25 November 2004, because of difficulty in engaging the services of an interpreter in the Mongolian language.

The Tribunal noted that the Applicant claimed that she had left Mongolia because she feared persecution for reason of a particular social group. The Applicant claims to be bisexual. The Applicant claimed to have formed a relationship with another girl of lesbian persuasion at the age of 15. They were expelled when the teachers found out about their relationship, but were later allowed to complete their studies. The Applicant claimed that she and her friend had been beaten up in a bar in Ulaan Baatar and the other woman had been raped.

The Applicant claims that if she were to return to Mongolia she fears that she would be subject to discrimination and social exclusion. She fears that she would not be able to obtain employment because the police keep a list of homosexuals, lesbians and bisexuals and those people are constantly being monitored by the police.

The Tribunal noted that the delegate's decision included independent country information to the effect that homosexuality is not illegal in Mongolia. Mongolia's first gay and lesbian group, Tavilan, was formed in April 1999 to create a social network and encourage better understanding amongst the general public.

The Refugee Review Tribunal accepted that the Applicant is a citizen of Mongolia. The Tribunal noted the Applicant's claim to be a lesbian or a bisexual and her claimed fear of persecution for that reason. The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution within the meaning of the Refugees Convention if she were to return to Mongolia.

The Tribunal gave these reasons:

This is because the Tribunal finds the Applicant's claims very general and inconsistent, and because the Tribunal has not had the opportunity to test her claims.[2]

The Tribunal was not satisfied, on the evidence before it, that the Applicant had a well-founded fear of persecution within the meaning of the Convention if she were to return to Mongolia.

The Tribunal affirmed the delegate's decision not to grant a protection visa to the Applicant.

The Applicant filed her application under s.39B of the Judiciary Act 1903 (Cth) on 14 January 2005. She filed an Amended Application in compliance with a direction of this court on 25 November 2005.

The Amended Application essentially seeks orders in the nature of prohibition, certiorari and mandamus. The Applicant relies on these four grounds:

a) Tribunal made jurisdictional error in making decision on my application.

b) Tribunal's decision is legally wrong.

c) Tribunal's decision is unfair,

d) Tribunal's decision is against my right to natural justice.

The Applicant has provided particulars in respect of each ground. The particulars supplied in respect of the first ground are essentially a statement of the facts upon which the Applicant relies in claiming that she had no knowledge of the adjourned hearing. The Applicant claims:

Tribunal is required to inform me about the hearing to provide me an opportunity to present my case. Tribunal made decision without providing me an opportunity to present my case in front of the tribunal.

According to the record in the Green Book[3] (page 63), Tribunal called me for hearing on 9 November 2004. On page 65 of Green Book response to the hearing invitation form is listed. This form was signed by my Migration agent without my consent. However, my migration agent informed about the hearing over the phone on later date. I was all set to attend the hearing.

I went to the hearing on 9 November 2004 by myself. I did not receive any information that the hearing was adjourned. I went straight to the counter & gave copy of the letter. Person in the counter said something which I did not understand. She gave me my paper back. I thought hearing would be started very soon. I waited there for 1 hour. Nobody called my name. Then around 4:00pm. I went back home. I was confused. I got a friend to call my agent. But my friend was unable to make contact with my agent.

From next day I had been busy in working. I thought Tribunal did not require me in deciding my application.

In December 2005, I received some documents. At that time, one of my friends was in my residence. I got her to read the document. My friend told me that my application was refused.

I was surprised. I applied for review to the court within 21 days. After first direction hearing, I received Green Book. I got a friend to go through the documents in the Book. I came in know that Tribunal had invited me for hearing on 25 November 2005 (page 69). I also found that my migration agent signed & sent response to Hearing Invitation on 24 November 2004. My migration agent said through the form that I did not want to go to the hearing. In fact, this letter was signed without my consent & I absolutely had no idea about the invitation and the hearing nor had I any idea about the response sent by my migration agent.

That's what had actually happened. I absolutely had no idea about the second hearing invitation. Otherwise, I would attend the Tribunal and present my case.

The Applicant had filed a document on 4 May 2005 headed "Applicant's Contentions of Fact and Law". It appears to be an example of a pro-forma submission that appears from time to time in migration matters, prepared by some anonymous person. A significant part of it consists of statements of the obvious and the balance of it consists of a dissertation on state protection. The document has little or no relevance to the Applicant's case, apart from the facts that the words 'Mongolia' and 'Mongolian' have been inserted in the appropriate places. It is of no use whatsoever in this case.

By comparison, the solicitors for the Respondent Minister have filed a very well-drafted and thoughtful submission prepared by Mr Johnson of counsel. The Respondent's submission points to the fact that, in respect to the hearing scheduled for 25 November 2004, the Applicant's agent signed a document on her behalf that stated "I/we do not want to come to a hearing" and "I/we consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it"[4].

Importantly, the Respondent submits that sub-ss.425(2)(b) and 425(3) have the effect that, once the Applicant consented to the Tribunal deciding the review without the Applicant appearing before it,

sub-s.425(1) no longer applied and the Applicant became one who "is not entitled to appear before the Tribunal". Thus, the Tribunal was entitled to proceed as it did. The entitlement did not depend on s.426A, but upon sub-s.425(2)(b) and 425(3).

The Respondent Minister also submits that the operation of

sub-s.425(2) and (3) overrides any deficiency in the notice of invitation to appear. (See s.425A and Reg 4.35D of the Migration Regulations 1994 (Cth)).

The first letter notifying the Applicant of a hearing date and inviting the Applicant to appear[5] complied with both s.425A and Regulation 4.35D. The Applicant and the authorised recipient are deemed to have received the letter advising of the rescheduling of the hearing on

19 November 2004, seven working days after the date on which the notice was sent. (See ss.441A(4), 441C (4) & 441G). The Migration Act deems documents to have been given to an applicant in the circumstances prescribed by ss.441A, 441C and 441G regardless of whether they are in fact received. Counsel submitted that the effectiveness of the deemed giving can be seen to depend upon the dispatch in accordance with the Act. (See Minister for Immigration& Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [12], citing VNAA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 134 at [16]).

If the prescribed period of notice of the hearing date under Reg 4.35D applied, the hearing date should not have been before 3 December 2004.

Counsel for the Respondent Minister submits that there was no need for fresh compliance with the prescribed period of notice under Reg 4.35D in the case of a postponement such as this.

Alternatively, the Respondent Minister submits that the consent to the hearing proceeding in the absence of the Applicant operated to render any breach of s.425A or Reg 4.35D of no consequence. The terms in which the Applicant nominated an authorised recipient[6] included an authority to the authorised recipient to act on behalf of the Applicant in relation to this case, not merely in relation to receiving correspondence. Once the Applicant had consented in this way, it is submitted that subsections 425(2) and (3) operated so that the Applicant no longer had an entitlement to appear at a hearing.

Alternatively, the Respondent submits that if the Court were to find that the Tribunal, in notifying the rescheduled hearing as it did, breached s.425A in combination with Reg 4.35D and thereby committed jurisdictional error, the Court should refuse relief in the exercise of its discretion based on the Applicant's consent to the Tribunal deciding the matter without the Applicant attending a hearing. There is a discretion to refuse relief on discretionary grounds where the Tribunal has breached a requirement under Division 4 of Part 7 of the Act: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24 per McHugh J at [80], Hayne J at [210]-[211] and Kirby J at [174].

The Respondent submits that there is a conflict of judicial opinion in relation to the interaction of s.425A and regulation 4.35D. He cited the decisions of SZFKF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1152; SZFIH v Minister for Immigration & Multicultural & Indigenous Affairs (Smith FM, 28 November 2005); SZBAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 790; SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1026; SZEGU v Minister of Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1023; NBBU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 767.

As counsel for the Respondent submits, the obvious point of distinction between those cases and the present case lies in the consent that was given to the Tribunal making a decision on the review without taking the any further action to allow or enable the Applicant to appear before it.

It appears to me that an important issue in this case is whether there is a valid consent to the Tribunal proceeding to hear the review without the Applicant. If there is, the submission of counsel for the Respondent that the combined operation of s.425(2)(b) and s.425(3) would lead to a finding that the Applicant was not entitled to appear at the hearing.

The Respondent Minister sought that the Applicant should be

cross-examined. The Applicant agreed to that course and, in the witness box, affirmed the truth of the matters that she had put in the particulars of her Amended Application.

In cross-examination, the Applicant said that she had a migration agent, Mr Yevgen Kyselov, act for her because she did not speak English. She confirmed that she had sought that a friend who spoke English should contact the agent on her behalf. She denied that the friend's name was Azar, and said the friend's name was Mura. The Applicant said that there were two friends who helped her, the woman named Mura who speaks English and Mongolian and a man named Tumur, who knows Russian.

The Applicant persisted in her denial that she told the agent that she did not wish to attend a hearing. She said it was difficult for her to contact the agent, as she had no English and was reliant on friends who did speak English. They all have day jobs.

The Applicant said that the agent had told her that he would do everything. She maintained that she did not any time authorise the agent or tell anyone that she did not want to attend a Tribunal hearing. She said she wanted to attend the hearing.

The Respondent called the migration agent, Yevgen Kyselov, to give evidence. He said that in 2004 he had acted for the Applicant in proceedings before the Refugee Review Tribunal. He said that the Applicant had been introduced by a person called Azar. She was accompanied by 2 or 3 friends, he could not remember which because it had happened a year ago.

Mr Kyselov thought there was a person called Azar who understood Mongolian.

Mr Kyselov said that originally the hearing date was fixed for

9 November and the Applicant signed a form saying that she wanted to attend the hearing. When he received the letter from the Tribunal appointing a new date he contacted one of the Applicant's three friends, he could not remember which, to pass on the message about the adjournment. He said he received a telephone call back saying that the Applicant did not wish to attend the hearing, so he signed the form saying "no".

Mr Kyselov said that he sent the Applicant a copy of the Tribunal decision and after that he had no contact with her.

He told the court that one of the three people he dealt with had been a client of his, a Mongolian who was fluent in Russian. Mr Kyselov speaks Russian. The other person was introduced to him by the Applicant. He said that the Applicant gave him the telephone number of the person called Azar.

The Applicant cross-examined Mr Kyselov. She put to him that he had never asked her about the letter to the Tribunal (i.e_._ the Response to the hearing Invitation) and asked him why he signed. He replied that he did not have any reason to indicate that the Applicant did not want to attend the Tribunal hearing and without her instructions he would not have indicated anything.

He said that the reason why he signed the second form saying "no" was the same reason he had signed the first form saying "yes", that is, he had her instructions to do so.

Mr Kyselov told the court he had been given three telephone numbers and three Mongolian names. He said:

They are not names that I can tell whether it is a male or a female.

Counsel for the Respondent submitted that the Applicant had consented to the Tribunal deciding the case without her attendance. He said that the authority the Applicant gave the agent was not just an authority to receive correspondence on her behalf. It was an authority to act on her behalf in the case. He said that the Applicant had given evidence that she relied upon the agent to, in effect, take such action as was necessary. That was part of her excuse for not contacting the agent after her abortive attendance at the Refugee Review Tribunal on

9 November.

Counsel for the Respondent also submitted that the agent had specific authority to complete the RRT form. He had no incentive to fill out the form in the negative as he did and that there was nothing in his evidence that would cause doubt that he had communicated with the Applicant through a bilingual friend.

Only the Applicant, he submitted, has the incentive to be untruthful and her evidence was implausible.

With respect, I disagree with the Respondent's submissions. Having observed the Applicant's demeanour in the witness box, I have formed the view that she was giving her evidence honestly. Her actions were consistent with those of a person who at all times wanted to attend a hearing of the Tribunal so that she could put her case. She was not shaken in cross-examination.

I do not consider that the Applicant gave the migration agent carte blanche to act for her in whatever way he felt was necessary. It is noteworthy that the evidence both of the Applicant and Mr Kyselov showed that neither one of them was of the view that he had that authority. Each time, Mr Kyselov made an attempt to obtain instructions from his client as to whether she wished to attend the hearing or not.

Mr Kyselov's evidence was at times vague. He could not remember the names of the Applicant's friends or associates, and the Applicant did not give any evidence about having a friend called Azar. Mr Kyselov excused the gaps in his memory as relating to events of a year before.

It is significant that Mr Kyselov was unable to tell the court any details of the person who he said had telephoned him to say that the Applicant no longer wished to attend a Tribunal hearing. He could not even remember whether that person was a man or woman. His memory of instructions about a very important factor in the Applicant's case is so vague as to be unreliable, in my view.

It is significant, too, that Mr Kyselov did not seem to query why the Applicant had so radically changed her mind over the period of about a fortnight. It is also surprising that he gave no evidence of attempting to advise the Applicant that a decision not to attend the Tribunal hearing would have a disastrous effect on the chances of the Tribunal making a decision in the Applicant's favour. As a migration agent, he either knew or ought to have known that applicants who decide not to attend Tribunal hearings almost inevitably fail.

In my view, the Applicant's evidence had the ring of truth to it. Where there is a discrepancy between her evidence and that of Mr Kyselov, I prefer the evidence of the Applicant.

Accordingly, I am satisfied that the Applicant did not consent to the Tribunal proceeding to decide the review without giving her the opportunity to attend a hearing.

I am satisfied that Mr Kyselov did not have the authority to inform the Tribunal that the Applicant did not wish to attend the Tribunal hearing. Accordingly, subsection 425(2)(b) of the Migration Act does not apply.

I am satisfied that there is a breach of s.425A and regulation 4.35. To my mind, the decisions of Conti J in SZDQO v Minister for Immigration & Multicultural & Indigenous Affairs (supra) and Barnes FM in SZBAZ v Minister for Immigration & Multicultural & Indigenous Affairs (supra), each of whom held that the requirements in s.425A and regulation 4.35D did not apply, can be distinguished. In each of those cases, the variation of the hearing date was sought by the applicant, not by the Tribunal. I note that the decision in SZDQO is a decision on appeal from this Court.

I am informed that in SZFIH v Minister for Immigration & Multicultural & Indigenous Affairs (supra), a decision that is yet unreported and no written reasons for decision are available, Smith FM disagreed with SZFKF V Minister for Immigration & Multicultural & Indigenous Affairs (supra), but as I am not aware of His Honour's reasons, with respect I cannot follow the decision.

I have previously agreed with the decision of Barnes FM in SZFKF[7] and I see no reason, again with respect, why I should alter my view at this stage. I am aware that an appeal is pending in respect of that matter, but there is no information before me as to when the decision will be available. I do not know whether the appeal has been heard and, if not, when it will be heard.

My task is to decide this case. There is no reason why I should not exercise the court's discretion to grant relief, and I propose to make orders in the nature of certiorari and mandamus.

As the Applicant is not legally represented, the only costs order that I make in her favour will cover the filing fee which she paid to the Court when filing her application.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Scarlett FM

[1] The Refugee Review Tribunal has the power to act in this way under the Migration Act 1958 (Cth).

[3] The applicant is referring to the Court Book.

[7] See SZFHC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1399 at [32].