SZFVG v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2006-09-01|Before: Edmonds J

Introduction 1 This is an appeal from the Federal Magistrates Court (Smith FM) dismissing an application for judicial review of a decision of the second respondent ('the Tribunal') affirming a decision of a delegate of the first respondent ('the Minister') to refuse to grant the appellant a protection visa.

The Decision under Review 2 The appellant is a citizen of Lebanon who arrived in Australia on 17 July 1995. He lodged a protection visa application which was refused by a delegate of the Minister on 3 June 1998. The appellant then applied to the Tribunal for review of that decision on 30 June 1998. 3 The appellant advanced claims to fear persecution from Syrian and Lebanese authorities and intelligence forces as well as Islamic militias in Syria. On 21 January 1999 the Tribunal wrote to the appellant and informed him that, after looking at the material relating to his application, it was not prepared to make a 'favourable decision' on that information alone and invited him to attend a hearing to give oral evidence in support of his claims. The appellant responded to that invitation by indicating that he wished to come to a hearing, but ultimately he failed to attend. The appellant would later claim in the Federal Magistrates Court that the reason for his failure to appear was that he did not receive the letter advising him of the hearing date. The Tribunal, faced with the non-appearance of the appellant, proceeded to make its decisions. The Tribunal based its rejection of his application for a protection visa on its inability to be satisfied on the limited information before it that he met the applicable visa criteria. The Tribunal's conclusion is expressed in the following terms: 'Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.'

THe Court below 4 The appellant sought judicial review of the Tribunal's decision to the Federal Magistrates Court. On 13 March 2006 his Honour found that the decision of the Tribunal was a privative clause decision and dismissed the application with costs. In the course of his reasons, his Honour said: '19. Notwithstanding the absence of any affidavits, I invited the applicant to go into the witness box to give sworn evidence in support of his ground of review. He agreed that he had been living at the Merrylands address in February 1999, that he had received the offer of a hearing, and that he sent the response which I have referred to above. 20. He claimed, however, not to have received the letter sent by the Tribunal two weeks later. He claimed that he had changed address at some point, but could not recall when. He said that the first time he had told anyone about his new address was when he was taken into detention at Villawood last year. He did not claim to have made any attempt to tell the Tribunal, nor the Department of Immigration, of any change of address from the Merrylands address last given to the Tribunal. When shown the later correspondence from the Tribunal sent to that address he denied having seen it prior to being taken into Villawood. 21. I have great difficulty believing that the applicant did not receive the letter of 19 February 1999 from the Tribunal sent by registered post, but in any event, in my opinion, the Tribunal took all reasonable steps to give him the opportunity to attend a hearing. Its obligation at the relevant time was found in s.425, unaffected by amendments made by Act No. 113 of 1998, which did not come into effect until 1 June 1999. Section 425(1) required: Where review on the papers is not available (1) Where section 424 does not apply, the Tribunal: (a) must give the applicant an opportunity to appear before it to give evidence; and (b) may obtain such other evidence as it considers necessary. 22. No formalities were prescribed as to the giving of such an opportunity. Provisions of the Regulations covered generally the giving of notices by the Tribunal to applicants, and provided that documents might be given or served by posting to the applicant's last‑known place of residence (see reg.4.41 of the Migration Regulations 1994 (Cth)). 23. If it were necessary for me to make a finding as to whether the Tribunal's letter was "given" to the applicant, I would make that finding by application of s.29(1) of the Acts Interpretation Act 1901 (Cth). I am satisfied as to the condition of "properly addressing prepaying and posting the document as a letter", and I am not satisfied that the letter did not reach the applicant by delivery in the ordinary course of post. The applicant's evidence about his change of address is so vague that I do not accept it, insofar as it might suggest a change of address during February 1999. I think it more probable that he continued to live at that address during that month and received the hearing appointment. 24. In any event, in my opinion, the applicant was given a reasonable opportunity to attend by the Tribunal sending him a letter in February 1999 and appointing a hearing for 22 April 1999. I am not satisfied that any procedure required of the Tribunal was not followed, nor that the Tribunal's decision was attended by any failure of procedural fairness.'

The Appeal 5 The Notice of Appeal asserts four possible grounds of error.

Ground 1 - General Error (Par 2) 6 The appellant claimed that his Honour erred by failing to find that the Tribunal had wrongly assessed his claim as not meeting the definition of 'refugee'. In the absence of any particulars that might make this general assertion of error meaningful or demonstrate how it might be relevant to the appellant's case, it cannot succeed.

Ground 2 - Breach of Procedural Fairness (Par 3) 7 The appellant asserted further that his Honour was made aware that he did not receive the Court Book or legal advice under the panel scheme administered by the court. The appellant also complained that his Honour cross-examined him by showing him signatures on various pages of the Court Book but as the appellant does not read or write he could not understand the contents of the pages shown to him. In this context, the appellant appears to assert that his Honour was in error by failing to be satisfied that the appellant did change his address. 8 To the extent that this alleged ground of appeal seeks to establish a breach of procedural fairness in the approach adopted by his Honour, the Minister submitted that this ground cannot be made out. I agree.

Ground 3 - Failure to Address Country Information and Appellant's History (Par 4) 9 The appellant contended further that the Tribunal failed to address country information and the appellant's history as a member of the Lebanese Armed Forces. No particulars are provided to identify the particular 'country information' the Tribunal is said to have failed to address. Nor is there any support for the proposition that the Tribunal failed to address the appellant's claims relating to his membership of the Lebanese Armed Forces. 10 It is clear that the Tribunal did consider the appellant's claims as set out in his written submissions to the Department and to the Tribunal. Even when an applicant does appear, the Tribunal is 'not obliged to set out every detail of the reasoning process which [it] eventually employed for the [applicant's] consideration': Re Ruddock & Anor; Ex parte S154/2002 (2003) 201 ALR 437 per Gummow and Heydon JJ at [54], Gleeson CJ relevantly agreeing at [1]. Proceedings in the Tribunal are 'not adversarial' and '… it [is] for the [applicant] to advance whatever evidence or argument [he/she] wished to advance, and for the [Tribunal] to decide whether [his/her] claim had been made out': S154/2002 per Gummow and Heydon JJ at [57], Gleeson CJ again relevantly agreeing at [1]. The Tribunal is obliged to consider the case put by the applicant: Abebe v The Commonwealth (1999) 197 CLR 510 at [187]. It is not obliged to make the case for the applicant: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at [170]; Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 178; Singh v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4 at 9. 11 In any event, no jurisdictional error is revealed in the Tribunal's approach or findings because the facts that were put forward by the appellant did not cause the Tribunal to be satisfied as to the applicable criteria: SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 215; and SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 25. In similar circumstances, where an applicant failed to appear before the Tribunal in the face of a letter (as here) putting the applicant on notice that the Tribunal was not prepared to make a decision in his favour upon the material already available (AB 41 - 42), the rejection of the application was the 'inevitable consequence' of the appellant's non-attendance: NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5]. As a practical matter, this must be so, unless the Tribunal changes its evaluation of the same material already presented. Accordingly, this ground cannot be sustained.

Ground 4 - Failure to Give Opportunity to Respond to Questions (Par 4) 12 The appellant also claimed that the Tribunal erred by failing to give the appellant an opportunity to respond to 'some questions' in circumstances where he indicated that he wished to attend 'but did not show up'. It is claimed that the Tribunal is obliged to give the appellant another opportunity to appear and that it failed to seriously consider the reasons for his non-appearance. This ground is misconceived as no such obligation is imposed upon the Tribunal. 13 In his Notice of Appeal, the appellant sought to reserve his rights to lodge a further affidavit as to the 'real grounds' upon which he seeks to rely. However, nothing was received from the appellant prior to the hearing of the appeal nor did he file written submissions despite the specific directions of a Registrar of the Court for him to do so. Following the hearing, the appellant filed in the Court registry two affidavits, one by himself and the other by an interpreter. Neither affidavit touches matters relevant to the determination of his appeal.

Conclusion 14 As no error has been demonstrated in the judgment of his Honour below or any jurisdictional error in the decision and approach of the Tribunal, the appeal must be dismissed with costs. 15 The Minister submitted that, even if some error were to be established (which was not admitted), the conduct of the appellant in delaying some six years between the Tribunal's decision on 30 April 1999 and the filing of his application to the Federal Magistrates Court on 4 March 2005 warrants the refusal of relief in the Court's discretion. Delay, waiver, acquiescence or unclean hands are all relevant matters for the court to consider when determining whether the conduct of an applicant disentitles them to the relief sought: SAAP v Immigration & Multicultural & Indigenous Affairs [2005] 215 ALR 162 per McHugh J at [84]; see also R v Australian Broadcasting Tribunal; Ex parte Fowler & Ors (1980) 31 ALR 565 per Barwick CJ, Gibbs, Stephen, Mason and Aickin JJ at 569.5 and 570.2; and Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 per McHugh J at 498. 16 In the circumstances, it is not necessary for me to consider this further submission, however, had I been required to do so, I would have been minded to deny relief by way of exercise of that discretion. I certify that the preceding sixteen (16) numbered Paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Solicitor for the Appellant: The appellant appeared in person

Solicitor for the First Respondent: Sparke Helmore

At a glance

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Judgment (11 paragraphs)

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Legislation Cited (2)

Cases Cited (10)