SZGGG v Minister for Immigration and Citizenship

SECTION 48B APPLICATION 9 On 15 November 2004, assisted by a new migration agent, the appellant made a further application to the Minister for a protection visa ('the s 48B Application') purportedly under section 48B of the Migration Act 1958 (Cth) ('the Act'). Section 48B of the Act provides that the Minister may, if thought to be in the public interest, determine that an appellant may make a further application for a protection visa after having made an initial application. On 10 December 2004 it was deemed that the second application did not comply with Ministerial Guidelines for referral to the Minister and was accordingly dismissed.

APPLICATION TO MINISTER FOR BRIDGING VISA 10 On 14 December 2004 the appellant applied to the Minister for a Bridging Visa Class E. This application was refused on 17 December 2004 and the appellant applied for review of that decision with the Migration Review Tribunal ('the MRT') which subsequently affirmed the Minister's decision. The appellant sought judicial review of the decision of the MRT and such application was dismissed by Barnes FM on 3 May 2005 due to the non-appearance of the appellant.

APPLICATION FOR REVIEW OF THE TRIBUNAL'S ORIGINAL DECISION 11 On 6 May 2005, the appellant sought judicial review in the Federal Magistrates Court of the original Tribunal decision. Such application raised grounds challenging the substance of the Tribunal's findings that the appellant did not have a well-founded fear of persecution. The issue of service of the invitation was not referred to. However, an Amended Application filed on 22 August 2005 challenged, inter alia, the procedural issues relating to the original Tribunal decision and matters relating to the s 48B Application. 12 The appellant claimed that he had not received letters from the Tribunal nor from his agent in respect of the original Application for Review. The appellant submitted that the invitation from the Tribunal inviting him to a hearing was sent to the appellant's migration agent to an address which, although shown on the fax cover sheet of the migration agent, did not correspond with the address provided by the appellant in his original Application for Review. Consequently the appellant submitted that the Tribunal did not comply with s 441G of Act which stipulates correspondence must be sent to an appellant's nominated authorised recipient. The appellant also claimed that the Minister did not personally consider his application under s 48B of Act to allow him to make a further application for a protection visa.

THE DECISION OF THE FEDERAL MAGISTRATE 13 At the hearing before Nicholls FM on 27 September 2005 the appellant requested an adjournment to obtain further documents. The proceedings were adjourned to allow the parties to provide further submissions and evidence in respect of the issues of the alleged incorrectly addressed invitation to hearing and in respect of the delay on the part of the appellant in bringing the proceedings. 14 At the resumed hearing on 14 November 2005 the appellant again appeared in person assisted, with leave, by a 'friend', Ms Frugtneit. At the conclusion of this hearing Nicholls FM identified three critical issues for consideration, namely whether the Tribunal failed in its statutory duty to invite the a to a hearing before it; whether the requirements of common law procedural fairness were met by the Tribunal in relation to the invitation to the hearing; and whether the Court should exercise its discretion to grant relief in the event of a finding of jurisdictional error by the Tribunal in light of the unwarrantable delay and the appellant's conduct in taking proceedings for alternative relief instead of seeking judicial review of the original Tribunal decision.

Grounds in the application to the Federal Magistrates Court 15 Before Nicholls FM the appellant only relied upon the issue of the failure to provide notice of the hearing. Nicholls FM nevertheless considered all grounds raised by the appellant and found no jurisdictional error in the Tribunal's decision. His Honour found that the Tribunal's decision was based on a lack of satisfaction of the truthfulness of the appellant's claims and that such finding was open to it on the evidence. His Honour found that the weight to be attributed to certain country information was a matter for the Tribunal and that the Tribunal did not ask itself the wrong question as alleged. Furthermore his Honour found that the appellant's complaint regarding the Minister's conduct in relation to the s 48B application did not show any error in the Tribunal's decision, and that in any event the Minister was under no obligation to exercise his power under s 48B of the Act.

Statutory requirements of invitation to attend Tribunal hearing 16 In relation to the issue whether the Tribunal failed in its duty to invite the appellant to a hearing, Nicholls FM found that the Mount Waverley address on the migration agent's fax cover sheet dated 8 November 2000 and attached to the original Application for Review was the most recent address provided for the appellant's adviser. His Honour noted that there was no evidence provided by the appellant to suggest a more appropriate address, and consequently it was open to the Tribunal to treat the Mount Waverley address as the last notified address for service. 17 Ms Frugtniet brought to the Court's attention the omission from the Court Book of a 'return to sender' advice regarding the invitation sent to the appellant's address giving notice of the hearing. It was later included as an annexure to the appellant's affidavit of 10 October 2005 and to an affidavit sworn on 10 October 2005 by the Minister's solicitor. Ms Frugtniet also submitted that the Court Book was deficient in a number of other, unspecified, aspects. Nicholls FM however, was not prepared to hold that the omissions to the Court Book were deliberate nor to allow Ms Frugtniet to engage in a 'fishing expedition' for documents. 18 His Honour noted that there was no evidence brought by the appellant to indicate that his migration adviser did not receive the invitation to attend the Tribunal hearing and that it was always open to the appellant to adduce such evidence. 19 Nicholls FM held that the provisions of s 441C(4) of the Act applied. Since the invitation was sent to the appellant's last know residential address, the invitation to hearing was deemed to have been received by the appellant since the invitation was sent to the appellant's last known residential address. Accordingly his Honour found that the Tribunal was entitled to proceed under s 426A(1) of the Act. 20 His Honour also noted that the original Application for Review was made before s 441G of the Act became operational and that the nomination of the migration agent in the application for review could not have been made in the context of an 'authorised recipient' as provided by s 441G of the Act. However, the parties proceeded on the basis that when s 411G did become operational, it rendered the appellant's migration agent the authorised recipient for the purpose of the section. His Honour followed the decision of Mansfield J in Makhu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 221 to deem that the appellant had received the invitation, notwithstanding that under s 441G of the Act the invitation 'must' be sent to the appellant's authorised recipient. 21 Although finding that the Tribunal acted correctly in respect of service of the notice, Nicholls FM found that the Tribunal did not comply with the relevant statutory requirements in respect of the period of notice. His Honour found that there was jurisdictional error in the procedures of the Tribunal. His Honour noted that s 425A(3) in conjunction with Regulation 4.35D(b) of the Migration Regulations 1994 (Cth) ('the Regulations') stipulated that the prescribed period for giving notice of an invitation to a hearing starts when the appellant receives notice of the invitation and ends at the expiration of 14 days after the day on which notice is received. His Honour also noted that s 441A(4) of the Act provided a method by which the Tribunal gives a document to a person is to date the document and dispatch it by prepaid post within 3 working days to the last address for service, or last residential or business address provided by the appellant. His Honour also noted that section 441C(4)(a) of the Act relevantly provides that a person is taken to have received a document from the Tribunal 7 working days after the date of the document. 22 In applying the legislation to the facts his Honour found that the date of the invitation to the hearing was 31 January 2002 and that the invitation was sent by prepaid post to the migration agent and the appellant at his residential address on 1 February 2002, thus within the requisite 3 working days. His Honour found that the migration agent would be deemed to have received the letter of invitation on Monday 11 February 2002. Pursuant to Regulation 4.35D(b) the period of notice required in relation to an invitation to attend a hearing in the case would have ended 14 days later on Monday 25 February 2002. The hearing was set for 22 February 2002 and thus the period of notice was deficient by 3 days. His Honour accordingly found that the Tribunal did not satisfy the requirements of the prescribed period of notice both for the letter sent to the migration agent and the letter sent to the appellant pursuant to s 425A(3) of the Act.

Common law procedural fairness 23 As the proceedings were commenced prior to the enactment of s 422B of the Act, Nicholls FM also had regard to the question whether the requirements of common law procedural fairness were met by the Tribunal in relation to the hearing invitation. His Honour had regard to the decisions of Smith FM in SZDOG v Minister for Immigration [2004] FMCA 972 and SZEMB v Minister for Immigration [2005] FMCA 448. In these decisions the discretion of the Tribunal to proceed to determination of the application under s 426A(1) of the Act was vitiated because the Tribunal failed to address considerations relevant to the exercise of that discretion. However his Honour distinguished such decisions on their facts. In SZDOG, the Tribunal had drawn a mistaken positive conclusion that the appellant had shown a deliberate lack of interest in his application. In SZEMB the Tribunal proceeded to make a final decision on the mistaken belief that the agent had been notified with sufficient time for him to make significant efforts to contact his client. No such considerations applied in the present circumstances. 24 Nicholls FM agreed with the appellant's submission that there was a long period between the institution of the original Application for Review and the date of the Tribunal's letter of invitation. However, his Honour found that this was irrelevant to the Tribunal's alleged failure to invite the appellant to a hearing. The appellant had been placed on notice of the importance of providing accurate addresses and did not do anything to alert the Tribunal to the fact that the Mount Waverley address was not relevant.

Exercise of discretion to grant relief when finding jurisdictional error 25 Nicholls FM, referring to the High Court's decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 observed that the grant of relief of the nature sought by the appellant (writs under s 75(v) of the Constitution) is discretionary and may be refused if the conduct of a party is inconsistent with the grant of such relief for reasons of, inter alia, unwarrantable delay, acquiescence or waiver or unclean hands on the part of the party seeking relief. 26 Nicholls FM was satisfied that the appellant would have known of the Tribunal's decision to affirm the Minister's refusal of his application for a protection visa by mid November 2004. Nicholls FM found that since the appellant's application for review to the Federal Magistrates Court was not made until May 2005, there was an unwarrantable delay by the appellant in pursuing his appeal. Nicholls FM considered that the appellant's conduct in pursuing the s 48B Application rather than seeking review of the Tribunal's decision of 27 February 2002 showed that the appellant lacked the sense of grievance or urgency that the appellant had subsequently asserted. Nicholls FM was also of the view that the appellant demonstrated 'unclean hands' due to inconsistencies in the appellant's evidence and submissions. Accordingly his Honour refused to exercise his discretion to grant the relief sought by the appellant and dismissed the application.

APPEAL TO THIS COURT 27 By Notice of Appeal dated 3 May 2006 the appellant raises the following grounds of review: the Federal Magistrate erred by not finding that the Tribunal failed to accord the appellant procedural fairness in that the Tribunal failed to follow the procedures required by s 425A(1) and s 441G(1) of the Act; the Federal Magistrate erred in not remitting the matter to the Tribunal even though a breach of procedural fairness existed; and the Tribunal failed to accord the appellant procedural fairness in its failure to give the appellant an opportunity to comment upon the country information reports which were taken into account by the Tribunal.

Was service of the invitation valid? 28 The appellant submits that since s 441A of the Act had commenced operation by the time the invitation to the Tribunal's hearing was sent, it was necessary for the Tribunal to send the letter to the 'authorised recipient' as required by s 441G. The Tribunal failed to do so and accordingly service of the invitation was defective. 29 It is essential to consider the legislative regime which applied at the time of the appellant's original Application for Review. The original Application for Review was received by the Tribunal on 10 November 2000 under cover of a facsimile sheet provided by the appellant's adviser, Kamlesh Singh. The address on the fax coversheet was nominated as 16 Blue Hills Avenue, Mount Waverley, Victoria. 30 The original Application for Review form made provision for the appellant's home address and provided a space entitled 'Address for Service' which was left blank. The address for service box is directly below the 'home address' box and each of such boxes is contained in paragraph 8 of Section B of the Application form. Below paragraph 8 the following printed words appear on the form: (we will send all documents to you at this address unless otherwise advised)

31 In paragraph 11 of Section B on the same page, the question is asked: Do you have an advisor you authorise to act for you in relation to this application (for example a lawyer of a migration agent)?

The appellant placed a tick in the 'yes' box and nominated Mr Kamlesh Singh as such adviser. He provided the address of Mr Singh at the South Clayton address. 32 The printed form contains the following words beneath paragraph 11: The Tribunal will send copies of all correspondence to your adviser.

33 When the Application for Review was lodged with the Tribunal, s 441G was not yet in force and the prevailing legislation did not make provision for the concept of a person who could be substituted for an applicant with regard to service. Instead, the extant Regulation 4.39 of the Migration Regulations 1994 (Cth), made provision for an applicant to lodge an address for service, which might, or might not, be the appellant's residential address. The concept of 'authorised recipient' contained in s 441G did not come into effect until 10 August 2001 by virtue of amendments to the Act introduced by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth) ('the amending Act'). Item 18 of Schedule 3 to the amending Act repealed s 441A and provided that where post was used for the purpose of giving documents to a person (other than the Secretary) it could be dispatched by prepaid post or by other prepaid means within 3 working days of the date of document to: i. the last address for service provided to the Tribunal by the recipient in connection with the review; or ii the last residential or business address provided to the Tribunal by the recipient in connection with the review. (see s 441A(4)(c)). 34 In this instance the invitation was dispatched to the last known residential address of the applicant which satisfied the requirement of the Act. The Court notes, as did Nicholls FM, that the delay between the date of the filing of the original Application for Review (10 November 2000) and the date of the invitation was extensive, being a period of approximately 14 months. Nevertheless, as the provisions of the Act then existed, the Tribunal was entitled to dispatch mail to the residential address of the appellant and to provide copies of correspondence to the adviser. 35 By letter dated 10 November 2000 the Tribunal acknowledged receipt of the appellant's original Application for Review. A copy of such letter was sent to Singh's Migration at the Mount Waverley address. It included the following paragraph: It is very important to tell the Tribunal in writing if you change your telephone number, home address or your address for service (the address where you want letters from the Tribunal sent). The Tribunal will acknowledge any change of address information you provide. If we are unable to contact you, or if you do not respond to our letters, you may lose your opportunity to appear before the Tribunal and give evidence on your case.

36 Such notation was incorporated in the Tribunal's letter in bold. There is no evidence that either the letter sent to the appellant, nor the letter sent to Singh's Migration, was returned unclaimed to the Tribunal. 37 The Tribunal dispatched the invitation to attend the Tribunal hearing under s 425A to the appellant at his last residential address. At the date of sending the invitation, s 441A and 441G were in force, having come into operation on 10 August 2001. Section 441A(4) continued to provide, as a means of service, the sending of a document by, inter alia, prepaid post to 'the last residential or business address provided to the Tribunal by the recipient in connection with the review' (see 441A(4)(c)(ii)). However, s 441G(1)(b) made provision that if an applicant provided the Tribunal with: … written notice of the name and address of another person ('the authorised recipient') authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review, the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.

38 It is apparent that s 441G has no application to the facts of the present proceedings because the appellant never appointed an 'authorised recipient'. It follows that s 441A applied with the result that the Tribunal was entitled to regard the last residential address of the appellant as the address to which the invitation should be sent. By doing so, service was taken to have been effected (see s 441C(4)). 39 It follows that there is no breach by the Tribunal of s 425A of the Act as alleged. 40 Whilst the appellant relied upon the decisions of the Full Court in Lee v Minister for Immigration and Citizenship [2007] FCAFC 62 and SZFOH v Minister for Immigration and Citizenship [2007] FCAFC 63, neither have application to the present proceedings since each of those cases concern service with regard to an 'authorised recipient'. For reasons referred to above, there was no appointment of such person in the present proceedings. 41 The appellant claims that, since s 422B was not in force at the time there had been common law unfairness by the Tribunal. However, the Tribunal satisfied the statutory requirements in respect of the issue and service of the invitation under s 425A of the Act. Further, receipt is deemed to have been effected by the provisions of s 441C. Since the statutory procedure was adopted, there is no basis for a finding of a denial of procedural fairness: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 373. 42 As stated previously, Nicholls FM observed that no evidence had been led by the appellant to show that the appellant's advisor had not received a copy of the invitation. There is however evidence that the Tribunal contacted the adviser by telephone and was informed that the appellant was unlikely to attend but that efforts would be made to contact him. Nothing further was heard and no application was made to the Tribunal to adjourn the hearing. It follows that this ground of appeal must be dismissed.

Did Nicholls FM err by failing to remit the matter back to the Tribunal? 43 Although Nicholls FM found that there had been a breach of the statutory requirements concerning the provision of notice in the s 425A invitation, he declined to remit the matter to the Tribunal in the exercise of his discretion. His discretion was so exercised after a detailed investigation of the facts and circumstances surrounding the appellant's application. 44 The principal consideration was the appellant's delay in bringing review proceedings after the appellant had become aware of the Tribunal's decision. His Honour found that the appellant was aware of the Tribunal's decision at least from mid-November 2004. However, instead of challenging the decision, the appellant proceeded to lodge the s 48B Application, pursued such proceeding to the MRT and then to the Federal Magistrates Court. Nicholls FM said: It was always open to the applicant in November 2004 to have sought judicial review of the Tribunal's decision, rather than pursue a "second" application for a protection visa based on what were described as "new claims".

45 Nicholls FM held: … I do not accept the applicant's evidence before me that he did not know of the Tribunal's decision regarding the protection visa refusal when the "second" application for a protection visa was made on 15 November 2004.

46 Nicholls FM did not accept the appellant's explanation that he did not see the Tribunal's decision until it was sent to him in May 2005. 47 The appellant refers to the decision of the High Court of Australia in Re Minister for Immigration and Multicultural Affairs Ex Parte Miah (2001) 206 CLR 57, especially Gaudron J at [106] wherein her Honour said: Although relief by way of prohibition under s 75(v) of the Constitution is discretionary, the guiding principle is that "[t]hose exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers".

Reliance is also placed by the appellant upon authorities which relate to delay see: SZHRF v Minister for Immigration [2006] FMCA 766 at [35] and the observations of McHugh J in Re Commonwealth; Ex parte Marks (2000) 177 ALR 491 at 495 and of Stone J in Applicant S1338 of 2003 v Minister for Immigration and Indigenous Affairs [2006] FCA 53. 48 The Court has considered the statements of principle referred to in the above decisions but does not consider that they address the issue which Nicholls FM had before him. The appellant had chosen deliberately to pursue alternate means of obtaining a visa rather than to challenge the decision which had been made by the Tribunal. Nicholls FM exercised his discretion in determining whether to grant the relief sought by the appellant for the established breach: see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [28] and [49]-[59]. His Honour was entitled to find, on the evidence before him, that the appellant had engaged in conduct inconsistent with his recently stated grievance, had acquiesced in the Tribunal's decision and came to the Court with 'unclean hands'. 49 In Australian Coal and Shale Employees' Federation v Commonwealth(1953) 94 CLR 621 at 627, the Court said: I shall not repeat the references I made in Lovell v Lovell (1950) 81 CLR 513 at 532-534 to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: see House v The King (1936) 55 CLR 499 at 504-505.

Having reviewed the facts before Nicholls FM, the Court observes that the breach of procedural fairness related to the period of notice of the invitation to attend the hearing of the Tribunal. The period of notice was too short by 3 days. Against such deficiency the conduct of the appellant, and the delay in pursuing this appeal must be considered. The Court is unable to discern any miscarriage in the exercise of Nicholls FM's discretion. Accordingly this ground of appeal is rejected.

Failure to allow comment on country information 50 The appellant's third ground of appeal claims a failure of the Tribunal to grant procedural fairness in relation to its use of country information. Before Nicholls FM one of the appellant's grounds of appeal claimed that the Tribunal had failed to consider independent county information. Nicholls FM addressed this claim at [69] where he stated: It is clear that the Tribunal's decision did not turn upon any reliance on independent country information. This was not a situation where the Tribunal looked at independent country information and assigned different weight to different aspects of this information. I note in this regard however, that the giving of weight to such information is of course a matter for the Tribunal. In any event, the applicant failed before the Tribunal because of what the Tribunal said were vague claims and lack of detail in what he had put before the Tribunal. It was the lack of detail that led the Tribunal to saying that it could not be satisfied that the Indian authorities had an adverse interest in the applicant. For the applicant's benefit I should say that while there may have been some references in the report to the prevalence of torture by police in detention centres, and to police beatings, none of this information could be engaged to assist in the applicant's case, where he was unable to satisfy the Tribunal that he was of any adverse interest to the Indian authorities for any reason.

There is no error demonstrated in the above finding of Nicholls FM. No further particulars or submissions have been provided by the appellant in relation to this ground of appeal and accordingly the Court must dismiss it. 51 It follows that the appeal must be dismissed. 52 The Minister seeks an order for costs in the sum of $3700. Since this is within a reasonable range for costs, the Court will make the order sought pursuant to Order 62 Rule 4(2)(c) of the Federal Court Rules. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Solicitor for the Appellant: Martin Churchill Solicitors