SZKQM v Minister for Immigration and Citizenship

Federal Court of Australia|2008-03-06|Before: Branson J

INTRODUCTION 1 The appellant is a citizen of Thailand who arrived in Australian on 26 September 2006. She applied for a Class XA (Protection) visa on 8 November 2006 pursuant to s 36 of the Migration Act 1958 (Cth) ("the Act"). 2 The appellant claimed to fear persecution in Thailand from Muslim men. On 18 November 2006 a delegate of the Minister refused to grant her a protection visa. The appellant sought review of that decision by the Refuge Review Tribunal ("the Tribunal"). 3 The appellant gave evidence before the Tribunal, assisted by an interpreter, on 1 March 2007. On 5 March 2007 the Tribunal wrote to the appellant in purported compliance with the requirements of s 424A of the Act. The letter drew attention to "information" that consisted of apparent inconsistencies between statements made in the appellant's protection visa application and her evidence before the Tribunal. The letter explained that the "information" could lead the Tribunal to make an adverse credibility finding. 4 On 2 April 2007 the Tribunal affirmed the decision of the delegate of the Minister. The Tribunal did not find the appellant to be a credible witness and concluded that the claims made by her concerning her experiences in Thailand were false. The Tribunal was not satisfied that the appellant left Thailand because of a fear of persecution and it was not satisfied that she had a well-founded fear of persecution for a Convention reason should she return to Thailand. 5 The appellant sought judicial review of the Tribunal's decision by the Federal Magistrates Court. On 26 September 2007 the Federal Magistrate found that the Tribunal's decision was not affected by jurisdictional error and accordingly dismissed the application.

STATUTORY PROVISIONS 8 Sections 424A(1) and (2), s 441A(1) and (4) and s 441C(1) and (4) respectively provide: 424A Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. 441A Methods by which Tribunal gives documents to a person other than the Secretary Coverage of section (1) For the purposes of provisions of this Part or the regulations that: (a) require or permit the Tribunal to give a document to a person (the recipient); and (b) state that the Tribunal must do so by one of the methods specified in this section; the methods are as follows. … Dispatch by prepaid post or by other prepaid means (4) Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by prepaid post or by other prepaid means; and (c) 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. 441C When a person other than the Secretary is taken to have received a document from the Tribunal (1) This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 441A (including in a case covered by section 441AA). … Dispatch by prepaid post or by other prepaid means (4) If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document: (a) if the document was dispatched from a place in Australia to an address in Australia - 7 working days (in the place of that address) after the date of the document; or (b) in any other case - 21 days after the date of the document.

SECTION 424A OF THE ACT 9 Counsel for the appellant submitted that the Tribunal had failed to comply with s 424A because the appellant had not actually "received" the letter from the Tribunal dated 5 March 2007 ("the letter"). In this regard he placed reliance on Minister for Immigration and Citizenship v SZKKC 159 FCR 565. Counsel for the appellant further submitted that "prepaid post" within the meaning of s 441A of the Act does not include ordinary post and must be understood to mean registered post or another form of post that calls for personal delivery. 10 The learned Federal Magistrate found that "the 424A letter … was, according to the note on it, mailed on 5 March to the applicant at the last address provided to the Tribunal by the applicant". The learned Federal Magistrate went on to find that "as the 424A letter was validly sent, notwithstanding the applicant's claimed non-receipt of that letter, a breach of s 424A cannot be established". 11 As mentioned above, counsel for the appellant placed weight on the decision of the Full Court of this Court in Minister for Immigration and Citizenship v SZKKC. This decision concerned the provision to an applicant of the reasons of the Tribunal in accordance with Division 5 of the Act in the context of s 477 of the Act. Section 477 specifies that the time for filing an application in the Federal Magistrates Court starts from the "actual (as opposed to deemed) notification of the [Tribunal's] decision". The High Court has granted special leave to appeal from the decision of the Full Court but the appeal has not yet been determined. 12 Section 424A, unlike s 477, does not refer to "actual (as opposed to deemed) notification". The combined effect of s 424A(1) and (2) is that the information and invitation with which subsection (1) is concerned must be given to the applicant by whichever of the methods specified in s 441A the Tribunal considers appropriate in the circumstances. In the present case the Tribunal considered the method specified by s 441A(4) to be appropriate in the circumstances. 13 There was only one regard in which counsel for the appellant challenged the Tribunal's compliance with the method specified in s 441A(4). He submitted that prepaid post, in the context of s 441A(4), includes registered post does not include ordinary post in respect of which the applicable charge has been paid by way of the fixing of a stamp or other proper means. This submission is at odds with the conventional understanding of what constitutes "prepaid post" as accepted in judgments of this Court too numerous sensibly to list here. Minister for Immigration and Citizenship v SZKPQ [2008] FCAFC 21, a judgment published since the hearing of this appeal, places beyond doubt that this ambitious submission is untenable (see per Emmett J, with whom Branson and Bennett JJ agreed, at [12]). This ground of appeal fails.

"INFORMATION" 14 At the hearing I drew to the attention of counsel for the appellant that, having regard to the decision of the High Court in SZYBR v Minister for Immigration and Citizenship (2007) 235 ALR 609, the Tribunal may not have been under any obligation in this case to comply with s 424A. 15 In his supplementary written submissions counsel for the appellant conceded that in light of the High Court's decision in SZBYR the letter sent by the Tribunal did not contain "information" for the purposes of section 424A. Although no application was made to amend the notice of appeal, he submitted that the letter was to be regarded as a letter inviting the appellant to give additional information within the meaning of s 424 of the Act. It is unnecessary to determine whether this submission should be accepted. Assuming it to be accurate, for the reasons given above the invitation was given by one of the methods specified in s 441A (see s 424(3)).

CONCLUSION 16 Counsel for the appellant in his supplementary written submissions requested that this Court reserve its decision on this appeal until the High Court determines the appeal in SZKKC. As SZKKC is centrally concerned with a provision that has no relevance to this appeal I consider it inappropriate to accede to this request. 17 The appeal will be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson .

Solicitor for the Respondent: Sparke Helmore Solicitors

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