REASONS FOR JUDGMENT
BUCHANAN AND NICHOLAS JJ:
53 The claims of the applicant in this matter, a citizen of Cameroon, to be a refugee to whom Australia owes protection obligations were rejected by the Refugee Review Tribunal ("the RRT") established under the Migration Act 1958 (Cth) ("the Act"). The RRT made its decision after the applicant had sought review by it of a decision of a delegate of the first respondent to refuse her a visa. The first argument now advanced by the applicant in support of her claim that the decision of the RRT should be set aside for jurisdictional error is that the RRT never became seized of jurisdiction to deal with the application which she made to it. She also claims, if that argument is rejected, that there were particular respects in which the RRT failed to exercise its jurisdiction in accordance with the requirements of the Act and thereby committed jurisdictional error in any event.
54 The applicant arrived in Australia on 15 January 2009 and applied for a protection visa on 27 February 2009. On 22 May 2009 a delegate of the Minister refused to grant a visa to her, concluding that she was not a person to whom Australia owed protection obligations. The delegate who interviewed the applicant rejected her claims to be a political activist. The delegate was also not persuaded that she was at risk of persecution because of her claimed activities relating to the protection of Muslim women's rights in Cameroon or that she had, in the past, been treated adversely for such activities to the extent that she had claimed. The claims were made in written statements attached to the application for a protection visa but the delegate found, in effect, that these claims were not supported adequately or made out at the interview.
55 The applicant was advised by letter dated 22 May 2009 that her claim for a protection visa had been refused. On 2 June 2009 she lodged an application at the Sydney registry of the RRT for review of the delegate's decision. The RRT conducted two hearings at which it received evidence from the applicant. At the first of those hearings it also received evidence from a witness at the applicant's request. On 9 February 2010 the RRT handed down a written decision affirming the decision of the delegate not to grant a protection visa to the applicant. She commenced proceedings for judicial review in the Federal Magistrates Court of Australia. That application was transferred to this Court and the Chief Justice directed that it be dealt with by a Full Court.
56 Section 66 of the Act requires that when notified of the delegate's decision the applicant must be told that she had a right to have the decision reviewed, advised of the time in which the application for review may be made and, relevantly for the present proceedings, "where the application for review can be made" (s 66(2)(d)(iv)). As earlier indicated, the applicant was notified of the delegate's decision by letter dated 22 May 2009. The letter informed the applicant, amongst other things, of the following:
Applications for review can be lodged in person at any registry of the Refugee Review Tribunal (RRT).
Applicants in New South Wales, Queensland, the Australian Capital Territory or the Northern Territory can post or fax their applications to the New South Wales registry of the RRT. Applicants in Victoria, South Australia, Western Australia or Tasmania can post or fax their applications to the Victorian registry of the RRT.
and:
You can lodge your application for review at the following registries:
Registries of the RRT:
New South Wales Victoria
Level 11, 83 Clarence Street Level 12, 460 Lonsdale Street
Sydney NSW 2000 Telephone (02) 9276Melbourne VIC 3000
5000 Telephone (03) 8600 5900
Fax (02) 9276 5599 Fax (03) 8600 5801
57 Under arrangements between the RRT and the Administrative Appeals Tribunal ("the AAT") (which is established under the Administrative Appeals Tribunal Act 1975 (Cth)), applications for review by the RRT may also be lodged at registries of the AAT in Brisbane, Adelaide and Perth. The applicant was not told that such a facility existed.
58 The applicant has always given, as her residential address in Australia, an address at Harris Park in New South Wales. When she lodged her application for review in the RRT she did so at the Sydney registry of the RRT. It is clear, as a matter of fact, that no prejudice was suffered by her from the failure to draw to her attention the possibility that an application for review might be lodged at a registry of the AAT in Brisbane, Adelaide or Perth. However she now relies upon a decision of a judge of this Court given on 22 April 2010 (Hasan v Minister for Immigration & Citizenship [2010] FCA 375 ("Hasan")), after the hearing and decision of the RRT, to the effect that a failure to advise a potential applicant for review of the facility of lodging an application for review at registries of the AAT in Brisbane, Adelaide and Perth constitutes a failure to comply with the provisions of the Act which is fatal to the jurisdiction of the RRT. In Hasan, North J concluded that it was necessary to advise a potential applicant for review of all places where such an application might be made. His Honour considered that a failure to comply with this requirement had the consequence that no notification was given as required by the Act. He expressly disagreed with a conclusion expressed by Jagot J in Maroun v Minister for Immigration and Citizenship [2009] FCA 1284 ("Maroun") that s 66(2)(d)(iv) of the Act does not require the identification of all places where an application for review can be made.
59 Before dealing with the construction of s 66(2)(d)(iv) of the Act, it is desirable to refer to an additional feature of the statutory arrangements. Section 412 of the Act requires that an application must be made to the RRT "within the period prescribed, being a period ending not later than 28 days after the notification of the decision" (s 412(1)(b)). In Hasan, North J considered the operation of a similar provision which appears in s 347(1)(b) of the Act, relating to the Migration Review Tribunal established under the Act. In relation to s 347(1)(b), reg 4.10(1)(a) of the Migration Regulations 1994 (Cth) ("the Regulations") made under the Act provides that the period "starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received". In the case of s 412(1)(b), reg. 4.31(2) prescribes that the period (relevant to the present case) "commences on the day on which the applicant is notified of the decision to which the application relates, and ends at the end of … 28 days". For present purposes, the formulations in regs 4.10(1)(a) and 4.31(2) are indistinguishable except as to the length of time prescribed.
60 In Hasan, North J concluded (at [29]):
The regulation appears to establish an envelope of time with a beginning and an end. It seems to require that the application be given to the Tribunal within that envelope. On this view, an application given after the end of the period would not comply with the requirement. Similarly, an application given before the start of the period would not comply with the requirement.
61 It is necessary to appreciate the reason why North J felt it appropriate to deal with this question. In Hasan, the applicant had filed an application for review nearly five months after notification of the decision of a delegate. The Tribunal in that case, the Migration Review Tribunal ("the MRT"), held that it did not have jurisdiction to deal with an application filed outside the prescribed period. Based on the argument arising from the requirements of s 66 of the Act, the appellants in Hasan sought orders compelling the MRT to hear and determine the application for review which had earlier been filed by them. North J held, in light of his conclusions about the requirements of s 66: that no effective notice of the delegate's decision had been given in that case; that time within which to file an application to review the delegate's decision had not commenced; and that the MRT had no jurisdiction to deal with an application filed before the commencement of the relevant period. He declined to make the order sought and said that the appropriate relief was an order directed to the Minister to provide proper notice of the delegate's decision. For reasons which will subsequently appear it is not strictly necessary to deal with this issue in the present case but it is desirable that something should be said about it.
62 We agree with North J that the language of the Regulations (reg 4.10 and reg 4.31) appears to establish an envelope of time within which an application must be made. That is so because they state that the period within which an application may be made "starts" (reg 4.10) or "commences" (reg 4.31) when notification of the decision occurs. We do not accept the submission made by the Minister in the present case that if the Regulations have that effect they are inconsistent with the sections which empower them. Each of s 347 and s 412 permit a prescription of time which ends not later than 28 days after notification of the decision. Neither s 347 nor s 412 exclude the possibility that the period between the decision and notification of it will not be a period during which an application might be made. Perhaps that was not intended by the drafter of the regulation but the language is sufficiently clear and must take priority over assumed, or even expressed, intent (Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [31]-[33]). It may be that it was not anticipated by those who drafted ss 347 and 412, or by the Parliament, that by delegated legislation a commencement to a prescribed period might be established, but neither section in our view excludes a regulation having that effect provided any period fixed does not extend beyond 28 days after notification of the decision. Neither reg 4.31 nor reg 4.10 has that effect.
63 Regulation 4.31 identifies the period to which it refers as one which "commences on the day on which the applicant is notified …". Under s 494C of the Act a document sent by mail within Australia (as it was in the present case) is taken to have been received 7 working days after the date of the document. In the present case, if the notification to the applicant by letter dated 22 May 2009 was effective, the notification was deemed to have been received on 2 June 2009. That is the day on which the applicant lodged her application for review with the RRT. On the facts of this case at least there is no difficulty arising from the terms of reg 4.31 unless there was, as the applicant contends and as was found in Hasan, no notification from which the prescribed period might commence. However, looking at the position more generally, there is another reason why lodging an application before the time of deemed receipt of the notification would not, in our view, despite the meaning we have attributed to reg 4.31 and reg 4.10, be ineffective. That reason arises from the considerations to be discussed in relation to s 66.
64 We find ourselves in disagreement with North J in Hasan insofar as his Honour stated a general rule about the requirements of s 66(2)(d)(iv). The present case is an example of the necessity to test the question whether jurisdictional error has resulted from an alleged failure to comply with a statutory requirement by reference to the particular circumstances of the case in question. It is not necessary to decide in the present case whether the failure to draw to the attention of a potential applicant for review the facility of lodging an application at a registry of the AAT in Brisbane, Adelaide or Perth would constitute a jurisdictional error in some circumstances. It does not do so in the present case.
65 There is no doubt in the present case that there was a notification of the decision made by the delegate which was, in every practical sense, effective to put the applicant on notice of her rights of review as contemplated by s 66 of the Act. As a result of the notification, the applicant applied to the RRT in Sydney, at the address provided in the letter to her. Sydney is where she lived. Any failure to notify the applicant of the possibility that she might file an application for review at the AAT in Brisbane, Adelaide or Perth (as well as at the RRT in Sydney or Melbourne) had no adverse consequences for the applicant. The applicant's argument can only succeed if the procedural direction in s 66(2)(d)(iv) is first interpreted as requiring notification of all possible places of lodgement (whether with the RRT directly or through the AAT) to all potential applicants for review regardless of where they reside. Furthermore, the argument can only succeed if such a requirement is seen as fundamental to the exercise of any jurisdiction by the RRT even if a potential applicant is effectively notified of a decision and, in response, files an application for review in the required manner and within the required time. Neither premise should be accepted. The reasons why neither premise should be accepted are interconnected.
66 In the case of an administrative tribunal, it is frequently necessary to consider the consequences of a departure from a statutory (or other) requirement before concluding that jurisdictional error has been committed (Craig v The State of South Australia (1995) 184 CLR 163 at 179-180; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]; Minister for Immigration and Citizenship v SZIZO (2009)238 CLR 627 at [35]-[36] ("SZIZO")). The exercise of jurisdiction by the tribunal must be, in some way, "affected" by the error or failure alleged. Counsel for the applicant submitted that the principle had no application in the present case because the failure of which the applicant complained did not arise during the process set in train by her application to the RRT but, rather, prevented that process from being commenced. The failure to specify all places at which her application might be made was said to be fatal to any application by her even though there were no adverse consequences, procedural or otherwise, from the alleged failure.
67 However, in our view there cannot be an adequate assessment of whether the requirements of s 66 of the Act have been breached, or of whether the jurisdiction of the RRT was not engaged, without some examination of the consequences of the alleged non-compliance. The judgment of the High Court in SZIZO has expressly drawn attention to the need to evaluate the practical consequences of failure to comply with procedural obligations under the Act. It is no longer possible, if it ever was, to speak of "imperative obligations" under the Act without specific attention to the purposes they are intended to serve. If the asserted failure to comply with s 66 is tested in that manner then the proposition that in all cases potential applicants for review must be advised of all places at which an application might be lodged, or to which it might be sent, cannot be sustained. The consequences of an alleged lack of information need to be assessed in a particular case.
68 If a potential applicant in Queensland, South Australia or Western Australia was denied an effective or adequate opportunity to make an application for review (despite being told they could do so by mail or fax to a registry of the RRT in Sydney or Melbourne) because they were not told their application might be accepted by the AAT in Brisbane, Adelaide or Perth, it is conceivable that there might be some room for the argument advanced in this case. Whether or not that was so would depend on all the circumstances of such a case. It is neither necessary nor desirable to attempt to answer such questions in the abstract. However, the possibility that some potential applicant might in some circumstances be denied an adequate or effective opportunity to exercise a statutory right to initiate a review of a delegate's decision does not have the consequence for which the applicant contends as a general rule. So far as her own circumstances are concerned, that proposition cannot be sustained either. In our respectful view the analysis in Hasan cannot be reconciled with the principle stated in SZIZO. Hasan should not be followed on this point.
69 The need to test any non-compliance with procedural requirements against the consequences in a particular case also resolves any difficulty which might have arisen in the present case from the operation of reg 4.31. On the facts of the present case the application made on 2 June 2009 would not have been ineffective to initiate a review by the RRT even if it had been lodged before the date of deemed receipt of the notification because no adverse consequence of any kind would be visited upon the applicant from early receipt of the application by the RRT. It is difficult to envisage a case where such a conclusion would ever be justified but it is not necessary to give a universal answer to that question.
70 For the reasons so far expressed, the applicant's contention that the RRT had no jurisdiction to deal with the application for review which the applicant lodged on 2 June 2009 should be rejected.
71 Rejection of the argument based on s 66 of the Act makes it necessary to consider the two alternative contentions advanced by the applicant to the effect that the jurisdiction of the RRT miscarried because it failed to deal, as required by the Act, with the applicant's claims and misunderstood the law.
72 Large parts of the applicant's claims about circumstances in Cameroon, and the way in which women were treated in that country, were found by the RRT to be identical, or almost identical, to commentaries found on the internet. Three such commentaries were identified. Nevertheless, the applicant insisted that her claims were written by her personally in French and then translated into English. When it stated its "Findings and Reasons", having set out the material and evidence from which those findings and reasons were drawn, the RRT did not deal again explicitly with this issue. However, it concentrated not surprisingly on those aspects of the applicant's claims which appeared to relate to the prospect of personal harm rather than generalised comments of the kind in the internet material or set out in the applicant's written claims. The RRT was not in error to take that approach.
73 A number of discrepancies between the applicant's written claims and her oral evidence to the RRT were also identified by the RRT, who raised these matters with the applicant at the hearing. For various reasons, the RRT found that the applicant was not credible. It did not accept her claims. It rejected her contention that she had a well-founded fear of persecution. The assessment of the significance of these matters was within the province of the RRT. Provided the RRT did not misunderstand the nature of its inquiry, or misapply itself to its functions, no jurisdictional error was committed even if its findings left room for legitimate argument on the merits.
74 In our view it has not been demonstrated that the RRT failed to understand or address the applicant's claims, either generally or in specific respects. In particular the RRT did not, as counsel for the applicant submitted, fail to consider relevant claims arising from the treatment of women in Cameroon. As the submissions for the first respondent pointed out, any claims about the treatment of women in Cameroon had to be sufficiently related to the personal circumstances of the applicant. In that respect the RRT found:
102. Although the applicant referred to the negative status of women in Cameroon, she has not identified any specific harm she would suffer in the reasonably foreseeable future because she is a women [sic] other than those arising from her association with the women's group and the forced marriage of one of her daughters, which the Tribunal has not accepted. Thus, the Tribunal finds that the applicant would not suffer serious harm amounting to persecution if she returned to Cameroon because she is a woman.
This finding illustrates that the RRT considered, but rejected, the applicant's claim that she would be at risk as a woman in Cameroon.
75 Similarly, as submissions for the first respondent also pointed out, a claim by the applicant on the present application that the RRT had failed to adequately address whether the harm feared by the applicant would be "serious harm" (see s 91R(1) of the Act) should not be accepted. As the RRT did not accept that the applicant faced relevant harm in Cameroon, the question of whether her claim was one about "serious harm" did not require separate attention.
76 The application for judicial review of the decision of the RRT should be dismissed.