FEDERAL COURT OF AUSTRALIA

NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 487

MIGRATION – refugee – whether the RRT erred in determining that it did not have jurisdiction to review a decision of the Minister’s delegate when the application was received out of time – whether the delegate’s decision is itself reviewable for jurisdictional error

Migration Act 1958 (Cth) s 66(1), 66(4), 91R, 412(1)(b), 474(1), 474(2), 474(2), 474(3), 474(4), 474(5), 494B, 494B(4), 494C(4)(a), 411(1)(c), 412, 412(1)(b); 425, 414(1), 475A(b), 475(2)(d), 476, 476(1), 476(6), Reg 2.16(3), 4.31(2)(b), Part 5, 7, 8

Judiciary Act 1903 (Cth) s 39B(1), 39B(1A)(c)

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501

NAJT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 144 OF 2003

HELY J

21 MAY 2003

SYDNEY

THE COURT ORDERS THAT:

1.         The application is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant is a citizen of the People’s Republic of China.  She arrived in Australia on 8 February 2002.  On 22 March 2002 the applicant applied for a protection visa.  She claimed that she had a well-founded fear of persecution on religious and/or political grounds by reason of the applicant’s association with, and practice of Falun Gong, which is banned under Chinese law.  The applicant claimed that she was forced to flee China after being subjected to inhuman treatment and cruel persecution.

2                     The form of application nominated 54/61-65 Macarthur St, Ultimo, Sydney as the applicant’s current residential address in Australia and as her current postal address.

3                     On 16 April 2002 the Department of Immigration & Multicultural & Indigenous Affairs (‘the Department’) wrote to the applicant attaching country information and issues which were of concern to the Minister’s delegate for her comment.  The letter was posted to the applicant at the Ultimo address nominated in her application form, but was returned to the Department unclaimed on 9 May 2002.

4                     On 22 May 2002 the Department received a letter dated 14 May 2002 from the Fa Lun Fo Xue Association of Australia Inc confirming that the applicant is a Falun Gong practitioner, and that she faces persecution on that account if returned to China.

5                     On 28 May 2002 the Minister’s delegate refused the application for a protection visa.  The delegate summarised the applicant’s claims as follows:

‘3.1      THE APPLICANT’S CLAIMS

The applicant claims that she commenced practising Falun Dafa (Falun Gong) on 20 August, 1998.  She claims that she was threatened with dismissal by her work unit supervisors if she did not desist her association with and practice of Falun Gong.  She claims that 3 people were appointed to monitor her activities at work, that her telephone was bugged to monitor her conversations, that people would check her Internet websites and that she would be followed to find out what she was doing and whom she may have been meeting.  She claims that on one occasion had it not been for the intervention of her employer she would have been arrested by the Public Security Bureau.  She further claims that she had been actively involved in the distribution of Falun Gong material and signposting and on a number of occasions was almost detained.  As a result of the arrest, imprisonment and persecution of many of her Falun Gong associates, she became concerned for her personal safety and decided to flee to Australia.  She further claims that since arriving in Australia she has partaken in various demonstrations protesting the Chinese Government’s treatment of Falun Gong practitioners and that she had been identified and photographed by Chinese ‘spies’ in Australia and would face persecution were she required to return.’

6                     In relation to the applicant’s claims, the delegate found that:

(i)         the applicant had provided no documentary evidence of her membership of Falun Gong in China or her practice and involvement in demonstrations in Australia, apart from a letter of support from Fa Lun Fo Xue Association of Australia Inc;

(ii)        the applicant did not have any trouble obtaining a passport or departing China;

(iii)       the applicant did not claim that her husband or other family members had been mistreated since her departure;

(iv)       the applicant did not claim to be an organiser or leader within Falun Gong, but rather claimed to be a practitioner and activist; and

(v)        the applicant did not claim to have been detained, imprisoned or specifically harmed or mistreated.

7                     The delegate was not satisfied that the applicant had a well-founded fear of persecution on the ground of religion or political opinion or that there was a real chance of persecution if she were to return to China because:

(i)         the applicant did not suffer mistreatment which would amount to serious harm or systematic and discriminatory conduct of such a nature as to constitute Convention-based persecution;

(ii)        taking into account that the applicant had resided at one address until the time of her departure for Australia and had been employed continuously, there was no threat of persecution;

(iii)       the applicant’s story lacked credibility because despite her claim that she was an activist and under surveillance, she was not identified and detained, her employer protected her and she was able to avoid detention by the authorities on numerous occasions;

(iv)       if she were of adverse interest she would have been prevented from obtaining a passport and departing China; and

(v)        the return of the Department’s letter on 9 May 2002 as unclaimed reflected poorly on the genuineness of her claims.

8                     On 28 May 2002 a letter bearing that date was sent by registered post to the applicant at her Ultimo address notifying her of the decision refusing to grant a protection visa and enclosing a decision record giving the reasons for that decision, this was returned to the Department unclaimed on 4 July 2002.

9                     Section 66(1) of the Migration Act 1958 (Cth) (‘the Act’) provides that where the Minister refuses to grant a visa he is to notify the applicant of the decision in the prescribed way.  A failure to give notification does not affect the validity of the decision: s 66(4).  Regulation 2.16(3) provides that the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in s 494B.  One of those methods is that provided for by s 494B(4) which provides for despatch of a document by prepaid post within three working days of the date of the document to the last address for service provided to the Minister by the recipient for the purpose of receiving documents, or the last residential or business address provided to the Minister by the recipient for the purpose of receiving documents.  Section 494C(4)(a) provides that a document despatched to an address in Australia in accordance with s 494B(4) is deemed to be received seven working days after the date of the document.  In accordance with these provisions, the applicant is taken to have received the letter of 28 May 2002 on 6 June 2002.

10                  The delegate’s decision refusing to grant a protection visa to the applicant is an RRT-reviewable decision: s 411(1)(c).  An application for a review by the Refugee Review Tribunal (‘the RRT’) of an RRT-reviewable decision must be given to the RRT within the period prescribed, being a period not later than 28 days after notification of the decision: s 412(1)(b).  The 28 day period prescribed by s 412 and Reg 4.31(2)(b) expired on 4 July 2002.  On 4 July 2002 the Department’s letter of 28 May 2002 was returned to the sender.

11                  On 11 December 2002 the applicant claims to have learnt, for the first time, that her protection visa application had been refused but she had not received any letter from the Department to that effect.

12                  On 12 December 2002 the applicant lodged an application to the RRT for review of the delegate’s decision.  On 29 December 2002 the applicant lodged a submission with the RRT explaining the cause of the delay in the submission of the application which included the following:

‘I am still not sure of exactly why I didn’t receive the registered mail [ie the letter of 28 May 2002].  The most probable explanation would be that the postman came when nobody was home and left a note in the mailbox.  Though not quite likely, but I possibly had mistaken the parcel-collection note to be some advertisement and threw it away.  So the letter was returned as unclaimed mail.’

13                  By a decision made on 6 February 2003 the RRT determined that it did not have jurisdiction to review the decision refusing to grant the applicant a protection visa as the application for review was not received by the RRT until 12 December 2002, well after the prescribed period had expired on 4 July 2002.

14                  On 20 February 2003 the applicant filed an application with the Court.  The application was expressed to be made under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth).  It is unclear whether the decision the subject of that application is the decision of the Minister’s delegate, or the decision of the RRT or both.  The relief sought in the application is as follows:

‘1         A review of the decision to be granted a protection visa be made from the decision of the Department of Immigration and Multicultural and Indigenous Affairs;

2          the applicant be granted a protection visa;

3          the applicant be allowed to remain within the jurisdiction until a determination is made in her matter.’

15                  The grounds of the application are expressed to be as follows:

‘1         The applicant fears harm and mistreatment if returned to the country of origin.

2          The applicant fears serious harm, systematic and discriminatory conduct so as to constitute persecution.

3          Due to a well-founded fear the applicant is not able to obtain protection from the relevant authorities in the country of origin.

4          Significant reasons exist for the fear of persecution by the applicant.

5          There is a real chance of persecution of the applicant by the authorities of the country of origin.’

These grounds impermissibly invite a merits review of the decision by the Minister’s delegate refusing to grant a protection visa to the applicant.

Review of the RRT’s decision

16                  The Federal Court has jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) to grant appropriate relief against the Minister and/or a member of the RRT as an officer of the Commonwealth as well as jurisdiction under s 39B(1A)(c) in relation to any matter arising under any laws made by the Parliament.

17                  In the Minister’s submission, a decision that the RRT has no jurisdiction to entertain an application for review is prima facie a ‘privative clause decision’ within s 474(2) and (3) of the Act, as it is a decision of an administrative character made under the Act and does not fall within certain classes of decision excluded from the ambit of ‘privative clause decision’ (Act, s 474(2), (4), (5)).  Section 474(1) provides that a ‘privative clause decision’ is not reviewable by the Federal Court.

18                  However, applying Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 the expression ‘decision … made under this Act’ in s 474(2) must be read so as to refer to a decision which involves neither a failure to exercise jurisdiction nor an excess of jurisdiction: (2003) 195 ALR 24 at [19], [76] and [162].  If there has been a jurisdictional error because, for example, of a failure to discharge imperative duties or to observe inviolable limitations or restraints, the decision is not a ‘decision made under this Act’ within the meaning of s 474(2) and thus is not a ‘privative clause decision’ as described in s 474(2) and (3) of the Act.  I refer to this type of error hereafter as ‘nullifying error’.

19                  There may be room for debate as to whether a decision by the RRT that it has no jurisdiction to entertain an application made to it is a decision ‘of an administrative character’.  I do not find it necessary to embark upon a consideration of that question because the RRT’s decision that it did not have jurisdiction to entertain the application is plainly correct.

20                  Pursuant to s 412(1)(b) of the Act an application for review of an RRT-reviewable decision must be given to the RRT within the prescribed period of 28 days after notification of the decision.  The Act contains no provision for extension of time.  The effect of the provisions of the Act and of the Regulations referred to above, is that the prescribed period expired on 4 July 2002 even though the applicant did not have actual knowledge that her application for a protection visa had been refused until some five months after that date.

21                  The obligation (and the entitlement) of the RRT to review a decision of the Minister’s delegate refusing to grant a protection visa is subject to a valid application being made under s 412: s 414(1).  As there was no valid application made under s 412, the RRT correctly concluded that it lacked jurisdiction to determine the application which was given to the RRT outside the prescribed period.

22                  If, and insofar as the application to this Court seeks relief under s 39B of the Judiciary Act 1903 (Cth) in relation to the decision of the RRT given on 6 February 2003, the application must be dismissed.

Review of the delegate’s decision

23                  Under the Act as it stood prior to the amendments which took effect in October 2001, an RRT-reviewable decision was not a judicially-reviewable decision: s 475(2)(d).  Thus whilst an application might have been made to the Federal Court to review a decision of the RRT, no such application could have been made in relation to a decision of the Minister’s delegate.

24                  Section 476(1) of the Act now provides that despite any other law (including s 39B of the Judiciary Act) the Federal Court does not have any jurisdiction in relation to a primary decision.  A ‘primary decision’ is defined in s 476(6) of the Act as follows:

‘primary decision means a privative clause decision:

            (a)        that is reviewable, or has been reviewed, under Part 5 or 7 or section 500; or

            (b)        that would have been so reviewable if an application for such review had been made within a specified period.’

25                  A ‘privative clause decision’ is defined in s 474(2) of the Act as meaning, relevantly, a decision of an administrative character made under this Act.  If a delegate’s decision which is potentially reviewable by the RRT under Part 7 is vitiated by nullifying error, then the reasoning in Plaintiff S157/2002 leads to the conclusion that the decision was not made ‘under this Act’.  It is then not a privative clause decision.  It follows that it is not a primary decision for the purposes of s 476(6) of the Act, as primary decisions are a subset of privative clause decisions.  Consequently, the jurisdiction of the Federal Court to review the delegate’s decision arising under s 39B of the Judiciary Act, is not excluded by s 476(1).  This conclusion is reinforced by s 475A(b) which provides, in a somewhat circular fashion, that s 476 does not affect the jurisdiction of the Court under s 39B in relation to a decision in respect of which the Court’s jurisdiction is not excluded by s 476.

26                  The submissions put on behalf of the Minister accepted that the mechanical interpretation of the provisions of Part 8, in the light of Plaintiff S157/2002, made this conclusion unavoidable.  However, the Minister submitted at a more general level, it is arguable that this result is not the intention of the Act.  In the Minister’s submission, that is a matter which goes to the discretion of the Court to decline to exercise jurisdiction or grant relief.

Discretion

27                  Under the Act, merits review of the delegate’s decision is available by a specialist tribunal provided a valid application for review is made in accordance with s 412.  The hearing procedure laid down by s 425 of the Act accords an applicant the opportunity to appear before the Tribunal to give evidence and to present argument.

28                  Ordinarily, where de novo review on the merits is available which will resolve fully and directly any complaint which would be dealt within judicial review, it should first be exhausted.  Save in exceptional circumstances, prerogative relief will be withheld on discretionary grounds where other suitable remedies were available and have not been used: Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 508-512.

29                  Whilst carefully prepared submissions were put to me on behalf of the Minister as to whether prerogative relief should be withheld on discretionary grounds in a case such as the present, I do not think that it is appropriate to deal with such submissions in the abstract.  Before deciding whether relief should be refused on discretionary grounds it is first necessary to determine whether the delegate’s decision was infected by nullifying error, as the nature of any such error might itself be relevant to the exercise of the discretion.

Whether the delegate’s decision is infected by nullifying error

30                  The applicant does not speak English.  She has no legal training.  She appeared for herself with the aid of an interpreter, but without legal representation.  She neither had, nor claimed to have, any appreciation of the limited role which the applicable legislation allows this Court to play in the supervision of decisions refusing to grant a protection visa.  At the conclusion of the hearing I received a request from the applicant to be allowed a period of seven days within which to lodge written submissions.  I acceded to that request, but no such submissions have been received.

31                  The form of application to this Court does not disclose any tenable ground for setting aside the decision of the Minister’s delegate, nor did the applicant put any such matter to me in the course of her submissions.  However, I have reviewed the delegate’s decision even though the applicant has not herself identified any potentially reviewable error.

32                  The application for a protection visa was based largely on events which the applicant asserted had occurred in China prior to her arrival in Australia, as a Falun Gong practitioner and activist.  The delegate was required to consider this material, and make an assessment as to whether she had a well-founded fear of persecution if she were now to be returned to China. It was open to the delegate to find that the events complained of did not amount to serious harm or systematic and discriminatory conduct within s 91R of the Act.  It was also open to the delegate to find that, whatever her subjective fear of arrest, she did not have a well-founded fear of treatment sufficiently serious to constitute persecution.  The factual assessment undertaken by the delegate was entirely unexceptionable.

33                  Country information indicated that only leaders and organisers of public demonstrations relating to Falun Gong came to the attention of the authorities, were dealt with, and in certain cases jailed.  It was open to the delegate to conclude on the basis of country information that the applicant, who claimed only to be a practitioner and activist within Falun Gong, would not be likely to come to the attention of the authorities.

34                  Further, the delegate found that apart from the letter from the Association, the applicant’s claims were not supported by any documentary evidence, that she had no difficulty in obtaining a passport and leaving China, and that she did not claim that her family had been mistreated since her departure.  It was open to the delegate to reach adverse findings as to the applicant’s credibility, this being a function of the primary decision-maker, for which detailed reasons need not be given.  In fact, reasons were given as to why the applicant was not believed on these matters.  No error is apparent in these findings of the delegate.

35                  If any error of law could be established in the reasons of the delegate it could not be shown to be a nullifying error.  There is no basis for any denial of procedural fairness.  Nor is there any basis for establishing that the delegate failed to discharge a duty imposed by the Act or to observe an inviolable limitation or restraint in the Act.

Conclusion

36                  Insofar as the application seeks relief in relation to the decision of the Minister’s delegate, the application is dismissed.

Associate:

Dated:              21 May 2003