FEDERAL COURT OF AUSTRALIA

NAWR v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1520

MIGRATION – whether invitation by the Refugee Review Tribunal to give additional information required the information to be supplied within the “prescribed period” – whether form of invitation complies with the legislation

Judiciary Act 1903 (Cth), s 39B

Migration Act 1958 (Cth), ss 422B, 424, 424B, 424C, 425, 441A, 441C

Migration Regulations 1994 (Cth), reg 4.35

NACI v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 154 cited

Tio v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 117 cited

Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102 cited

SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 cited

Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 cited

Abebe v Commonwealth (1999) 197 CLR 510 cited

NAWR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1543 of 2003

SACKVILLE J

SYDNEY

19 DECEMBER 2003

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs, other than the costs of the second day of the hearing.

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

REASONS FOR JUDGMENT

1                     This is an application under s 39B of the Judiciary Act 1903 (Cth) seeking relief in respect of a decision of the Refugee Review Tribunal (“RRT”) handed down on 30 September 2003.  The RRT affirmed a decision of the delegate of the respondent (“the Minister”) not to grant the applicant a protection visa. 

2                     The applicant is an Indian citizen.  He arrived in Australia on 12 September 2002 and shortly thereafter lodged an application for a protection (Class XA) visa.  On 10 December 2002, the delegate refused to grant the protection visa.  On 2 January 2003, the applicant applied to the RRT for review of the delegate’s decision.

3                     The applicant appeared unrepresented at the hearing in this Court.  He filed written submissions in support of his application.  The grounds upon which he relies are identified in the written submissions as follows:

“1.  The Decision Maker failed to follow the procedures that were required by the Act, to be observed while deciding the case of the applicant, leading to the conclusion that the decision maker had not acted in good faith in making the decision.  The Decision Maker did not endeavour bona fide to exercise its functions and powers to review the applicant’s application.

2.      The Decision Maker had identified the wrong issue, asking himself a wrong question, ignoring relevant material, making erroneous finding and reaching a mistaken conclusion, thereby committing an error of law constituting jurisdictional error.

3.      The Decision Maker has exceeded his purported exercise of power in a way, thereby committing an error of law, thereby a constrictive [sic] failure to exercise jurisdiction along with procedural fairness.”

4                     The submissions include extracts from a number of judgments of the High Court and this Court, but without any clear indication how they might assist the applicant.  However, the applicant’s specific complaints appear to be that

·        the RRT had mistakenly found that the applicant’s Australian visa had been issued in Sri Lanka, and had erroneously inferred from that finding that the applicant had travelled to Sri Lanka and subsequently returned to India;

·        the RRT had made credit findings adverse to the applicant without ever having provided him with an oral hearing; and

·        the RRT had erred because it had found against the applicant simply because he had failed to produce documents on time.

5                     In the course of the hearing it became clear that an issue was whether a letter dated 4 August 2003 from the RRT to the applicant had been posted within three days of that date.  If so, s 441C(4) of the Migration Act 1958 (Cth) (“Migration Act”) provides that the recipient is deemed to have received the document seven working days after the date it bears.  Mr McInerney, who appeared for the Minister, sought an adjournment to adduce evidence in proper form proving the date of posting.  I granted the adjournment and gave directions for the filing and service of an affidavit directed to that issue.  The affidavit was read at the adjourned hearing.

the applicant’s claims

6                     The RRT noted that the applicant claimed that he had left India because of a threat to his life and that he feared that he would either be killed or prosecuted by police if he returned to that country.  He also said that he feared that he would be harmed by “opposition party workers”. 

7                     The applicant said that he had been the youth secretary of the Dravida Munnetra Kazhagam (“DMK”) political party in his local district of Tamil Nadu state in India.  The applicant claimed that he had been “politically very active” in the DMK, which was the opposition party in Tamil Nadu.  He claimed that he had participated in strikes protesting against the arrest of the DMK President and former Chief Minister, Dr M Karunanidhi, on 29 June 2001.  For this reason, according to the applicant, the police issued an arrest warrant against him “for instigating violence”. 

8                     The applicant said that, at the same time, he had been threatened by party workers and supporters of the rival AIADMK Party.  He had narrowly escaped when they had tried to kill him by throwing a petrol bomb at him.  The AIADMK people and police had searched his home and threatened his family members.  Thereafter, according to the applicant, he could not leave his hiding place for fear of being killed or prosecuted.  It was this that led him to obtain a visitor’s visa for Australia.

the procedural background

9                     Because the applicant complains about the RRT denying him an oral hearing, it is necessary to explain the procedural history of the matter leading up to the RRT’s decision.

10                  The application lodged in the Department on 8 October 2002 was accompanied by the applicant’s statutory declaration, which was one page in length.  This made the claims recorded above.

11                  On 22 October 2002, the delegate wrote to the applicant at his residential and postal address as recorded in the application for a protection visa.  The letter sought a written response supplying the following details of the application:

“1   Details of your employment, ie, the reference to ‘self-employment, August 1995 – September 2002’, as stated in the application must be clarified in full detail.

2.      Correct name details – Your passport states your family name to be [M-], and your given name to be [S-].  Your application states your family name as [S-], and your given name as [M-].  Please clarify this.

3.      Correct telephone details – a call by the Department to the number you quoted on your application…was answered by a person who did not know of you.  Please provide the correct telephone contact number for yourself.

4.      Full details and documentary evidence of the right to reside (either temporarily or permanently) in Australia and in Singapore, as stated by you in your application.

5.      Additional information you may hold, eg, identity documents, business papers/licences, political documents or identity card, any documentation relevant to the claims you have made in your application.”

12                  The applicant replied on 12 November 2002 giving his correct name and telephone number. He said he would submit employment details as soon as possible as he had to obtain them from India.  His response to question 4 was as follows:

“4.  I have provided the documentary evidence of the right to reside in Singapore and Australia as in the copy of my passport where the Visa for the above mentioned countries are stamped.”

The applicant provided no further information.

13                  The delegate rejected the application.  The delegate noted that the applicant had provided “no substantiating evidence relating to his membership of, and work with, the DMK in the Tanjore District of Tamil Nadu”.  Further, the applicant had lawfully departed India, using his own passport; from Chennai airport in Tamil Nadu.  Had the applicant been the subject of an arrest warrant, he would not have been able to leave freely.  Moreover, he had provided no proof of any warrant having been issued against him.

14                  The applicant made no further claims when applying to the RRT seeking review of the delegate’s decision.  In response to a question on the form which asked him to tell the RRT why he considered himself to be a refugee, the applicant simply said this:

“Political threat.  As soon as possible, I will submit relevant document and my case evidence”.

15                  Although the applicant contacted the RRT on two occasions to notify changes of address, he provided no further information in the ensuing seven months following lodgement of the application for review.

16                  On 4 August 2003, the RRT wrote to the applicant seeking further information.  The letter was as follows:

“The Tribunal requests that you provide the following additional information

·        Your detailed reasons for disagreeing with the application under review;

·        Your passport (the original not a copy);

·        Any evidence you have of your involvement with the DMK;

·        Any evidence you have of  your being sought by the police;

·        An explanation of why, if you were being sought by the police, you signed a statutory declaration stating that you knew of no criminal investigation concerning yourself and knew of [no] charges pending against you;

·        The date when, and the place where, a petrol bomb was allegedly thrown at you;

·        The date and place of the protest strike in which you claim to have participated;

·        Details of all other acts of harm directed at you;

·        An explanation of why you did not seek protection in Sri Lanka or Singapore, and why you returned voluntarily to India from Sri Lanka if you were genuinely in fear of persecution; and

·        Any other claims, evidence of arguments you wish the Tribunal to consider.

This information is to be provided in writing and must be received at the Tribunal by 27 August 2003.

…

IF YOU DO NOT PROVIDE THE ADDITIONAL INFORMATION BY 27 AUGUST 2003 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE.”

The letter was sent to the applicant’s new address, which he had previously notified the RRT.

17                  There is no dispute that the applicant received the RRT’s letter, since he replied on 25 August 2003 as follows:

“I thank you for your letter dated 4 August 2003, requesting me to provide additional information.

As you can appreciate, since collecting the relevant information as asked for, from India, under difficult circumstances, is a time consuming affair, I pray and request that I be granted extension of time to submit the documents until 27^th October 2003.

Hoping my request will be considered with sympathy.”

18                  The applicant’s reply was received by the RRT on 26 August 2003.  The reply gave the applicant’s address as that to which the RRT’s letter of 4 August 2002 had been directed.

19                  The RRT declined to extend time.  An officer of the RRT telephoned the applicant on 26 August 2003 to advise him of the decision and left a message on his mobile telephone.  The RRT also communicated its decision by a letter sent on 26 August 2003 to the applicant at the same address as the previous correspondence.  The letter was in the following terms:

“On 25/08/2003 you requested more time to provide the following additional information requested by the Tribunal:

…

The Tribunal has NOT granted an extension of time for providing the additional information.  The information is to be received at the Tribunal by 27 August 2003.

IF YOU DO NOT PROVIDE THE ADDITIONAL INFORMATION BY 27 AUGUST 2003 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE.”

20                  The RRT waited a week before determining what action it should take.  The applicant, however, made no further contact.  The RRT made its decision on 3 September 2003 without affording the applicant any further opportunity to be heard.  The RRT handed down its decision on 30 September 2003 and duly notified the applicant.

legislation

21                  Section 424(1) of the Migration Act empowers the RRT, in conducting the review of the delegate’s decision, to “get any information it considers relevant”.  Section 424(2) is as follows:

“Without limiting subsection (1), the Tribunal may invite a person to give additional information.”

An invitation to an applicant must be given by one of the methods specified in s 441A: s 424(3).

22                  If a person is invited under s 424 to give additional information, the invitation is to specify the way in which the additional information is to be given, being the way the RRT considers to be appropriate in the circumstances: s 424B(1).  Section 424B(2) provides that

“[I]f the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period”.

If a person is to respond to an invitation within a prescribed period, the RRT may extend the period for a prescribed further period and then the response is to be made within the extended period: s 424B(4).

23                  The Migration Regulations 1994, reg 4.35 applies for the purposes of s 424B(2) of the Migration Act if a person is invited to give additional information other than at an interview: reg 4.35(1).  Regulation 4.35(3) provides as follows:

“(3)     If:

(a)               the invitation relates to an application for review of a decision that does not apply to a detainee; and

(b)               the information or comment to which the invitation relates is to be provided from a place in Australia;

the prescribed period for giving the information or comments starts when the person receives the invitation and ends at the end of 14 days after the day on which the invitation is received.”

24                  Sections 424C and 425 relevantly provide as follows:

“424C (1)       If a person:

(a)               is invited under section 424 to give additional information; and

(b)               does not give the information before the time for giving it has passed;

            the Tribunal may make a decision on the review without taking any further action to obtain the additional information.

…

425.     (1)        The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

            (2)        Subsection (1) does not apply if:

(a)               …

(b)               …

(c)                subsection 424C(1) or (2) applies to the applicant.

            (3)        If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”

            Section 441A of the Migration Act specifies the methods by which the RRT may give documents to a person for the purposes, inter alia, of s 424.  Section 441A(4) provides that the methods include dating the document and then dispatching it within three days of the date of the document by prepaid post or other means to the last address for service provided to the RRT by the recipient in connection with the review.  In such a case, pursuant to s 441C(4):

“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)      …”.

25                  Section 422B(1) of the Migration Act, which took effect on 4 July 2002, states that Div 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice rule in relation to the matter it deals with.  Sections 424, 424B, 424C and 425 are within Div 4 of Part 7.

the rrt’s reasons

26                  The RRT set out the circumstances leading to the applicant’s request for an extension of time to reply to the RRT’s letter of 4 August 2003.  The RRT said that it took the view that the applicant had had ample time to collect any relevant information in the 11 months since arriving in Australia and, in particular, in the period of more than seven months since lodging his application for review of the delegate’s decision.  Moreover, the RRT expressed the view that most of the information requested could have been provided from the applicant’s own knowledge.  In these circumstances, the RRT had declined to grant an extension of time. 

27                  The RRT referred to the terms of ss 424 and 425 of the Migration Act.  The RRT considered that it was appropriate to proceed to a decision without giving the applicant an opportunity for an oral hearing.  It expressed the view that the applicant had had ample opportunity to provide details to support his claims for recognition as a refugee from India.  He had failed on two occasions to provide evidence from his passport when requested to do so by the Department and by the RRT itself.  Similarly, he had been placed on notice by the Department in October 2002 that supporting documentation would be relevant to his claim.  The RRT considered that, if any such documentation were available, the applicant would have obtained it by that time.

28                  Moreover, the applicant had failed to respond to the RRT’s invitation for him to provide further information which went to the very heart of his claim.  Nor had he responded to its request for details of any other claims or arguments he might have to put before the RRT.  The RRT inferred from this that further invitations to the applicant were very likely to prove fruitless.  Accordingly, the RRT decided to proceed to a decision on the review without taking any further action to obtain additional information from the applicant and without inviting him to a hearing.

29                  The RRT stated its reasons for affirming the delegate’s decision as follows:

“Despite being asked to do so, the applicant has provided no details to flesh out his claims.  For example he has not said where or when key events in his statement of claims took place.  Though he has had several months in which to collate relevant evidence, he has failed to do so.  While the Tribunal understands that a person fleeing persecution might not be in a position to bring with him documents which conclusively prove his assertions, the Tribunal considers that, if he were a district level officer of the DMK, he would have been able to contact that party from Australia and seek some form of corroboration from that party.  The Tribunal considers that, if the claimed events actually took place, he would be able to tell from his own memory where and when the alleged strike took place and where and when a petrol bomb was hurled at him.

The applicant stated explicitly in his application form that there was no criminal investigation or charges pending against him.  This contradicted what he said in his statement.  Both statements were in the form of statutory declarations.  The Tribunal asked the applicant to comment on this contradiction but he has failed to do so.

On the scant information before it, the Tribunal is not prepared to accept the applicant’s claims that he was an officer of the DMK, or that police and AIADMK officers have sought to harm him.

Further, it is clear that the applicant was outside India in July 2002.  This is evident from the fact that he applied for a visa in Sri Lanka.  The applicant has withheld the full details of his travel from the Tribunal and from the Department by refusing to submit even copies of all pages of his passport.  Since he left India in September 2002, it is obvious that he returned to India at some stage.  Given his advice that he has never been deported from any country, the Tribunal infers that his return to India was voluntary.  The Tribunal specifically asked the applicant to explain why, if he feared persecution in India, he returned to that country.  He is on notice that his failure to seek protection in either Sri Lanka or Singapore and his voluntary return to India from Sri Lanka calls into question the genuineness of his stated fears of persecution, but he has not responded.

In all the circumstances, the Tribunal finds that the applicant’s stated fears of persecution in India are not genuine.  The Tribunal therefore finds that the applicant does not have a well-founded fear of persecution in India.”

reasoning

30                  The applicant’s contention that he had been improperly denied an oral hearing before the RRT must be considered in the light of the legislation to which I have referred.  The general rule is that the RRT must invite an applicant to appear before it to give evidence and present arguments: s 425(1).  However, this requirement does not apply if s 424C(1) applies to the applicant.  Section 424C(1) applies if a person is invited under s 424 to give additional information and does not give the information before the time for giving it has passed.  In that case:

• the RRT may make a decision on the review without taking any further action to obtain the additional information (s 424C(1)); and
• the applicant is not entitled to appear before the RRT (s 425(3)).

31                  In this case, the RRT, by its letter of 4 August 2003, requested the applicant to provide specified additional information.  It was empowered to take this course by s 424(2) of the Migration Act.

32                  The letter required the information to be received by the RRT by 27 August 2003 and warned that if the applicant did not do so, the RRT “may make a decision on the review of your case without further notice”.  Section 424B(2) relevantly requires the invitation to give additional information

“to be given within a period specified in the invitation, being a prescribed period”.

The prescribed period for giving the information starts when the person receives the invitation and ends at the end of 14 days after the day on which the invitation is received: reg 4.35(3).  Where the document is dispatched within three days of the date it bears, the applicant is taken to have received the document seven working days after that date (s 441C(4)(a)).

33                  The effect of s 424B(2) of the Migration Act is to require the invitation to specify the prescribed period as the period within which the additional information is to be provided.  No other period can be specified, although the RRT has power under s 424B(4) to extend the period by a prescribed further period: NACI v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 154, at [5], per curiam.  The evidence established that the letter of 4 August 2003 was in fact dispatched by prepaid post on the date it bore.

34                  In this case, the applicant is taken to have received the RRT’s letter seven working days after the date of the document.  Since that date was 4 August 2003, the letter is taken to be received on 13 August 2003: s 441C(4).  The prescribed period ended at the end of 14 days after 13 August 2003: reg 4.35(3).  Thus the prescribed period ended at the end of 27 August 2003 – that is, at midnight on 27 August 2003.  The RRT’s letter required the applicant to provide the information by 27 August 2003.  The letter did not specify any particular time on 27 August 2003 by which the applicant had to comply with the requirement. 

35                  In my view, the letter complied with the statutory scheme I have outlined.  This conclusion is consistent with the decision of the Full Court in NACI v Minister, the facts of which were relevantly indistinguishable from those of the present case.  The conclusion is also consistent with the reasoning of the majority in Tio v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 117.  There the relevant provision (Migration Act, s 135(1)) required a written notice to be given to the holder of a visa inviting the recipient to make representations within “28 days after the notice is given”.  Lindgren J interpreted this provision as requiring a full period of 28 days, expiring at midnight on the 28^th day.  Lindgren J said this (at 120-121 [18]):

“Importantly, since a notice complying with s 135(1)()b) is not required to be in any particular form, it might be expressed in various ways, as the legislature must be taken to have contemplated, including the following:

1.                  ‘within 28 days after [the date on which the notice is given]’.

2.                  ‘by [the date which is the 28^th day after the date on which the notice is given]’.

3.                  ‘by midnight on [or “the end of”] [the last day of the period of 28 days after the date on which the notice is given]’.

4.                  ‘by midnight on [or “the end of”] [the date which is the 28^th day after the date on which the notice is given]’.” (Emphasis in original.)

It will be seen that Lindgren J’s second formulation is in substance the same as that used by the RRT in its letter of 4 August 2003.  Indeed the notice at issue in Tio v Minister asked the recipient to forward his representations “by 7 March 2002 [the 28^th day]”.  The reasoning of Downes J also was similar to that of Lindgren J: see at 127-128 [55]-[57], [63]-[66].

36                  It follows that the applicant was not entitled to an oral hearing and that the RRT was empowered to make a decision on the review without taking any further action to obtain the additional information.  The RRT appreciated that it had a discretion to proceed in the manner contemplated by s 424C(1) and exercised that discretion adversely to the applicant.  The RRT also recognised that it had a discretion under s 424B(4) to extend the period for a further prescribed period but declined to do so.  It explained in its reasons why it had taken that course.  The RRT committed no error by taking into account the fact that the applicant had had ample opportunity to provide details to support his claim, had failed to respond to requests for further information on previous occasions and, in the RRT’s view, was unlikely to respond to further invitations to provide additional material.

37                  Nor did the RRT err by responding as it did to the applicant’s letter of 25 August 2003.  It may well be, as the applicant asserted from the bar table, that he did not receive the letter dated 26 August 2003 until 28 August 2003.  However, the RRT did what it could to contact the applicant who had chosen to communicate with it just before expiry of the deadline.  The applicant was not entitled to assume (and there is nothing to suggest that he did assume) that his request for an extension of time would be granted.  It would have been a very simple matter for him, for example, to have telephoned the RRT to ascertain the position.

38                  The Minister submitted that even if the RRT’s letter of 4 August 2003 did not comply with the implicit requirement in s 424B(2) of the Migration Act that the invitation specify the prescribed period as the period within which the applicant had to give additional information, the non-compliance did not constitute a jurisdictional error on the part of the RRT.  Mr McInerney relied on the reasoning of the Full Court in Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102.  There the Full Court held that the RRT’s failure to give an invitation to the appellant by one of the methods specified in s 441A (the invitation had not been given in writing) did not constitute jurisdictional error, at least where there was no failure to accord procedural fairness.

39                  In view of the conclusion I have reached, it is not necessary for me to consider whether the reasoning in NAHV v Minister applies to the circumstances of the present case.  I prefer to express no opinion on that question.

40                  There is no basis for concluding that the RRT acted in bad faith: see SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749, at 756, per curiam; Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142, at [21], per curiam.  The RRT in the present case correctly identified the provisions relevant to the exercise of its discretion and exercised that discretion.  The fact that it did so adversely to the applicant does not establish that the RRT preferred “mere whim or fancy…to considered judgment” or that it acted with a want of bona fides.  Nor is there any thing that would support a finding that the RRT was biased or that a reasonable observer would entertain an apprehension of bias on the part of the RRT.

41                  The applicant complained about the factual findings made by the RRT.  The only matter requiring specific attention is his complaint that the RRT found that the applicant had applied for an Australian visa in Sri Lanka in July 2002 and inferred from that fact that the applicant must have returned to India between July 2002 and his departure in September 2002.  The applicant asserts in his written submissions that he applied for a visa in New Delhi and the High Commission chose to process the application in Sri Lanka.  I admitted his passport into evidence.  In the absence of other evidence, I am prepared to infer from the absence of any record in the passport of the applicant entering or leaving Sri Lanka that his assertion is correct as a matter of fact.

42                  Even so, it does not follow that the RRT made a jurisdictional error simply by making what turns out to be a wrong factual finding on an issue relevant to the applicant’s credibility: Abebe v Commonwealth (1999) 197 CLR 510, at 560, per Gummow and Hayne JJ.  The RRT was entitled to proceed on the material before it.  On that material (which did not include the appellant’s passport, despite the request to him to provide it), the RRT was entitled to infer that the applicant had visited Sri Lanka.  It must be remembered that the RRT specifically asked the applicant to provide an explanation of why he had returned voluntarily to India from Sri Lanka.  The applicant chose not to respond.  If the RRT misinterpreted the material before it, that came about because the applicant chose not to explain the position and failed to provide his passport.  In any event, even if the RRT drew an incorrect inference from the material before it, that would not constitute a jurisdictional error: Abebe v Commonwealth (1999) 197 CLR 510, at 560, per Gummow and Hayne JJ.

conclusion

43                  The application must be dismissed. 

44                  Since the adjournment was occasioned by the Minister’s need to put on further evidence, I think that the appropriate order is that the applicant pay the Minister’s costs, other than the costs of the second day of the hearing.  Mr McInerney did not suggest otherwise.

Associate:

Dated:              19 December 2003