FEDERAL COURT OF AUSTRALIA

SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1457

MIGRATION – no attendance at Tribunal hearing – inadequacy of information was reason for Tribunal’s decision – inconsistencies between information in the visa application and country information not part of the Tribunal’s decision – ‘information’ in s 424A(1) imports some positive factual material not merely absence of information – no breach of s 424A(1) – Tribunal not obliged to consider reason for non-attendance at hearing – lack of awareness by applicant of Tribunal hearing has no legal relevance – no obligation to reschedule hearing where notification returned unclaimed

Minister for Immigration & Multicultural & Indigenous Affairs v Huynh (2004) 211 ALR 126

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 84 ALD 325

Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2005] FCAFC 73

MZWPK v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 1256

NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184

NAIH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 223

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Miah (2001) 206 CLR 57

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407

WABY v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1091

WAEE V Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630

WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276

SZBCS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD133 OF 2005

BENNETT J

18 OCTOBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal is dismissed.

2.      The appellant pay the first respondent’s costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Background

1                     The appellant is a citizen of Bangladesh who arrived in Australia on 12 July 2002.  He claims to have a well-founded fear of persecution on his return to Bangladesh because of his political involvement with the Awami League.  On 16 September 2002 a delegate of the respondent Minister refused his application for a protection visa.  On 4 October 2002 the Refugee Review Tribunal received an application for review from the appellant.

2                     On May 2, 2003 the Tribunal wrote to the appellant inviting him to attend a hearing to be held on 16 June 2003 and advised him that, if he did not attend, a decision would be made without further notice.  This document was returned to the Tribunal.  A copy of the letter was also sent to the migration agent nominated by the appellant on his review application.  That letter was not returned.  The appellant did not attend the hearing and, on 11 July 2003, the Tribunal handed down its decision affirming the decision of the delegate.

3                     On 5 August 2003 the appellant lodged an application for judicial review in the Federal Magistrates Court and on 18 January 2005 Driver FM dismissed the application.

The chronology of the information provided to the Tribunal

4                     The appellant provided a detailed statement with his application for a protection (class XA) visa.

5                     The application for review to the Tribunal asserted that the delegate misunderstood the claim and that a number of matters were not considered.  The statement also asserted that the delegate had used ‘a number of dated information’ and did not ‘admit’ the current situation in Bangladesh.  No further information was provided.

6                     The Tribunal recorded in its reasons that it had written to the appellant to advise him that it had examined all the information relating to his application but was not prepared to make a favourable decision on that information alone.  The letter invited the appellant to the hearing and advised him that if he did not attend a decision could be made without further notice.  The Tribunal also noted in its reasons that a copy of the letter was sent to his adviser and that ‘No response has been received’.

 The Decision of the Tribunal

7                     The reasons of the Tribunal were short.  The Tribunal found that the appellant had provided insufficient information to satisfy it that his claims were true or his fears well-founded.  The Tribunal gave an example of that insufficiency by reference to the lack of detail and documentary evidence concerning matters in the appellant’s written statement in support of his visa application.  Another example given, was that independent country information did not support the appellant’s claims in his visa application that hundreds of Awami League activists were killed or that leading party members generally are at risk of serious harm today.

8                     The Tribunal observed that, ‘if [the appellant] had attended the hearing it would have been possible to investigate his claims more fully.  However, he failed to do so and on the evidence currently before me I am not satisfied that he has a well-founded fear of persecution in Bangladesh for reasons of political opinion or for any other reason in the Convention’.

The Decision of the Federal Magistrate

9                     The application to the Federal Magistrates Court pleaded five grounds of review, described by Driver FM at [5] as ‘expressed generally and no particulars are provided’.  In addition, the appellant filed written submissions.

His Honour concluded that:

(a)        there had been no breach of s 424A(1) of the Migration Act 1958 (Cth) (at [6]);

(b)        the hearing invitation was sent to the appellant’s authorised recipient as well as to his own address (at [8]);

(c)        the Tribunal met its statutory obligations under s 425 and s 425A (at [10]);

(d)        the Tribunal was entitled pursuant to s 426A to proceed in the absence of the appellant (at [10]) (citing VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407 at [15]);

(e)        in the circumstances, there was no procedural unfairness in the Tribunal proceeding without further inquiry (at [10]); and

(f)         there was no jurisdictional error on the part of the Tribunal and that there had been no procedural unfairness.

Notice of Appeal

10                  There are three grounds pleaded in the notice of appeal:

(a)        The Tribunal did not provide the appellant with an opportunity to comment on the information, which the Tribunal relied upon in making its decision and ‘the Honourable judge also did not consider this’.

(b)        That ‘reasonable steps were not procured by the Tribunal and this issue was not considered by the honourable judge’.

(c)        The appellant will face persecution if he returns to Bangladesh.

11                  Driver FM had considered the matters in the first two grounds in detail but his Honour, justifiably, did not consider the third ground, which sought merits review.  In his written submissions and as confirmed at the hearing, the appellant abandoned ground 3 of the notice of appeal.

12                  At the hearing, the appellant appeared in person assisted by an interpreter.  He filed written submissions, prepared by counsel, at the commencement of the hearing, despite a direction that they be filed five days prior to the hearing.  Ms Wong, who appeared for the respondent, did not object to consideration of those submissions on the basis that she was given an opportunity to provide further written submissions if necessary.  That course was adopted.  Provision was made for the respondent to file written submissions after the hearing and for the appellant to provide any written submissions in reply.

13                  The matters relied upon by the appellant raise four issues:

(i)         Compliance with s 424A(1) of the Act in reliance on country information.

(ii)        Compliance with s 424A(1) of the Act in reliance on information in the statement in support of the visa application.

(iii)       Compliance with s 424A(1) of the Act in reliance on information that the appellant failed to provide to the Tribunal.

(iv)       The Tribunal’s decision to proceed in the absence of the appellant in circumstances where the notification to the appellant of the hearing was returned to the Tribunal.

(i)        reliance on country information

14                  The written submissions did not address the Tribunal’s reference to country information.  There was no breach of s 424A(1) in this regard, as that information comes within s 424A(3)(a).  There was no obligation on the part of the Tribunal to give particulars of that information to the appellant (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004)84 ALD 325).

(ii)       reliance on information in the visa application

15                  “Information” refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24]).  The Tribunal referred to information in the statement accompanying the visa application, which does not come within s 424A(3)(b).  If that information formed part of the reason for the Tribunal's decision, s 424A(1) applies.  Accordingly, by s 424A(1)(b) and s 424A(2), the Tribunal was required to provide particulars of that information to the appellant by prescribed means.  A failure to do so would constitute jurisdictional error (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162).

16                  The reason for the Tribunal’s decision was the inadequacy of the information.  The appellant had been notified in writing of the fact that the information was inadequate.  He was informed that the Tribunal was unable to make a decision in his favour based upon that information.  In my opinion, that constituted sufficient compliance with s 424A(1) with respect to the “information” that the Tribunal considered the material before it to be inadequate.

17                  The next question is whether the inconsistencies between the information in the visa application and the country information constituted information within s 424A(1).  If those inconsistencies formed part of the Tribunal’s reasons, then the question is whether that was “information” or part of the Tribunal’s reasoning process.  VAF is authority for the proposition that it constitutes information, being the information that the Tribunal relies upon those inconsistencies and regards them as significant.

18                  As I read the Tribunal’s decision, it was already the case that, on the information available to it prior to the hearing, the Tribunal was not satisfied that the appellant feared persecution for a Convention reason.  In the absence of further information, it followed that the application for review would result in affirmation of the delegate’s decision to refuse the application.  The Tribunal stated that the information provided was insufficient.  The Tribunal’s reasons were an expansion of its previous inability to reach the requisite satisfaction.  The consideration of the appellant's claims and the comparison with country information did not form part of the Tribunal's decision. 

(iii)      reliance on the absence of information

19                  The Tribunal’s decision was based on a lack or absence of information on which to form the requisite satisfaction.  The appellant submits that the lack of information or the fact that there was insufficient information is “information” within the meaning of s 424A(1), particulars of which the Tribunal was obliged to give the appellant in writing.

20                  The appellant now puts his case as follows.  The Tribunal decided the case, at least in part, not on the basis of information that the appellant gave but on information that he failed to give.  Section 424A(1) applied to that missing information which was part of the reason for affirming the decision under review.  Section 424A(3)(b) did not apply to that missing information because it was not information which the appellant gave but information that he should have given but did not.  Accordingly, it is submitted, the Tribunal was obliged to give the appellant the opportunity to comment on the lack of information and did not do so.

21                  In VAF at [24] Finn and Stone JJ held that “information” in s 424A(1) does not extend to ‘identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps’.

22                  In WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 the Full Court considered the scope of “information” as used in s 424A(1).  At [26] their Honours concluded that information does not encompass a failure to mention a matter to the Tribunal.  Further, an observation on the part of the Tribunal that the appellant did not refer to a particular matter in his evidence ‘constitutes nothing more than an aspect of the [Tribunal’s] reasoning concerning a deficiency in his evidence’.  Conclusions arrived at by the Tribunal in weighing up aspects of the evidence by reference to gaps or defects in that evidence is not “information” (at [27]).

23                  I also agree with Heerey J in MZWPK v Minister for Immigration and Multicultural & Indigenous Affairs [2005] FCA 1256 that the word “information” in s 424A(1) imports at least some positive factual material and does not apply where the Tribunal has simply identified a lack of any information.  The observation that it would have been possible to investigate the appellant’s claims more fully had he attended, does no more than emphasise this insufficiency.  In WABY v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1091 (cited with approval by the Full Court in WAGP and by Kirby J in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Miah (2001) 206 CLR 57 at [194]), Tamberlin J has rejected a contention that the Tribunal is obliged to provide to an applicant, prior to the making of its decision, its reasoning process in reaching a conclusion. 

24                  No breach of s 424A has been demonstrated.

(iv)       the relevance of the return to the Tribunal of the notification of hearing addressed to the appellant

25                  The appellant did not attend the hearing before the Tribunal.  The Tribunal noted that the required statutory steps were taken to notify the appellant.  As set out above, the Tribunal had written to advise him that it had examined all the information relating to his application but was not prepared to make a favourable decision on that information alone.  A copy of this letter was sent to his adviser.  No response was received.  As recorded in the decision of the Federal Magistrate, the appellant informed his Honour that, to his knowledge, the adviser received the invitation and wrote to him about it.  That is not challenged.

26                  The appellant submits that, by s 426A of the Act, the Tribunal is given discretion to delay its decision and to reschedule the hearing.  He contends that, in exercising that discretion, the Tribunal must take into account relevant considerations, in this case that the letter sent by the Tribunal to the appellant had been returned to the Tribunal unclaimed.  It is submitted that this was not taken into account and that this amounted to jurisdictional error.  In particular, the appellant relies upon the statement of the Tribunal in its reasons that ‘if the appellant had attended the hearing, it would have been possible to investigate his claims more thoroughly’ and submits that the Tribunal was obliged to take account of the return of the notification before deciding that it was appropriate to make the decision in the absence of consideration of that relevant consideration.

27                  There is no dispute that the Tribunal complied with the requirements of s 425 and s 425A of the Act.  By s 426A, the Tribunal was entitled to make a decision without taking any further action to allow or enable the appellant to appear before it.

28                  Ms Wong who appears for the Minister submits that, as the Tribunal is not obliged to satisfy itself that the appellant received the notification or that his nominated agent had informed him of the hearing details, it follows that the return to the Tribunal of the notification to the appellant is not a relevant consideration.  In any event, she submits, it is not clear that the Tribunal failed to consider that the notification was returned.

29                  In its decision, the Tribunal said that no response had been received.  Strictly, this was not the case, as the letter addressed to the appellant had been returned.  Ms Wong submits that the Tribunal can be said to have taken account of the returned letter.  I do not accept that.

30                  However, in NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184, the Full Court considered the failure on the part of a migration agent to notify an appellant of the Tribunal hearing and concluded at [16] that ‘the asserted fact that the applicant was unaware of the Tribunal's hearing was of no legal relevance’.  In VNAA at [15-16] Sundberg and Hely JJ said that the Tribunal was not required in each case to be affirmatively satisfied that the invitation under s 425 had actually come to the notice of the applicant.  Further, their Honours observed that the Tribunal is authorised to proceed to decide the review in the applicant’s absence notwithstanding that the applicant’s absence involved no fault on his or her part.  VNAA was followed in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF [2005] FCAFC 73.

31                  If the Tribunal has complied with its statutory obligations and is entitled to proceed with the hearing in the absence of the applicant (VNAA; VSAF), is the Tribunal obliged to consider the reason for the non-attendance?  In WAEE V Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [47] the Court found that it was unnecessary for the Tribunal specifically to advert to the return of the notification to the appellant as it was subsumed in the consideration that the Tribunal gave to the fact that the appellant had not appeared.

32                  It is the case that the Tribunal has discretion to defer the hearing but it is only if the Tribunal is obliged to do so that there is jurisdictional error.  ‘The factors which the decision-maker is bound to take into account are determined by the construction of the statute conferring the discretion. If they are not stated, they are to be determined by implication from the subject-matter, scope and purpose of the Act’ (citing Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40; in Minister for Immigration & Multicultural & Indigenous Affairs v Huynh (2004) 211 ALR 126 at [71] per Kiefel and Bennett JJ).  As was found in NADK and is apparent from the statutory scheme, the fact that the appellant was unaware of the hearing and that the Tribunal may have had notice of this, was of no legal relevance.  The Tribunal was not required to take into account the fact that the invitation to hearing sent to the appellant’s home address had been “returned to sender”.

Conclusion

33                  The Tribunal considered the material provided by the appellant.  It also considered country information that came within the description of s 424A(3)(a) and thus was not information of which particulars were required by s 424A(1) to be given to the appellant.  Here there was insufficient information to enable the Tribunal to reach a level of satisfaction as to Australia’s protection obligations to the appellant.  The lack of information does not amount to “information” for the purposes of s 424A(1) (VAF).

34                  There has been no failure to comply with s 424A.  The appellant has not established jurisdictional error on the part of the Tribunal or error by the Federal Magistrate.

35                  The appeal should be dismissed with costs.

Associate:

Dated:              18 October 2005

The Appellant appeared in person assisted by an interpreter.