FEDERAL COURT OF AUSTRALIA

SZGMB v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCA 437

MIGRATION – application for leave to appeal - review of protection visa decision –time when applicant received notification of Refugee Review Tribunal’s decision – consideration of evidentiary requirements for notification – where unreasonable delay in responding to decision of Refugee Review Tribunal - application dismissed

Evidence Act 1995 (Cth), s163

Migration Act 1958 (Cth), s 430, s 66

Migration Regulations 1994 (Cth), Regs 4.40, 4.41, 5.03

Bienstein v Bienstein (2003) 195 ALR 225 followed

Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 followed

Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308 considered

Minister for Immigration v Singh (2000) 98 FCR 77 considered

NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 cited

Parisienne Basket Shoes Pty Limited v Whyte (1938) 59 CLR 369 cited

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

SZGMB v Minister for Immigration [2006] FMCA 175 affirmed

SZGMB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 197 OF 2006

RARES J

21 APRIL 2006

SYDNEY

THE COURT ORDERS THAT:

1. The application is refused.
2. The applicant pay the first respondent’s costs of the application.

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 for leave to appeal from a decision of the Federal Magistrates Court given on 1 February 2006 (SZGMB v Minister for Immigration [2006] FMCA 175).

Background

2                     The applicant lodged an application for a protection visa on 13 November 1997.  A delegate of the respondent refused to grant the protection visa on 30 April 1998.  The applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of that decision on 10 May 1998.  On 11 March 1999 the Tribunal affirmed the decision not to grant the applicant a protection visa.

3                     The evidence before the Federal Magistrates Court was that on 11 March 1999 the Tribunal sent a letter to the applicant at his address notifying him of the Tribunal’s decision to affirm the decision of the delegate which enclosed a copy of the Tribunal’s decisions and reasons.  The letter informed the applicant that he had 28 days within which to appeal to the Federal Court.  It noted that if the letter were posted he would be taken to have received it seven days after the date of the letter.  (Presumably this was in reliance upon reg 5.03 of the Migration Regulations which so provided.  However, in Minister for Immigration v Singh (2000) 98 FCR 77 at 91 [51] O’Connor and Mansfield JJ held that regulation to be invalid to the extent it sought to impose such time constraints.)

4                     Before the trial judge, ([2006] FMCA 175 at [19]) and also before me, the applicant asserted, without giving evidence, that he had never received any notification of the Tribunal’s decision until after he had been detained in 2005 by officers of the respondent’s department. 

5                     It does not appear that his Honour invited the applicant to give evidence to support his assertion of non receipt of the letter of 11 March 1999.  Instead, his Honour proceeded to consider the matter but did not determine whether the applicant had been notified in accordance with the Migration Act 1958 (Cth) under regulations in force on 11 March 1999.  Rather, his Honour said that even if the Tribunal had made a jurisdictional error ‘the lengthy and poorly explained delay would be sufficient to persuade the court to exercise its discretion not to grant relief by way of a constitutional writ’ ([2006] FMCA 175 at [24]).

6                     If there were evidence that the applicant had not in fact received the letter of 11 March 1999, then he had a reasonable explanation for his delay.

7                     When the matter came before me for hearing, I inquired of Ms Radich, who appeared for the respondent, as to what the relevant law was regarding notification by the Tribunal of its decision to an applicant for review on 11 March 1999.  Ms Radich was not in a position at that time to assist with that material and asked for time to put in a written submission.  I granted her leave to do so and gave directions for the applicant to provide written submissions in response.  On 20 March 2006, written submissions were received from counsel for the respondent, Ms McNaughton.  On 27 March 2006 I received written submissions from the applicant.

Principles for leave to appeal

8                     The question of whether or not leave to appeal should be given is, of course, governed by well established principles, namely that an applicant for leave must establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and also must show that substantial injustice would result from a refusal of leave to appeal (Bienstein v Bienstein (2003) 195 ALR 225 at 231, [29] per McHugh, Kirby and Callinan JJ).

Issues raised by the application

9                     Before proceeding to consider the issue of whether the application was filed in time, it is also necessary to consider the other bases upon which, if an appeal were initiated, the applicant would seek to argue that the trial judge erred in failing to set aside the decision of the Tribunal.  The draft notice of appeal submitted by the applicant with his affidavit on 7 February 2006 asserts that:

(a)        the Tribunal failed, in effect, properly to consider his case;  and

(b)        the Tribunal refused to accept that the applicant had a well founded fear of persecution.

10                  His Honour recorded in his judgment that the applicant was a citizen of China and he had arrived in Australia on 29 October 1997.  The applicant had given evidence before the Tribunal on 25 February 1999 as to his assertions of persecution.  In essence, the applicant claimed to have been a practicing Catholic for over twenty years and that he feared persecution were he to return to China.  He claimed to have been part of an underground church in his town in 1987. He also claimed in his written application to the Tribunal to have studied the Bible. The Tribunal did not accept his claims for reasons which do not reveal any jurisdictional or other error.

11                  The Tribunal, in its detailed reasons, set out an exchange with the applicant in which it questioned him about fundamental and well known aspects of Catholicism and the Christian faith.  For example, the Tribunal recorded the following questions and answers in its reasons:

‘Tribunal:        In the Catholic faith what books in the Bible tell us about Jesus?

Applicant:       I can’t remember

Tribunal:         What are the Ten Commandments?

Applicant:       I don’t know.

Tribunal:         Can you name any of the Ten Commandments?

Applicant:       Can’t remember, is it when you cannot eat meat?’

12                  The Tribunal found that it was not satisfied with the applicant’s credibility and that there were a number of inconsistencies in his evidence about various matters including his inability to answer basic questions about the Bible, the Catholic Church, Catholic teaching and Catholic practices.  It gave the applicant until 8 March 1999 to address in writing those inconsistencies that had been referred to during the hearing.  The Tribunal found that at the hearing the applicant was unable to give any explanation for a number of the inconsistencies and his explanations for the rest were not reasonable.  It found ‘in his written submission to the Tribunal the applicant has not addressed these inconsistencies.’

13                  The Tribunal was not satisfied that the applicant had been involved in religious activities as he had claimed. It was also not satisfied as to the credibility of his claim to have been arrested because of activities involving his Catholic faith in which he claimed to have been involved.  The Tribunal also made other credibility based findings concluding, as noted by the trial judge ([2006] FMCA 175 at [7]):

‘At the Tribunal hearing, the overall implausibility and lack of credibility of the applicant’s claims was pointed out to him.  The applicant was given the opportunity to clarify the contradictions regarding the various claims that he has made, but was unable to do so in any meaningful way either at his hearing or in the subsequent written submission.  Given the significant adverse findings on credibility in relation to the applicant, the Tribunal cannot be satisfied that the applicant has a real chance of being persecuted for a convention reason in China in the foreseeable future, and is therefore not satisfied that the applicant’s fear of persecution for a convention reason is well founded.’

14                  The applicant told his Honour and also me that he suffers from motion sickness induced by travelling.  He claimed to have been affected by that in the hearing before me even though he had been present in court for about one and a half hours before his matter was called on for hearing.  He said that the motion sickness affected his ability to think and to respond.  He said that a similar affliction had occurred when he gave his evidence to the Tribunal, and that had affected the fairness of the process both before the Tribunal, the Federal Magistrates Court, and presumably before me.  I put to the applicant that he would always be affected by this at any hearing to which he had been brought, such as to the Court,  and he appeared to agree with that proposition.  In his written submissions, the applicant said that this condition: 

 ‘…is now much better than before.  So that there is no problem of carsick[ness] for attending [the] Magistrate Court hearing this time.’

15                  I observed the applicant to respond intelligently to questions which I put and I did not observe him to have any apparent difficulty in doing so during the hearing.  He was able to read from and refer to notes which he had prepared in his own language. Moreover, for example, when I asked him about whether he had received notification from the Tribunal by reference to the letter of 11 March 1999 contained in what had been the Green Book before his Honour, he was able immediately to pull the Green Book out of his bag and look up the relevant document, without any apparent problem at all.

16                  And, his Honour noted that the applicant had at no time informed the Tribunal member that he had had any difficulty relating to his car or motion sickness ([2006] FMCA 175 at [18]).  In his written submission the applicant said that he had not understood the Tribunal’s procedures and that the Tribunal had not mentioned that if he were very sick another hearing date could be arranged.  This was, he submitted, why he did not tell the Tribunal that he was sick and, so he argued, this is why the Tribunal made an error.

17                  On the applicant’s argument, he did not tell the Tribunal of the sickness he claims to have been suffering.  That being so, there is no basis for an argument that the Tribunal committed any jurisdictional error in failing to deal with the carsickness claim.  I am satisfied that this ground does not raise any sufficient doubt as to the correctness of the decision of the trial judge on it.  It was open to his Honour to reject it, inter alia, because there was no evidence to support it.

18                  Moreover, the applicant’s complaints as to his motion sickness and any effect that may have had upon him at the hearing before the Tribunal have not been verified.  The assertions which the applicant made about this matter both before his Honour and myself, were made as a submission not on oath.  They were unsupported by any medical evidence.  There is no suggestion in the reasons of the Tribunal, the trial judge or in the observations which I made of the applicant in court, which would enable a conclusion to be drawn that reliance upon this ground in an appeal would enjoy any prospect of success.

Other complaints

19                  The applicant also complained that the assistance provided to him from a legal practitioner, apparently appointed under the Refugee Tribunal Legal Advice Scheme, was inadequate.  In the judgment below, his Honour makes reference to the fact that there had been some tardiness on the part of counsel who had been appointed to give advice the applicant ([2006] FMCA 175 at [13]-[15]).  As his Honour there noted, he had been informed by the counsel that had he provided advice to the applicant which was required under the scheme and that he, counsel, would not be appearing at the hearing.

20                  The applicant complained that the relevant counsel had not obtained the tapes of the hearing before the Tribunal or had not listened to the tapes and that his case had been decided by his Honour without the applicant having been able properly to prepare it.  Again, those complaints appear to be ones which would have no prospects of success.  First, they are, again, new assertions which are not the subject of evidence on oath.  In his written submission the applicant acknowledged that he had received legal advice, albeit late. His Honour made the finding that he was satisfied that the applicant had received the advice to which he was entitled under the scheme ([2006] FMCA 175 at [15]).  Secondly, when I pressed the applicant to identify what was wrong with his Honour’s decision, he said he was not able to identify any legal error because, understandably, he was not a lawyer. He said that he wanted a lawyer who would not charge and who could help him.   Again, none of these complaints by the applicant raise any matter which would enjoy any prospect of success were leave to appeal granted.

Legislative Scheme for Notification of the Tribunal’s Decision

21                  As at 11 March 1999, s 430 of the Migration Act 1958 (Cth) (‘the Act’) provided:

‘Refugee Review Tribunal to record its decisions etc. and to notify parties

(1)       Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: 

(a)        sets out the decision of the Tribunal on the review; and

(b)        sets out the reasons for the decision; and

(c)        sets out the findings on any material questions of fact; and

(d)       refers to the evidence or any other material on which the findings of fact were based.

(2)       The Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made.

(3)       Where the Tribunal has prepared the written statement, the Tribunal must:

(a)       return to the Secretary any document that the Secretary has provided in relation to the review; and

(b)       give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.’

Subsequently s 430 was amended by the Migration Legislation Amendment Act (No 1) 1998 (Cth); Schedule 3, Items 8 and 9.  Item 8 repealed the former s 430(2) and Item 9 inserted ss 430A-430D.  All these amendments commenced on 1 June 1999.

22                  In the Migration Regulations 1994 (consolidated as in force on 10 December 1998; n.b: regulations 4.38-4.41 or 5.03 were not relevantly amended until 1 July 1999) (‘the Regulations’), reg 4.40(1) provided that a notice or statement to be given to an applicant in relation to a decision of the Tribunal was to be taken to be duly given if it was posted to his or her last address for service which he or she provided in connection with the application.  Regulation 4.41 provided that if a document was to be given to or served on a person for the purposes of a review by the Tribunal and no other provision in regulations allowed for service, then the document could be given or served on the address for service provided by the applicant by posting it to him or her at his or her last known place of residence.

23                  Regulation 5.03 made provision for deeming a document to be served 7 days after its date. It also permitted the document to be sent on the seventh day so that, in fact, it could not have been received until after the seventh day.  A Full Court of this Court held that Regulation 5.03 was ultra vires the regulation making power (Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77).

24                  Subsequently, in Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308 at 319 [39] Gray J held that s 29 of the Acts Interpretation Act 1901 (Cth) and s 160 of the Evidence Act 1995 provided that the calculation of any relevant period by reference to which a document may be presumed to have been served under either of those enactments was to be addressed by reference to the date of posting, and not the date borne by the document.  Thus s 29 of the Acts Interpretation Act 1901 provides that there is a presumption, unless the contrary is proved, that a letter addressed to a person for which the postage was prepaid and which is posted, is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of the post.  Moreover, s 29(2) preserves the operation of s 160 of the Evidence Act 1995 (Cth).  The latter provision creates a presumption, unless evidence sufficient to raise a doubt about the presumption is adduced, that a postal article, sent by pre-paid post addressed to a person at a specified address in Australia, was received at that address on the fourth working day after it having been posted.

25                  Gray J did not refer to, nor was I referred to, s 163 of the Evidence Act 1995 which makes special provision for the proof of letters sent by Commonwealth agencies. It provided as to a letter from a Commonwealth agency (until the definition of ‘Commonwealthagency’ was removed from the section and a substituted definition placed in the Dictionary of the Act by the Law and Justice Legislation Amendment Act 1999 (Cth) as from 13 October 1999 when it received the royal assent (see ss 2(1)) as follows:

‘(1)   A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.

(2)               In this section:

 "business day" means a day that is not:

(a)       a Saturday or a Sunday; or

(b)       a public holiday or bank holiday in the place in which the letter was prepared;

"Commonwealth agency" means:

(a)       a Department within the meaning of the Public Service Act 1922;  or

(b)       a House of the Parliament; or

(c)        a person or body holding office, or exercising power, under or because of the Constitution or a law of the Commonwealth; or

 (d)      a body or organisation, whether incorporated or unincorporated,

            established for a public purpose:

(i)         by or under a law of the Commonwealth or of a Territory (other than the Australian Capital Territory, the Northern Territory or Norfolk Island);  or

            (ii)        by the Governor-General;  or

(ii)                 by a Minister;

"letter" means any form of written communication that is directed to a particular person or address, and includes:

(a)       any standard postal article within the meaning of the Australian Postal Corporation Act 1989;  and

(b)       any envelope, packet, parcel, container or wrapper containing such a communication;  and

(c)        any unenclosed written communication that is directed to a particular person or address.

Note 1: The NSW Act has no equivalent provision for section 163.

Note 2: Section 5 extends the operation of this section to proceedings in all Australian courts.’

26                  The Tribunal is a Commonwealth agency, being a body exercising power under a law of the Commonwealth, namely, the Act.  The effect of s 163 is that the letter is presumed to have been received on the fifth business day after the date it bears (which, in practical terms, is likely to be seven days after the date).  As Gray J pointed out (134 FCR 308 at 323-324 [54]) the letter of notification in that case did not comply with s 66(2)(d)(ii) of the Act because it failed to state accurately the time within which the application for review might be made.  Accordingly, the Tribunal’s obligation to notify the applicant, in that case, of the decision not to grant the substantive visa he sought, which was imposed by s 66, had never been discharged.

27                  As s 66(2)(d) of the Act says, if an applicant has a right to have a decision reviewed under, relevantly, Pt 7, the letter or document of notification must:

‘… state:

(ii)       the time in which the application for review may be made’

28                  By s 66(4) a failure to give notification of a decision does not affect the validity of the decision.

Consideration of Delay

29                  In the letter notifying the applicant of the making of the decision dated 11 March 1999 it is stated:

‘If this letter was posted, you are taken to have received it seven (7) days after the date of the letter.’  (Easter Sunday fell on 4 April 1999, accordingly one can presume that the fifth working day after the date of the letter was 18 March 1999)

30                  That statement appears to have relied on the invalid reg 5.03.  It may be that, coincidentally, the statement is accurate by force of s 163 of the Evidence Act 1995 (Cth).  The Minister has foreshadowed that she would be applying to tender fresh evidence of the postal records of the Tribunal seeking to prove that the letter of notification had been, in fact, posted to the applicant on 11 March 1999.

31                  The Minister’s submission points out that the applicant wrote on the first page of his application under both the Judiciary Act 1903 (Cth) and the Act, filed in the Federal Magistrates Court:

‘The applicant was notified of the decision that is the subject of this application on 10 March 1999.’

However, that assertion cannot be correct since the decision was only handed down the next day, Wednesday 11 March 1999.

32                  The fact that the applicant put the date of receipt of the Tribunal’s decision in March 1999 in his application to the Federal Magistrates Court, and has given no evidence or other explanation which is capable of being tested for the delay, until he filed his application in Federal Magistrates Court on 6 June 2005, means that there has been a delay of over six years between the time at which the decision was handed down and when the applicant first came to challenge it. 

33                  In his written submission the applicant asserted that the letter of 11 March 1999 ‘… did not tell me clearly how long the time limit is, such as how many days, how many months or how many years …’.  The letter of 11 March 1999 is clear and in my opinion this submission has no prospects of success.

34                  In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at 212 [211] (Kirby J agreeing at 203 [174] and see also McHugh J to the same effect at 185 [84] )Hayne J in considering whether prerogative relief could be refused by the Court in cases of jurisdictional error, said:

‘There is no basis, in this case, on which the undoubted discretion to refuse the relief sought could be exercised against its grant. There has been no suggestion of delay, waiver, acquiescence or other conduct of the appellants said to stand in their way.’

35                  Here, an unexplained delay of over six years between the handing down of the decision and the commencement of the proceedings seeking judicial review appears to me to dictate that the interests of justice would not be served by a grant of leave to appeal.  The applicant did not put evidence before his Honour or this Court, to support the fact that he had not been notified of the decision of the Tribunal, contrary to the statement in his application to the Court below, until he learnt of it in 2005.  That explanation, had it been made on oath could have been tested and his Honour could have made findings about it.

36                  Although there may be some arguable issue, based on what Gray J said in Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308, I am satisfied that no sufficient doubt has been raised to warrant a grant of leave from his Honour’s finding set out at [5] above that the lengthy and poorly explained delay justified his Honour’s exercise of discretion in refusing to grant prerogative relief.  I am of opinion that there has been no substantial injustice shown.

Conclusion

37                  Ordinarily, if no additional evidence is admitted under section 27 of the Federal Court of Australia Act 1976 (Cth) or Federal Court Rules Order 52 r 36 an appeal and there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was an error on the part of the primary decision maker.  As Gleeson CJ, Gaudron and Hayne JJ noted in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-204 [14]:

‘That is because statutory provisions, conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error (see CDJ v VAJ (1998) 197 CLR 172 at 201-202 [111] per McHugh, Gummow and Callinan JJ).’

38                  Making all allowances that can be made for a person who has no legal training and does not speak English, the draft notice of appeal does not indicate any error of his Honour in refusing to grant the applicant the relief sought in the Federal Magistrates Court.  Rather, the draft notice of appeal concentrates on what are said to be errors as to the merits of the applicant’s claim for a protection visa which concentrate on findings of fact, including the findings as to the applicant’s credibility.  There is no jurisdictional error made by a decision maker in the position of the Tribunal simply because it found facts in a way which may be erroneous.  Its jurisdiction was to find the facts and for that purpose it could do so rightly or wrongly:  Parisienne Basket Shoes Pty Limited v Whyte (1938) 59 CLR 369 at 390-394 per Dixon J, with whom Evatt and McTiernan JJ agreed; NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 at [37].

39                  The applicant has at no point identified any basis for claiming that the Tribunal fell into error either in his application filed in the Federal Magistrates Court or in his submissions made to his Honour below, or in the submissions which he made to me.

40                  Accordingly, there is no sufficient reason to doubt that the Tribunal’s decision would not be set aside were leave to appeal granted.

41                  The application should be refused with costs.

Associate:

Dated:              21 April 2006