FEDERAL COURT OF AUSTRALIA

SZBZO v Minister for Immigration, Multicultural and Indigenous Affairs
[2006] FCA 494

MIGRATION – invitation by Refugee Review Tribunal to attend hearing – hearing rescheduled at request of applicant – notice requirements for rescheduled hearing –procedural fairness – ambit of s422B 

Migration Act 1958 (Cth) – ss 422B and 425A

Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)

Migration Regulations 1994 (Cth) - Reg 4.35D

Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359 referred to

Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 referred to

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 referred to

Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 170 referred to

NALQ v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 121 referred to

NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 356 referred to

NBBU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 767 referred to

Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57 referred to

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

SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 596 cited

SZBAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 790 referred to

SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1493 cited

SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238

SZDQO v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 144 FCR 251 discussed

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2

SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195

WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR624referred to

Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 221 referred to

VXDC v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 146 FCR 562 referred to

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

NSD 2408 OF 2005

4 MAY 2006

JACOBSON J

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal is dismissed with 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

Introduction

1                     This is an appeal from a decision of Federal Magistrate Nicholls, given on 8 November 2005, dismissing an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 4 November 2003.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2                     The only issue which arises is whether the notice requirements of s 425A of the Migration Act 1958 (Cth) (“the Act”) apply to notice of a rescheduled hearing when the hearing is rescheduled at the request of an applicant.

Background

3                     The appellant is a citizen of India.  He claims to be a Hindu from Tamil Nadu who supported Shiv Sena as a teenager.  He claims that in 1994, he and some relatives experienced problems with members of the Muslim Community and that he received death threats.  The appellant left India and worked in Singapore from March 1995 to April 2000.

4                     The appellant claims that during that period, his cousin was killed in Tamil Nadu and his father advised him not to return to India. When the appellant did return to India, he claims that the problems persisted, and unable to return to Singapore, the appellant went to Malaysia for three months, as permitted. 

5                     On return to India, the appellant lived in Mumbai.  He claims that in Mumbai “those people” found where he lived and attacked him, breaking his leg.  The appellant claims he reported the assault to police, but under pressure from the Muslim community, the police not only refused to investigate the complaint, but brought “false cases” against him and harassed his family.  The appellant’s father was falsely charged and tortured solely due to his relationship with the appellant.  The appellant claims that he and his family were attacked by persons because of his previous support for Shiv Sena.

Refugee Review Tribunal

6                     By letter of 12 August 2003, the Tribunal invited the appellant to attend a hearing to take place on 23 September 2003.  On 10 September 2003, the appellant advised the Tribunal by facsimile that he wished to attend the hearing, but on 22 September 2003 the appellant faxed to the Tribunal a medical certificate which stated that he was unfit to attend the hearing during the period 22-23 September 2003.

7                     By letter dated 23 September 2003, the Tribunal advised the appellant in writing that, at his request, the hearing would be rescheduled, and would take place on 2 October 2003. However, the appellant did not attend this rescheduled hearing, nor contact the Tribunal to explain his absence.  In the circumstances, the Tribunal made its decision in the review without taking further action, pursuant to s 426A of the Act.

8                     The Tribunal found the appellant’s claims to be mere assertions.  The Tribunal observed that the appellant’s absence from Tamil Nadu for six years suggested it was implausible that he was traced by people from his past who wished to harm him; the Tribunal observed that the appellant’s inability to identify the assailants indicated it was much more likely that he was a victim of an opportunistic attack. 

9                     The Tribunal noted that the appellant had offered no further details about the assaults or threats, nor taken the opportunities offered by the Tribunal to speak to his claims or offer any material in support.  The Tribunal was not satisfied that the appellant has a well founded fear of persecution.

10                  The Tribunal made its decision on 10 October 2003.  It notified the appellant by letter dated 13 October 2003 that the decision would be handed down on 4 November 2003.  The decision was duly handed down on that date.

Federal Magistrates Court

11                  The first ground in the amended application before FM Nicholls was that the Tribunal breached the notice requirements in s 425A of the Act.

12                  The letter sent on 23 September 2003 was deemed to have been received on 2 October 2003 which was the date of the proposed rescheduled hearing.  The period of notice which was given was less than the fourteen day prescribed period stated in s 425A(3) and Reg 4.35D of the Migration Regulations 1994 (Cth) (“the Regulations”).  The issue which arose was whether the Tribunal was bound to give fourteen days’ notice, in accordance with those provisions, where the hearing was rescheduled at the appellant’s request.

13                  Nicholls FM referred to the decision of Conti J in SZDQO v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 144 FCR 251 (“SZDQO”) which addressed this issue.  The learned Federal Magistrate followed SZDQO as authority for the proposition that where the Tribunal reschedules a hearing at the request of an appellant, s 425A(3) does not apply in relation to the notice of the rescheduled hearing. 

14                  The Federal Magistrate concluded that the appellant was given a reasonable period within the requirements of the law, notwithstanding that it was not the full 14 days required under s 425A.  He went on to observe that the Tribunal did not make its decision for some eight days after the rescheduled hearing date, and did not hand down its decision for a month after the rescheduled hearing date. The Magistrate noted that the appellant did nothing to notify the Tribunal of his reason for a failure to attend the rescheduled hearing date, nor to seek any further hearing date.  In the circumstances, the Magistrate did not accept the applicant’s complaint and found that the ground was not made out. 

15                  FM Nicholls observed at [15] that even if he had found jurisdictional error, he would have declined to exercise the discretion to grant relief, for two reasons.  First, the appellant did not contend that he did not receive the letter notifying him of the rescheduled hearing date and he did not approach the Tribunal to explain his failure to attend.  Secondly, there was no evidence put before His Honour to indicate that the appellant wanted to attend the rescheduled hearing, or that the appellant had further evidentiary material he would have wanted to put before the Tribunal.

16                  There were six further grounds of review.  They were bias, failure to properly conduct a hearing, failure to take into account relevant considerations, failure to apply the correct test, illogicality, and failure to give reasons.

17                  The learned Federal Magistrate considered each of these grounds and dismissed them.

18                  As the appellant was unrepresented, the Federal Magistrate also considered whether any issue arose in relation to s 424A of the Act, in light of the High Court’s decision in SAAP v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 215 ALR 162.  He concluded that there had been no breach of s 424A.

The Relevant Statutory Provisions

19                  The relevant sections of the Act and the Regulations are as follows:-

“Section 425 Tribunal must invite applicant to appear

(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)        the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or

(b)        the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(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 425A Notice of invitation to appear

(1)       If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

(2)       The notice must be given to the applicant:

(a)       except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)       if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(3)       The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

(4)               The notice must contain a statement of the effect of section 426A.”

20                  Regulation 4.35D, entitled ‘Prescribed periods - notice to appear before Tribunal ([Migration] Act, s 425A)’, provides as follows:

“For subsection 425A (3) of the Act, the prescribed period:

(a)       if the applicant is a detainee — starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 7 days after the day on which the notice is received; or

(b)       in any other case — starts when the applicant receives notice of the invitation to appear before the Tribunal and ends at the end of 14 days after the day on which the notice is received.

Note 1    If the Tribunal gives a person a document by a method specified in section 441A of the Act, the person is taken to have received the document at the time specified in section 441C of the Act in respect of the method.

Note 2    A document given to a person in immigration detention is given in the manner specified in regulation 5.02.”

21                  Section 426A states:

“Failure of applicant to appear before Tribunal

(1)  If the applicant:

(a)  is invited under section 425 to appear before the Tribunal; and

(b)  does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear;

the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

(2)  This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.”

Notice of Rescheduled Hearing Date

22                  In SZDQO, Conti J held at [29] that where the Tribunal reschedules a hearing at the request of an applicant, the 14 day notice requirement stipulated in s 425A(3) and Reg 4.35D does not apply to the notice of the rescheduled hearing.  His Honour was of the view that, subject to the operation of s 422B of the Act, the requirement of notice of the rescheduled date would be governed by the general law of natural justice.

23                  Support for the view that a distinction is to be drawn between the situation where the Tribunal itself reschedules the hearing date and when it does so at the applicant’s request is found in the decisions of Sackville J in NBBU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 767 and Barnes FM in SZBAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 790 (“SZBAZ”).  Conti J referred to both of these authorities.

24                  The rationale for the distinction is that where the Tribunal itself reschedules the hearing it may be thought to have issued a fresh invitation.  However, where the applicant requests a postponement, s 425A does not apply because the section is limited to the situation where an applicant “is invited to appear before the Tribunal”; see SZBAZ at [28] – [29], quoted by Conti J at [21].

25                  The conclusion reached by Conti J that s 425A(3) does not apply where an applicant requests a rescheduling is supported by the language of s 425A.  It is also consistent with the detailed statutory provisions of Division 4 of Part 7 of the Act, as was observed by Barnes FM in SZBAZ.

26                  It is to be noted that s 426A appears to draw a distinction between an invitation to appear before the Tribunal as required by s 425(1) and the power of the Tribunal to reschedule the hearing; see s 426A(2).  This might be thought to provide further support for the view that s 425A is limited to the initial invitation but it does not explain the distinction between a rescheduling by the Tribunal itself rather than at the request of an applicant.

27                  The difficulty which seems to me to arise on the approach adopted by Conti J is whether the common law rules of nature justice govern the requirement of notice of a hearing which is rescheduled at the applicant’s request.  As His Honour correctly observed, this must be subject to the provisions of s 422B which provides that Division 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

28                  Section 422B applies to applications to the Tribunal for review of a decision filed after 4 July 2002; see SZATG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 596 at [31]; see also SZBDF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1493 (“SZBDF”) at [11].  It therefore applies to the present case.

29                  As Branson J pointed out in SZBDF at [12], there is a division of opinion within the Court as to the ambit of s 422B(1).  One view is that the phrase “in relation to the matters it deals with” imports a limitation upon the extent to which Div 4 is to be read as a code and doe not, in effect, completely exclude common law rules of natural justice; see WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR624 (WAJR”) at [47] – [59] and Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 170 (“Moradian”) at [35] – [37].

30                  The other view is that s422B applies to a larger subject matter than the exact text of the requirements stated in Div 4; see NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 356 (“NAQF”) at [50] – [87]and Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 221 (“Wu”) at [21] – [23]; see also VXDC v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 146 FCR 562 (“VXDC”) at [30] – [31] per Heerey J.

31                  Branson J preferred the approach adopted by Lindgren and Hely JJ in NAQF and Wu respectively, to that of French and Gray JJ in WAJR and Moradian; see SZBDF at [17].  Bennett J found it unnecessary to decide the question in Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 at [46] – [49].

32                  In VXDC, Heerey J was of the view that an examination of the explanatory statement of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) and the second reading speech made it plain that the intention of the 2002 amendment was to reverse the effect of the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex Parte Miah (2001) 206 CLR 57; it was also to provide a comprehensive code for procedural fairness which excluded the common law natural justice hearing rule.

33                  The question of which view is correct is presently under consideration by a Full Court.  I will proceed on the basis that the question is still open.  Of course, if the view expressed by Heerey J is correct, no question of breach of procedural fairness arises, the matter being governed by the code contained in Div 4, which does not contain any notice requirement in the circumstances of the present case.

34                  In the present case notice of the rescheduled hearing was sent on 23 September 2003 and it was deemed to have been received on the date of the reschedule hearing; see s 441C(4).  But it  does not follow that the letter was not received before that date.

35                  The learned Federal Magistrate pointed out that the appellant did not contend that he did not receive the letter.  It was sent by registered post to the appellant’s Migration agent and to the appellant at his home address.  His home address was recorded on the response to hearing invitation (for the original hearing date) which he signed and forwarded to the Tribunal.

36                  Moreover, the Tribunal’s record sheet states that on 1 October 2003, the day before the scheduled hearing, a Tribunal officer rang the appellant’s agent twice only to be informed that the agent could not contact the appellant because his mobile phone was switched off.  The officer told the agent that if the appellant appeared the Tribunal would schedule another hearing time.

37                  In those circumstances it is difficult to see what more the Tribunal could have done to notify the appellant of the hearing.

38                  What seems to me to be important is that the appellant did not adduce evidence that he was unaware of the rescheduled date.  The tenor of the Federal Magistrate’s findings is that he was aware of it.

39                  Furthermore, as the learned Federal Magistrate found, there was no evidence put before him that the appellant would have wanted to attend the rescheduled hearing or that he had evidentiary material he wanted to put before it.

40                  I am therefore satisfied that if there was an obligation of procedural fairness to give the appellant reasonable notice of the rescheduled date, there was no breach of the rule.

41                  An alternative approach to the determination of the content of the Tribunal’s obligation to give notice of the rescheduled hearing was suggested by counsel for the Minister.  He submitted that its content would be governed by the statutory obligation of the Tribunal under s 425 of the Act to provide a “real and meaningful” invitation to attend the hearing; see Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 (“SCAR”) at [37].

42                  However, there are two difficulties with this approach.  First, on the construction of s 425A adopted by Conti J in SZDQO, s 425 would bear the same limitation as s 425A.  It would have to be confined to an invitation to attend a hearing and would not extend to a hearing rescheduled at the request of an applicant.

43                  In any event, it may be that the statement of principle to which I have referred in SCAR is not correct.  A Full Court has pointed out that the statement may not be correct because it is based upon a misconstruction of a decision of Hely J in Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359; see NALQ v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 121 at [34].

44                  In summary, I respectfully agree with the approach to construction of s 425A adopted by Conti J in SZDQO which, for the reasons given above, disposes of the only substantial point in the appeal.  At very least, His Honour’s decision is not plainly wrong and I would follow it, especially as His Honour was exercising the appellate jurisdiction of the Court.

Other grounds of appeal

45                  The other grounds of appeal largely refer to the grounds of review in which the appellant failed before the Federal Magistrate.  There is no substance in them and they must be dismissed, essentially for the reasons given by the learned Magistrate.  There was no apparent error in His Honour’s approach.

46                  One of the grounds of appeal alleges failure to consider the availability of effective state protection.  This ground was not advanced below.  I will not give leave to raise it on appeal.

Section 424A

47                  Although not raised in the Notice of Appeal, the appellant was not represented and I will consider the question of whether there was jurisdictional error by reason of a contravention of s 424A.

48                  This issue can be disposed of shortly.  The remarks of Allsop J in SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29] and SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 (“SZCIA”) at [12] are equally applicable in the present case.  The reason for the decision of the Tribunal was “an evaluative conclusion founded on the perceived inadequacy of the information in the sense of an absence of detail and extrinsic explanation”.

49                  As His Honour said in SZCIA at [14] this view of the operation of s 424A is in conformity with the approach of the Full Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2.

Conclusion

50                  The appeal must be dismissed with costs.

Associate:

Dated:              4 May 2006