FEDERAL COURT OF AUSTRALIA

SZGVJ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 535

SZGVJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 246 of 2006

RYAN J

4 MAY 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs, to be taxed in default of agreement.

.

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

1                     This is an appeal against orders made by a Federal Magistrate on 3 February 2006, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), handed down on 12 July 2005.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) to refuse to grant a protection visa to the appellant. 

2                     The appellant is a national of Pakistan.  Before the Tribunal he claimed to fear persecution because of his political activities as financial secretary in his local area for the Pakistan Muslim League when it held power in Pakistan.  He claimed that when the present President of Pakistan deposed the previous President, who had been supported by the Pakistan Muslim League, government agencies then arrested “the majority of active leadership and active workers” of the League on charges of embezzlement, murder, and acts of terrorism. 

3                     The Tribunal invited the appellant, through his agent as authorised recipient, to attend a hearing to give oral evidence and present arguments.  The appellant did not attend in response to that invitation.  The Tribunal, after considering background information in relation to Pakistan together with the appellant's claims and the contents of his visa application, indicated that it had found it difficult, without an opportunity to obtain further information from the appellant at a hearing, to satisfy itself that he had a well-founded fear of persecution.  It concluded that, in the circumstances, and on the evidence before it, it was not satisfied that the appellant’s experiences and circumstances had been as he claimed. 

4                     Before the learned Federal Magistrate, the appellant asserted that he had not been told by his agent of the invitation to attend the Tribunal hearing and he claimed that he had therefore been deprived of a hearing to which he was entitled.  The appellant also made general allegations of jurisdictional error and challenges to the merits of the Tribunal’s decision but gave no particulars of those matters.

5                     His Honour held, in the light of s 426A(1) of the Migration Act 1958 (Cth) (“the Act”), that the Tribunal had not made a jurisdictional error when proceeding to arrive at its decision.  That would have been so, the learned Magistrate held, even if he had been satisfied that the appellant had not actually received notice of the hearing.  It was also held that the appellant’s other claims had no merit or could not be made out. 

6                     By notice of appeal filed on 15 February 2006, the appellant claims that the Federal Magistrates Court did not take into account the extraordinary circumstances in which he had been deprived of his right to be heard by the Tribunal and that his agent had been guilty of fraud and corruption in his dealings with the appellant.  He also asserted that he had received no communication from the Tribunal about its reservations in respect of his claims before it made its decision, and that this showed that the Tribunal had already made up its mind to refuse his application. 

7                     In written submissions in support of his appeal, the appellant, who appeared in person, referred to the reservation in s 441G(2) of the Act, which provides;

‘If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant.  However, this does not prevent the Tribunal giving the applicant a copy of the document.’  (emphasis added)

8                     The appellant also referred to the acknowledgment by Smith FM that the Tribunal “might have” informed the appellant personally, as well as by his migration agent, of the hearing which it proposed to conduct on 17 June 2005.  He instanced the fact that his former migration agent, Mr Mollah, had subsequently had his migration agent’s licence cancelled or revoked.  However, the appellant did not go so far as to say that the Tribunal had actual or constructive knowledge between 19 June and 12 July 2005 of that cancellation or revocation.  (I indicate that 12 July 2005 was the date when the Tribunal handed down its decision of 20 June 2005).

9                     The appellant emphasised that his claim to have a well-founded fear of persecution in Pakistan, by reason of his political opinions and associations, was very serious and should have been fully ventilated before the Tribunal.  His fear was of “serious harm” within the mean of s 91R(1)(b) of the Act.  He stressed that no adverse inference should be drawn from the fact that Mr Mollah had speedily contacted him after 12 July 2005 to obtain instructions to seek a review in the Federal Magistrates Court of the Tribunal’s decision.  It was, he said, in Mr Mollah’s personal and financial interest to make that contact.  Finally, the appellant contended that the country information on which the Tribunal had relied did not reflect the reality of how susceptible to persecution were adherents to deposed political parties in Pakistan.  In this context, he pointed to the absence of written or oral evidence tending to corroborate the Tribunal’s finding. 

10                  I have carefully read the reasons for decision of Smith FM and have been unable to detect in them any failure to identify a jurisdictional error by the Tribunal.  In particular, I am unable to hold that there was jurisdictional error in the Tribunal’s application of the effect of ss 425 and 426A of the Act as to which a Full Court of this Court in VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407, at 414 [15] adopted the following statement of my own (VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1474, at [17]);

‘If the applicant’s argument were right, the Tribunal would be required in each case to be affirmatively satisfied that the invitation under s 425 had actually come to the notice of the applicant.  To proceed in the absence of such affirmative satisfaction would, on the applicant's argument, convict the Tribunal of jurisdictional error.  That argument flies in the face of the statutory scheme discernible in ss 441A and 441C and must, I consider, be rejected.

11                  Section 422B of the Act provides;

‘(1)      This division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2)        Sections 416, 437, and 438, and division 7A insofar as they relate to this division are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.’

12                  Division 7A includes s 441A, to which I referred in the extract from VNAA just quoted.  That section exhaustively defines the methods by which the Tribunal may give a document to a person, including an applicant for a protection visa.  I have been told that in a case decided this morning, Kim v Minister for Immigration and Multicultural Affairs [2006] FCAFC 64, a Full Court of this Court held that a corresponding provision of the Act governing the Migration Review Tribunal had a similar exclusionary effect, denying an applicant, who claimed not to have received a document from that Tribunal, any right to assert a contravention of the natural justice hearing rule.

13                  In these circumstances, although it may appear harsh that the appellant has been shut out by the negligence or misconduct of his migration agent from an effective right of a review on the merits of the delegate’s decision to refuse him a protection visa, the legislative provisions are intractable in precluding either the Federal Magistrates Court or this Court from re-opening the matter.  The appeal must therefore be dismissed with costs.  That will be the order of the Court.

Associate:

Dated:              12th May 2006.