FEDERAL COURT OF AUSTRALIA

SZFLM v Minister for Immigration & Citizenship [2007] FCA 863

CITIZENSHIP AND MIGRATION – migration – Refugee Review Tribunal– conduct of review – delays – failure by Tribunal to supply applicant with Tribunal’s decision and reasons

Held: Failure to comply with s 430B(6) did not render decision invalid but default may have other legal consequences.

Migration Act 1958 (Cth) ss 430B(6), 430D

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 considered

SZICO v The Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 435 referred to 

WACB v The Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190 referred to

SZFLM v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 387 OF 2007

MADGWICK J

31 MAY 2007

SYDNEY

THE COURT ORDERS THAT:

1.          The appeal be dismissed.

2.          The appellant pay the respondent’s costs of the appeal assessed in the sum of $3,000.00.

3.          The Refugee Review Tribunal be added as the second respondent.

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

REASONS FOR JUDGMENT

HIS HONOUR

1                     This is an appeal from a judgment of the Federal Magistrates Court given by Driver FM dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) which was adverse to the appellant.

2                     The appellant based his claim for refugee status on his alleged fear of persecution by the Chinese Government because he was an adherent of the Falun Gong doctrines and movement.  Various grounds of review were relied on by the unrepresented appellant before his Honour who rightly dismissed, without the need for discussion, all of them but one, namely the failure, as his Honour found, of the Refugee Review Tribunal to send a complete copy of its decision to the appellant. 

3                     Section 430(1) provides:

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; …

Section 430A provides:

(1)        This section applies to any decision on review by the Tribunal other than the following decisions:

(a)        a decision that is given orally; …

(2)        The Tribunal must invite the applicant and the Secretary to be present when the decision is handed down. …

Section 430B(1) is in the same terms as section 430A(2).  Section 430B(5) provides: “If the applicant and the Secretary are present at the handing down of the decision, the Tribunal must give each of them a copy of the statement prepared under subsection 430(1).”

Subsection (6) provides:

If the applicant is not present at the handing down of the decision, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under subsection 430(1).  The copy must be given to the applicant:

(a)        within 14 days after the day on which the decision is handed down; and

(b)        by one of the methods specified in section 441A.”

Section 430D(1) provides:

If the Tribunal gives an oral decision on an application for review, the Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection 430(1) within 14 days after the decision concerned is made.  The applicant is taken to be notified of the decision on the day on which the decision is made.

4                     His Honour accepted the submission of the first respondent that the only relevant consequence of a breach of s 430B(6) was to suspend the running of time for the purposes of the statutory time limits on judicial review and that no jurisdictional error arose.  In this regard his Honour followed WACB v The Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190 and SZICO v The Minister for Immigration and Multicultural Affairs [2006] FMCA 435 at [14].  As his Honour pointed out at [26]: “The potential mischief resulting from a failure to comply with sub section [430B](6) is that an applicant may hypothetically be deprived of the opportunity of seeking judicial review of a tribunal decision.”

His Honour continued at [26]-[27]:

However, as was made clear by the High Court in WACB, that mischief does not in fact arise because time does not run for the purposes of statutory time limits on access to the courts until the required notification is given.  Hypothetically, an applicant might challenge a purported notification of a tribunal decision which did not meet the requirements of s 430B(6) but there would be no point in doing so, given that in the absence of the required notification, it remains open to an applicant to apply in this Court or the High Court to challenge the Tribunal decision, not simply the notification.

It follows, and I find that, compliance with s 430B(6) is not generally a condition subsequent to the making of a lawful decision in accordance with Part 7 of the Migration Act.  It is a separate and enforceable statutory obligation on the Tribunal and a failure to comply with it, in accordance with the High Court decision in WACB, will render inoperative current statutory time limits on judicial review applications to the courts.  The point is academic in this case as the judicial review application was filed within the prescribed time limit.

5                     The appellant acknowledged before his Honour that he had received a complete copy of the Tribunal’s decision before the hearing in the Federal Magistrates Court. 

6                     I think his Honour was right for the reasons that he gave. 

7                     While his Honour was speaking in the context of the case before him, it should nevertheless be pointed out that, as presently advised (and I have not had full argument on the matter), it seems to me that an unremedied failure to comply with s 430D has consequences other than the postponement of time limits for seeking judicial review.  It is fundamentally important to any process of administrative review that the unsuccessful party should be told of  the decision and in a reasonably timely way.  It is particularly important here where questions of status are involved.  An unsuccessful applicant for review by the Tribunal would not know his likely human fate.  It seems to me that until such time as s 430D has been complied with, it would, for example, not be open to the Minister to seek to have the applicant concerned removed from Australia.

8                     Members of the High Court were at pains in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at [100] (per McHugh, Gummow, Kirby and Hayne JJ), to affirm that failure by a public officer to comply with a statutory obligation, while it may or may not affect the validity of an act or decision in question, may nevertheless be attended by legal consequences and that a court may restrain subsequent administrative action predicated upon supposed compliance with the unmet statutory condition until the default has been remedied. 

9                     I add that the appellant sought to raise some new grounds without descending to particulars.  There appears to be nothing in any of them.

10                  The appeal will be dismissed with costs assessed at $3,000.

Associate:

Dated:         4 July 2007