FEDERAL COURT OF AUSTRALIA

SZIPL v Minister for Immigration and Citizenship [2009] FCA 1405

SZIPL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 811 of 2009

COWDROY J

30 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The Appellant pay the costs of the First Respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The appellant appeals from the decision of Federal Magistrate Driver delivered on 24 July 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 27 September 2007. The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Protection (Class XA) visa to the appellant.

APPLICATION FOR A PROTECTION VISA

2                     On 23 September 2005 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. In her visa application the appellant listed her citizenship as ‘Syrian’; stated that she had no other citizenship; and stated that her place of birth was Syria. The appellant claimed to have a well-founded fear of persecution in that country. She claimed that her mother was an Iraqi national and her step-father (who was later found to be her father) and her two brothers were Syrian.She described how her family had fled from Syria to Iraq when she was a baby; that she had grown up and been educated in Iraq; that the family had fled from Iraq back to Syria in 1994; and that she had suffered discrimination in Syria as a result of her Christian religion, her Iraqi background and suspected affiliation with the Iraqi Baath Party.

3                     A delegate of the Minister refused the application for a protection visa on 16 November 2005. 

THE TRIBUNAL

4                     On 28 November 2005 the appellant applied to the Tribunal for a review of the delegate’s decision. On 23 February 2006 the Tribunal (at its first consideration of the Application for Review) affirmed the delegate’s decision. The appellant sought judicial review of this decision, and on 17 May 2007 by order of the Federal Magistrates Court of Australia the Tribunal’s decision was quashed and the Application for Review was remitted to the Tribunal to be determined according to law (see SZIPL v Minister for Immigration & Anor[2007] FMCA 643).

5                     On 26 June 2007 the Tribunal sent by facsimile to the appellant’s authorised recipient, pursuant to s 441G of the Migration Act 1958 (Cth) (‘the Act’), an invitation to the appellant to appear before the Tribunal on 14 August 2007. The ‘Response to Hearing Invitation’ was not returned, and the appellant failed to attend the hearing. On 22 August 2007 the Tribunal wrote to the appellant’s authorised recipient, seeking comment in respect of her claim to be an Iraqi, not Syrian national and seeking clarification of the identity of her step-father. The appellant did not respond to such letter. The transmission logs attached to such facsimiles indicated that they were successfully received by the facsimile machine to which they were addressed.

6                     It is an undisputed fact that none of the correspondence sent by the Tribunal by facsimile transmission was received by the appellant’s authorised agent because he had left the firm of solicitors who was acting for the appellant and, after 5 October 2007, there was no person at the premises where the facsimile machine of the authorised agent was located.

7                     Pursuant to s 426A of the Act, the Tribunal proceeded to make its decision without taking any further action. The Tribunal did not accept the appellant’s claim (which she had made before the previously constituted Tribunal) that she was a national of Iraq and not a national of Syria. The Tribunal accepted that the appellant’s mother was an Iraqi national. However, the Tribunal noted that the appellant’s claimed ‘step-father’ (which the first Tribunal concluded was the appellant’s father) was of Syrian nationality. The Tribunal did not accept that the appellant’s current Syrian passport had been acquired through bribery as the appellant had claimed in her statement to the Department. On the basis of the independent country information, the Tribunal found that the appellant’s father’s Syrian nationality entitled them to Syrian nationality and this was evidenced by the fact that the appellant’s nationality had been listed as Syrian on all of the official documentation which was before the Tribunal.

8                     Given the finding that the appellant was a national of Syria, the Tribunal assessed her claims against Syria as her country of nationality. The Tribunal was not satisfied that the appellant faced a real chance of persecution in Syria. The Tribunal stated:

The Tribunal accepts that the applicant and her family resided in Iraq for 20 years and that they returned in 1994. The Tribunal accepts that the applicant may have had difficulty obtaining employment and education in Syria. The Tribunal has not accepted that the applicant is an Iraqi national and has found that the applicant is a Syrian national. The Tribunal does not therefore accept that the applicant was denied education and employment for that reason. The Tribunal does not accept that the fact that the applicant’s mother was an Iraqi national or that she had lived in Iraq for 20 years would affect her ability to obtain employment and education, given that she was in possession of valid identity documentation showing that she is a national of Syria. While the Tribunal is prepared to accepts [sic] that the applicant may initially have been perceived as Iraqi given that she lived in Iraq for 20 years, has an Iraqi mother and may have spoken with an accent that differed from other Syrians, the Tribunal does not accept that the applicant could not readily have produced identification showing her status as a Syrian national. The independent evidence, cited in the decision of the previously constituted Tribunal, also indicates that there are many thousands of Iraqis living in Syria and there is no evidence of mistreatment, although they are not generally treated generously in terms of resettlement (US State Department Report on Iraqi refugees in Syria). The Tribunal does not therefore accept that the applicant was denied education or employment in Syria for a Convention reason. The Tribunal is also not satisfied that there is a real chance that the applicant would encounter difficulties in relation to employment or education for a Convention reason upon her return to Syria.

9                     The Tribunal affirmed the decision of the delegate not to grant the appellant a Protection (Class XA) visa.

THE FEDERAL MAGISTRATES COURT

10                  By Application filed in the Federal Magistrates Court on 4 June 2008 the appellant sought judicial review of the Tribunal’s decision. Such application stated:

1.       The Tribunal failed to carry out its statutory duty

a.         The Tribunal failed to invite the Applicant to a hearing – s. 425

b.         The Tribunal failed to advise the Applicant of adverse information, explain why it was relevant and give her the opportunity to comment upon it – ss. 424A, 424AA

2.       The Tribunal failed to consider all the integers of the Applicant’s claims

a.         The Tribunal considered that being slapped in the face during questioning did not constitute serious harm but did not go on to consider that such an assault could lead to a well founded fear of persecution in the future.

b.         The Tribunal only considered the legal position of the treatment of women in Syria but failed to consider the actual treatment of in society of women in Syria

3.       The Tribunal failed to properly apply the law to the facts as found

a.         The Tribunal found that the Applicant acquired Syrian citizenship through her step-father. The evidence discloses that Syrian citizenship is acquired only through a natural father

b.         The Tribunal had evidence that the Applicant’s mother and father are Iraqi’s [sic]

11                  In his decision delivered on 28 November 2008 Driver FM found that the Tribunal had met its statutory obligations by attempting to communicate with the appellant’s migration agent, Mr Turner. His Honour noted that the facsimile number used was the facsimile number identified in the authorised recipient form signed on 25 May 2007, and that such number was one of five postal or electronic addresses identified in the authorised recipient form. His Honour stated that because the Tribunal used one of those addresses in accordance with the Act, the appellant was taken to have received such correspondence.

12                  His Honour considered that while there is, in the ordinary or natural meaning of the word ‘transmit’ a concept of communication implying both dispatch and receipt, it was not inherent in the meaning of the word in the context of s 441A(5) of the Act that a facsimile, e-mail or other electronic communication must be seen and read by the intended recipient in order for it to be ‘transmitted’. His Honour considered that the critical fact was that there was evidence that the relevant facsimile transmissions were received at the number identified for Mr Turner. As his Honour observed: ‘the facsimile machine was operating successfully at the receiving end’. Therefore, while it was unfortunate that the hearing invitation and the invitation to comment were not in fact seen by Mr Turner and that the appellant thereby lost the opportunity of providing information and attending a hearing before the Tribunal, by virtue of the operation of s 441C of the Act, the appellant was taken to have received those invitations. The Tribunal was entitled to proceed in the manner it did.

13                  However, Driver FM allowed the application on the basis that there had been no ‘consideration by the Tribunal of whether the applicant was an Iraqi national as well as a Syrian national’: see SZIPL v Minister for Immigration and Citizenship and Another (2008) 222 FLR 142at [35]. His Honour noted that while the Tribunal referred to a publication entitled Citizenship Laws of the World by which it determined the appellant’s Syrian citizenship, it did not appear to have considered, by reference to that or any other information, whether the appellant was also an Iraqi national, having been born of an Iraqi mother. His Honour accepted the submission of the Minister that the finding by the Tribunal that the appellant was a Syrian national was a finding which was open to it on the evidence before it. However, his Honour went on to note that the Tribunal proceeded on the basis that the appellant’s ‘claim was a “bundled” claim that she was Iraqi and not Syrian, as if the two were mutually exclusive’. His Honour referred to s 36(6) of the Act, which requires that the determination of nationality be made solely by reference to the law of the relevant country. His Honour concluded that the Tribunal was confronted by two questions as to nationality, but only effectively answered one of them.

14                  Driver FM quashed the decision of the Tribunal, and ordered that the Tribunal re-determine the Application according to law.

APPEAL

15                  The Minister appealed this decision to the Federal Court of Australia. On appeal, both parties conceded before Flick J that no opportunity was extended to either party to make submissions relating to the law relevant to a claim for dual nationality, nor of the further facts which should have been found by the Tribunal and the inferences that should have been drawn based upon the Tribunal findings, if such a case as to dual nationality were to be advanced.

16                  In these circumstances, Flick J considered that both parties had been denied procedural fairness by the Federal Magistrate, and the matter was remitted to the Federal Magistrates Court for reconsideration in accordance with law: see Minister for Immigration and Citizenship v SZIPL [2009] FCA 143.

REMITTAL TO THE FEDERAL MAGISTRATES COURT

17                  On remittal, and upon further reflection with the assistance of submissions, Driver FM considered that the Tribunal had adequately dealt with the appellant’s claim of being at risk of harm in Syria because of her connection to Iraq (whether based on citizenship or otherwise). His Honour also maintained his previously expressed view that the Tribunal had met its statutory obligations in attempting to communicate with the appellant’s migration agent.

18                  By his decision delivered on 24 July 2009 his Honour therefore dismissed the Application for Judicial Review.

THE PRESENT APPEAL TO THIS COURT

19                  On 7 August 2009 the appellant filed in this Court a Notice of Appeal from the decision of Federal Magistrate Driver. The appellant raises the following two grounds of appeal:

1.             The learned Federal Magistrate erred in holding that the Second Respondent (Tribunal) had transmitted documents to the Appellant by facsimile where those documents had been sent but not actually received.

2.             The learned Federal Magistrate erred in finding that the Tribunal had adequately dealt with the Appellants [sic] claim that she was an Iraqi citizen and/or dual citizen of Iraq and Syria.

GROUND 1: NOTIFICATION

Submissions

20                  The appellant refers to the statutory duty to invite an applicant to a hearing as contained in s 425 of the Act and to provide an applicant with an opportunity to respond to information which may be a reason or part of the reason for affirming a decision under review as provided by s 424A of the Act.

21                  The appellant also refers to the methods by which a document may be given to a person as provided by s 441A and the prescribed method of facsimile transmission as provided by s 441A(5) of the Act.

22                  The appellant submits that the word ‘transmit’ as defined in the Macquarie Dictionary is ‘to send over or along, as to a recipient or destination; forward dispatch or convey’. Accordingly, the appellant submits that a document must be sent and received and not merely sent to satisfy the definition of ‘transmission’. Consequently, the appellant submits that such requirement was not met because the documents sent to the appellant’s authorised agent were never received by that agent.

Consideration

23                  Section 441A(1) of the Act authorises a Tribunal to forward a document to a person by one of the methods set out in that section. Section 441A(5) authorises the Tribunal to transmit the document, inter alia, by facsimile (see s 441A(5)(a)):

To the last fax number … provided to the Tribunal by the recipient in connection with the review.

24                  When the Tribunal commenced its second consideration of the Application for Review, the appellant’s authorised agent was notified by facsimile on 21 June 2007 of the remittal of the proceedings to it. In the same communication Mr Turner was notified that the Tribunal would send all future communications to the address nominated in the appointment form, unless otherwise notified.

25                  On 26 June 2007 the invitation to the appellant to appear before the Tribunal was forwarded to Mr Turner. There was no response to such invitation.

26                  On 22 August 2007, again using the same facsimile number, the Tribunal forwarded a letter under s 424A of the Act to Mr Turner. Again there was no reply. On 17 September 2007 the Tribunal forwarded to the same facsimile number an invitation to the handing down of the decision. There was again no response.

27                  On 27 September 2007 the Tribunal forwarded another letter to the same facsimile number informing Mr Turner of the Tribunal’s finding.

28                  On 2 April 2008 Mr Turner, who had by this date commenced his practice as Turner Coulson Immigration Lawyers, wrote to the Tribunal notifying them of a change in his contact details and requesting information concerning the status of the appellant’s application. A telephone notation made by an officer of the Tribunal on 10 April 2008 records that Mr Turner was informed by telephone that the Tribunal had made its decision.

29                  It is significant that s 441A(5) of the Act (which provides for facsimile transmission) deems service of a document to be given to an applicant as being effected if the document is transmitted ‘to the last fax number’ provided to the Tribunal. That is, service is effective if the document is forwarded to the facsimile number nominated. The Tribunal may not know the location of the facsimile machine to which the facsimile number is allocated, nor will it know whether the facsimile has been read by any person. However, those considerations are irrelevant since the obligation of the Tribunal is to forward the document by facsimile to the fax number nominated by the appellant. If the evidence establishes that the document forwarded by transmission has been successfully transmitted to that number, the statutory obligation under s 441A(5) is satisfied.

30                  In the present circumstances, there was evidence that the transmission to the appellant’s authorised agent’s facsimile was successful at the receiving end. Accordingly the invitation and the s 424A letter were deemed by s 441C(5) to have been received at the end of the day in which the documents were transmitted.

31                  The Court is unable to find any jurisdictional error in the actions of the Tribunal, nor the Federal Magistrate’s findings.

GROUND 2: DUAL NATIONALITY

Submissions

32                  The appellant submits that Driver FM erred in finding that the Tribunal had dealt adequately with the appellant’s claim of being at risk in Syria because of her Iraqi nationality.

33                  It is submitted that the Tribunal, by finding that the appellant was a Syrian and dismissing her claim that she was an Iraqi because of her Syrian nationality, failed to consider whether she was a dual citizen of both Iraq and Syria. The appellant submits that the possibility that she was an Iraqi national or had dual nationality was relevant because she feared refoulement from Syria to Iraq and also because the Tribunal was required to consider the claim that she faced persecution in Syria on the ground of her being an Iraqi national.

Consideration

34                  The Tribunal expressly found that the appellant was not an Iraqi national but rather was a Syrian. Such finding was based upon several undisputed facts. They were the fact that when applying for a Subclass 300 visa in 1999 the appellant provided original and certified documents attesting to her status as a Syrian national; that she provided a passport from the Syrian Republic issued in 1995; that she had stated on her application for a visa that she was a national of Syria and had no other nationality; that in an application for a Subclass 820 visa made in 2003 the appellant stated that she was a national of Syria; and that in the application for a protection visa made in 2005 the appellant stated that she was a national of Syria and had no other nationality. In addition, the appellant’s step-father (who was found to be the appellant’s father at the first Tribunal’s first consideration) was a Syrian national, entitling her to Syrian nationality. Aside from the mere fact that the appellant’s mother was Iraqi, there was no other evidence before the Tribunal that the appellant was an Iraqi.

35                  Therefore, the Tribunal did not find that the appellant was not an Iraqi on the basis that she was found to be a Syrian. Rather, the Tribunal expressly found her to not be an Iraqi on the basis that there was not sufficient evidence that she was an Iraqi, and there was a significant amount of evidence pointing to the appellant solely being a Syrian national.

36                  Even if, contrary to the Tribunal’s finding, the appellant was a dual national of Iraq and Syria, the two grounds upon which she claimed to fear harm were rejected by the Tribunal. Her claim to fear refoulment to Iraq was rejected by the Tribunal on the basis that as a national of Syria there was no reason for her to expect to be sent to Iraq. In short, it was not a well-founded fear. Further, no basis for persecution was found to exist from the appellant as an Iraqi national in Syria, even if the appellant was perceived to be Iraqi. The appellant’s espoused fear of being returned to Syria was related to her perceived lack of family support rather than persecution for a Convention-reason. The Tribunal observed that many thousands of Iraqis live in Syria and there is no evidence of their mistreatment.

37                  The findings of fact were open to the Tribunal and there is no error discernable in the findings of Federal Magistrate Driver. Accordingly, the Court dismisses the appeal.

Associate:

Dated:         30 November 2009