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MIGRATION – claim for protection visa refused by Refugee Review Tribunal – primary Judge dismissed application under s 39B of the Judiciary Act – procedural fairness – obligations to give notice of hearing.

NASF v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

NASF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 162 (22 June 2004)
Last Updated: 22 June 2004

FEDERAL COURT OF AUSTRALIA


NASF v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCAFC 162



MIGRATION – claim for protection visa refused by Refugee Review Tribunal – primary Judge dismissed application under s 39B of the Judiciary Act – procedural fairness – obligations to give notice of hearing.


Federal Court Act 1976 (Cth)
Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth) ss 425(1), 425A(2)(a), 441A(1)(b), 441A(c)(i) and (ii), 441G(1)(b), 441G(4)


NADK of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2002] FCAFC 184
Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699
Stead v State Government Insurance Commission (1986) 161 CLR 141
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82











NASF V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1973 OF 2003




BEAUMONT, CONTI AND CRENNAN JJ
22 JUNE 2004
SYDNEY



IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1973 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: NASF
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: BEAUMONT, CONTI AND CRENNAN JJ
DATE OF ORDER: 22 JUNE 2004
WHERE MADE: SYDNEY


THE COURT ORDERS THAT:

1. The appeal be dismissed.


2. The appellant pay the respondent’s costs of the appeal.














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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1973 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: NASF
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: BEAUMONT, CONTI AND CRENNAN JJ
DATE: 22 JUNE 2004
PLACE: SYDNEY



REASONS FOR JUDGMENT


THE COURT:

1 The appellant appeals to the Full Court from a primary Judge’s decision dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal affirmed a decision of the delegate of the respondent to refuse the appellant a protection visa.

2 The appellant is a national of Thailand who arrived in Australia on 1 August 2002 on a short stay visa. On 6 September 2002 she applied for a protection visa. In her application for a protection visa the appellant stated that she was part of a group of women who worked in the border areas of Thailand and Burma assisting Burmese women escape persecution in Thailand. She claimed that many of these women were sold into prostitution and sent to Bangkok by corrupt officials and border guards. She claimed that she and other members of an unidentified network assisted these women to escape what the Tribunal described as ‘sex trade trafficking’ by moving to safe situations in Laos and Thailand. The appellant stated that the group was so successful that the Thai authorities had become agitated. She claimed that two of the group members had been arrested and that she feared severe punishment and jail if she remained in Thailand.

3 The respondent’s delegate refused her application for a protection visa on 3 October 2002. In her application for review by the Tribunal on 18 November 2002 the appellant modified her claim slightly. She claimed that no authority in Thailand could offer her protection from the ‘hidden element of corruption’. She claimed ‘certain people will want to make an example of [her]’.

4 On 2 April 2003 the Tribunal wrote to the appellant informing her that it had considered all the material then before it relating to her application but it was unable to make a decision in her favour on this information alone and invited her to attend an oral hearing scheduled for 8 May 2003. This letter was sent by registered mail to the applicant’s authorised recipient of correspondence, her migration agent Ms Zeng, at the migration agent’s post office box. This was the mailing address for receipt of correspondence, which the appellant had nominated in her application for review to the Tribunal. A copy of this letter was also sent to the appellant at her home address, as specified in her application for review. On 7 May 2003 a form signed by her migration agent was sent to the Tribunal stating that the appellant did not wish to attend the hearing. The Tribunal then proceeded to make its decision on the review, as it was entitled to, pursuant to s 426A of the Migration Act (‘the Act’), without taking any further steps to invite the applicant to appear before it. On 29 May 2003, the Tribunal handed down its decision affirming the delegate’s decision not to grant a protection visa.

5 In its reasons, the Tribunal stated that it was not satisfied that the appellant had a well-founded fear of persecution within the meaning of the Convention ‘because the Tribunal finds the [appellant’s] claims vague and lacking in any useful detail’. After listing some of the generalities in her evidence the Tribunal then said ‘In light of this very general and vague evidence, [the Tribunal] is unable to accept that her claims have any credibility or veracity’.

6 The appellant then sought an order under s 39B of the Judiciary Act 1903 (Cth) for setting aside the Tribunal’s decision.

7 The application was heard before the primary Judge on 30 September 2003. The appellant appeared in person and had an interpreter. The appellant’s claim was that she had been denied procedural fairness because she had not received the Tribunal’s letter of 2 April 2003 inviting her to appear at the oral hearing. She filed an affidavit in which she swore she did not receive the Tribunal’s letter of 2 April 2003 and she also informed his Honour that she did not receive the invitation to the hearing. She claimed that she had informed the respondent Minister of a change of her address by letter on 21 January 2003 some three months prior to the Tribunal inviting her to appear. This change of address form received by the Tribunal on 23 January 2003 advised of a change of address but indicated a different ‘residential address last provided’ (the wording on the form) from the address previously provided as her home address. According to the respondent, the Tribunal wrote a letter to the appellant at her new residential address on 23 January 2003 asking the applicant to confirm the change of address and setting out the last authorised address details, being the home address and the migration agent’s post office box as the mailing address. There was no reply to this letter. The Tribunal also wrote to her authorised recipient, her migration agent, on 23 January 2003 in the same terms. The appellant’s migration agent (the appellant did not argue that Ms Zeng was not her authorised migration agent) gave evidence before his Honour that she received the Tribunal’s letter of 23 January 2003 but she did not give notice to the Tribunal of any change of address because she assumed she was still instructed.

8 Ms Zeng also gave evidence that she had received the invitation to attend the hearing. Ms Zeng’s evidence was that she did not speak Thai, the appellant was unable to speak English and that all previous communications between the appellant and Ms Zeng had been conducted in English through a named intermediary who spoke fluent English. Ms Zeng said that upon receipt of the invitation to appear she telephoned the intermediary and told him of the hearing of 8 May 2003 asking him to let her know whether the appellant wished to attend. She gave evidence that he telephoned her subsequently and informed her that the appellant did not wish to attend the hearing. Ms Zeng then sent the relevant form to the Tribunal advising that the appellant would not be appearing.

9 His Honour adjourned the hearing before him from 30 September until 28 October 2003 to allow the appellant time to respond to the evidence given by her migration agent. The appellant did not provide any evidence to challenge the evidence from her migration agent.

10 The primary Judge identified the issue, which arose on the facts, as whether the Tribunal had complied with its obligations under s 425(1) of the Act to invite the appellant to appear before it. His Honour noted that the methods specified in the legislation for the giving of the requisite notice are set out in s 441A of the Act: see s 425A(2)(a) of the Act. The methods laid down by s 441A include delivery by prepaid post to the ‘last address for service’ or the ‘last residential address’ provided to the Tribunal by the recipient: see ss 441A(4)(b) and (c)(i), (ii) of the Act; further ss 441G(1)(b) and (4) of the Act provide that the Tribunal must give a document to the ‘authorised recipient’ (which the appellant’s migration agent was) and the Tribunal is taken to have communicated with the appellant when it has given the authorised recipient notice of the communication. His Honour found that the requirements laid down in ss 425A and 441A had been satisfied. He also found, relying on Ms Zeng’s unchallenged evidence, that the appellant appointed the named intermediary as her agent and Ms Zeng acted in accordance with her actual authority in signing the response to the invitation to attend the hearing. It was open to the primary Judge to make the findings he made on the uncontroverted evidence before him. His Honour then found that the appellant had not been denied, in any real sense, an opportunity to attend the hearing.

11 Further, his Honour stated:

‘Furthermore, no evidence has been put before me to indicate that there was an arguable case that the result might have been different in the event that the Applicant had attended the hearing. The Applicant has, therefore, failed to demonstrate any practical injustice; (see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699 at [36] and [37]).’

12 The appellant filed a notice of appeal from his Honour’s decision on 15 November 2003. The grounds of appeal are:

‘(i) that a breach of the rules of natural justice occurred in connection with the making of the Decision;

(ii) that the appellant was denied procedural fairness in connection with the making of the Decision;
(iii) that the making of the Decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(iv) that there was no evidence or other material to justify the making of the Decision.’

13 The appellant did not attend the hearing of the appeal set down on Friday, 14 May 2004 but a medical certificate was provided by her. As a result, the hearing date before this Court was adjourned so that the appellant could prepare and file further written submissions. On 25 May 2004, the appellant filed a document entitled ‘A written statement supporting the appellant’s case’ which purported to be her further written submissions. These submissions include unsworn evidence. In these submissions the applicant claimed:

‘The Tribunal comments in regards of hearing date, that I have contacted by the agent, and I have given consent to the agent that, I would not be able to attend at the hearing is untrue.

...

I did not give any authority to the [named intermediary] to tell the agent that I will not attend to the tribunal hearing. The agent should directly contact me about the tribunal hearing. The agent discovering as she has been contacted with [named intermediary] is a lame excuse to save her skin from the court condemnation.’

14 In essence, the appellant claims that because the Tribunal member conducted the hearing before him in the appellant’s absence this constituted a denial of procedural fairness. This submission raises the concerns articulated by the primary Judge as follows:

‘Although there’s no evidence from the applicant this morning, she has said she didn’t receive the invitation [to attend the hearing] and she didn’t authorise the document which declines the invitation. That perhaps could give rise to some argument of denial of procedural fairness or denial of the hearing.’


Those concerns were dealt with by the primary Judge by adjourning the hearing before him to give the applicant a chance to give evidence.

15 On the adjourned hearing of the appeal the applicant appeared for herself and had the assistance of an interpreter. When asked to give the basis upon which she claimed to be a refugee the applicant stated:

‘When I was in – live in – on the north of Thailand I’d work with a group of people that making cane furniture. There was – I was told that they’re a group of Burmese women coming into Thailand and at that stage I didn’t know who they are. I thought they are the group of women organisation that came into Thailand and at that time my shop need labour – need some workers so I didn’t know that by helping these people this become problems for me, become danger for me. There’s problem with all others, not just me, with 10 women in the group is called women organisation – women homemaker organisation. There was some policemen came in an asked me to do this and that but – or are going to help me to do this and that but they didn’t do anything, they just come into me just like they wanted money under the table. I’m not the only person that get into trouble like this, it’s everyone in the group also was in trouble and everyone now just run away everywhere and I came here and I cannot go back to Thailand even though I have children in Thailand I couldn’t – I’m not able to meet them.’


This appears to be in substance the evidence the appellant would have given to the Tribunal had she appeared before it.

16 The Tribunal’s invitation to the appellant was sent in accordance with statutory requirements as identified by the primary Judge. The Tribunal complied with its obligations to give the appellant notice of the hearing, notwithstanding the appellant’s assertions that she did not receive the notice. Accordingly there was no legal error in the primary Judge’s decision which is consistent with the decision of a Full Court in NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184.

17 Further, even if some procedural unfairness arose (which we do not accept), any attendance by the applicant before the Tribunal at which she repeated her claims for refugee status as they were stated before us is not likely to have led to a different outcome. Accordingly, any breach of the obligation to give procedural fairness as claimed has not given rise to any injustice: Stead v State Government Insurance Commission (1986) 161 CLR 141; Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82.

18 The appeal grounds are not made out. The appeal must be dismissed with costs.

19 There was a disquieting aspect of this case which does not affect the result but which is worthy of mention. The appellant stated that a number of details in the original application for refugee status did not accord with her instructions and it was not her signature on the application. This court is not empowered to undertake any forensic tasks in respect of such claims which were made, without notice, on the hearing of the appeal. Further consideration of them may be undertaken by the Minister under s 417 of the Act, or otherwise, but that is a matter for the Minister.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Beaumont, Conti and Crennan.



Associate:

Dated: 22 June 2004



Solicitor for the appellant: The appellant appeared in person



Counsel for the respondent: Ms R Pepper



Solicitor for the respondent: Sparke Helmore



Date of Hearing: 14 May 2004, 8 June 2004



Date of Judgment: 22 June 2004
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