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MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming persecution in Bangladesh - RRT invited applicant to attend but he did not receive the invitation - invitation also sent to the applicant's migration agent - applicant failed to keep in contact with the migration agent - whether the RRT entitled to proceed to a decision in the absence of the applicant considered - the RRT was so entitled and the proceedings were fair - application dismissed as incompetent.

SZAOZ v Minister for Immigration [2004] FMCA 702 (15 October 2004)

SZAOZ v Minister for Immigration [2004] FMCA 702 (15 October 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAOZ v MINISTER FOR IMMIGRATION
[2004] FMCA 702




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming persecution in Bangladesh - RRT invited applicant to attend but he did not receive the invitation - invitation also sent to the applicant's migration agent - applicant failed to keep in contact with the migration agent - whether the RRT entitled to proceed to a decision in the absence of the applicant considered - the RRT was so entitled and the proceedings were fair - application dismissed as incompetent.




Migration Act 1958 (Cth), ss.425, 441A, 441C, 477

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966

Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2

Applicant:
SZAOZ




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG785 of 2003




Delivered on:


15 October 2004




Delivered at:


Sydney




Hearing date:


15 October 2004




Judgment of:


Driver FM




REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:


Mr S Lloyd




Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) The application is dismissed as incompetent.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG785 of 2003

SZAOZ



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 24 September 2002 and handed down on 17 October 2002. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and made claims of political persecution. The background facts and circumstances relating to the applicant's protection visa application and the RRT decision on it is set out in paragraphs 2 through to 11 of written submissions prepared on behalf of the Minister by Mr Lloyd. I adopt those paragraphs for the purposes of this judgment:

The applicant, a citizen of Bangladesh, arrived in Australia most recently on 13 March 1999.[1]

He made an invalid application for a protection visa on 26 March 1999. It was wrongly dealt with and refused by the Minister on 9 April 1999. On 12 May 2000, the RRT determined that the original application had not been valid.[2]

On 28 July 2000, the applicant lodged a valid protection visa application.[3]

It was refused by a delegate of the Minister on 20 September 2000.[4]

The applicant applied to the RRT for a review of the delegate's decision on 28 September 2000.[5]

In June 2001, the applicant notified the RRT of a change of address.[6]

In July 2001, the applicant appointed a new migration agent, notifying the RRT of that appointment.[7]

On 6 August 2002, the RRT wrote to the applicant and his adviser notifying them that it had looked at all of the information relating to his application but was unable to make a decision in the applicant's favour. It invited him to attend a hearing.[8] This letter was apparently not received by the applicant (though there is no suggestion that it was not received by his migration agent).[9]

The applicant did not attend a hearing before the RRT.

The RRT handed down its decision on 17 October 2002. It refused his application essentially because it did not accept his claims on the limited evidence before it.[10]

2. The applicant instituted judicial review proceedings in this Court on 7 May 2003. He filed an amended application on 25 September 2003. That is the application which he relies on. It appears that the applicant may have had some assistance in preparing that application. It annexes the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2, and refers to the High Court decision in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30. Mr Lloyd deals with the amended application in paragraphs 12 through to 18 of his written submissions. I agree with those submissions and adopt them for the purposes of this judgment:

The amended application contains four grounds, though the first three appear to be inter-related.

The first ground alleges a denial of procedural fairness. The second a failure to observe proper procedures. The third alleges that the Part B documents were not "brought forward to the RRT".

It would seem that the first three grounds sought to be relied upon involve the decision of the High Court in Muin v Refugee Review Tribunal (2002) 76 ALJR 966. The elements of the procedural fairness point, from that case, which the applicant appears to rely upon are:

a) The RRT had indicated that it had asked the Secretary to send a copy of the plaintiff's documents and that when they were received it would look at them along with other evidence on the RRT file to determine whether it could make a favourable decision.

b) The RRT subsequently indicated it had looked at all the material relating to the plaintiff's application but was not prepared to make a favourable decision solely upon it.

c) The plaintiff believed that the RRT had received the Part B documents.

d) Some of the Part B documents were favourable to the plaintiff.

e) The documents had not been considered by the RRT member.

f) The plaintiff had been misled into believing that it was unnecessary for him to draw the favourable information in the Part B documents to the attention of the RRT.

g) If he had not been misled and had known that the Part B documents had not been received he would have taken certain steps to correct the situation and he would have tendered additional evidence in support of his position including decisions favourable to applicants in analogous situations.

In the present case, there is no evidence in relation to a majority of these matters and no agreed facts (unlike in Muin's case) from which any missing elements could be established or inferred. The Muin point simply cannot succeed without evidence. In these circumstances, the application is hopeless.

It may be observed that the applicant appears to admit that he did not even receive the RRT's letter which was said to be misleading. Hence, he could not have actually been misled or suffered any procedural unfairness.

The applicant's fourth ground is that the RRT's decision was not supported by any Part B evidence. It is not clear what this means. The RRT's decision was substantially premised upon the inadequacy of the applicant's evidence.

No error, let alone a jurisdictional error, has been disclosed.

3. The amended application does not establish any jurisdictional error in the decision of the RRT. The applicant filed written submissions on 12 October 2004. In those written submissions, the applicant refers to an additional issue. The applicant presented oral submissions to me this afternoon in English which were directed to the same issue. The issue is one of procedural fairness. The court book establishes, and the applicant confirmed, that he did not attend a hearing before the RRT. The applicant does not dispute that he was invited to a hearing but says that he did not receive the hearing invitation. This is corroborated by page 49 of the court book which is the envelope in which the hearing invitation was apparently sent to him on 7 August 2002.

4. It appears from that document that the hearing invitation was sent by registered post to the applicant at his last named residential address, although the address on the envelope is obscured by a return to sender sticker. The body of the hearing invitation letter[11] confirms that the hearing invitation was sent to the applicant at this last named residential address and that a copy was sent to the applicant's then migration agent at his business address in Marrickville. The applicant told me from the bar table that he was moving about a lot at the time because he could not afford to pay for accommodation and that he lost contact with his migration agent, Mr Kazi.

5. The applicant, although he did not give formal evidence, impressed me as a sincere and honest person and I believe what he told me. It is in any event corroborated by a file note which Mr Lloyd tendered on behalf of the Minister. The file note (exhibit R1) shows that the hearing invitation was indeed returned unclaimed. On 16 September 2002 an officer of the RRT contacted Mr Kazi who told the officer that he had lost contact with the applicant and that he, Mr Kazi, could not confirm whether or not the applicant would attend the hearing. In the circumstances, the officer noted that no further reply check was completed.

6. In the RRT decision[12] the presiding member said:

The Applicant was advised that the Tribunal had looked at all the information relating to his application but was unable to make a favourable decision on that information alone. An invitation was forwarded to the Applicant to attend a hearing and give evidence. There was no reply.

7. That was true in as much as no formal response to the hearing invitation was made. However, the RRT was aware that the hearing invitation had not come to the attention of the applicant personally because the hearing invitation had been returned unclaimed to the RRT. The applicant's migration agent had also advised the RRT that he had lost contact with the applicant. The question, in the circumstances, is whether it was procedurally fair for the RRT to proceed to a decision in the absence of any appearance by the applicant. I am satisfied that it was. The RRT had no means to contact the applicant beyond attempts to communicate with him at his last known address or through his appointed migration agent.

8. The RRT did all that could reasonably be expected of it in order to contact the applicant. In addition, the RRT complied with its statutory obligation under s.425 of the Migration Act 1958 (Cth) ("the Migration Act") to invite the applicant to a hearing. The hearing invitation was sent by a method prescribed pursuant to s.441A of the Migration Act and the applicant is taken to have received it by reason of the operation of s.441C. This may not seem a fair outcome to the applicant but any unfairness to him is not the fault of the RRT. I am satisfied that the procedure followed by the RRT was fair and that no jurisdictional error has been established.

9. I will therefore dismiss the application.

10. Mr Lloyd presses a notice of objection to competency filed on behalf of the Minister on 26 June 2003. The applicant told me from the bar table that he does not remember when he became aware of the RRT decision. The decision was handed down on 17 October 2002 and communicated to the applicant at his last known residential address by letter of the same date. A copy was also sent to the applicant's nominated migration agent. As is stated in the letter of 17 October 2002, the applicant is taken to have been notified of the decision seven working days after the date of the letter, or at least after it was sent.

11. I find that the applicant is taken to have been notified of the RRT decision no later than 31 October 2002. His judicial review application in this Court was filed on 7 May 2003. This is obviously more than 28 days after the applicant was notified of the RRT decision. Given that the decision of the RRT is free from any jurisdictional error, it is a privative clause decision. It follows that s.477(1A) of the Migration Act applies and the applicant was required to file any judicial review application within 28 days of the notification of the decision. This he failed to do. Accordingly, his judicial review application is incompetent. I so find.

12. I will therefore order that the application for judicial review be dismissed as incompetent.

13. On the question of costs, Mr Lloyd has sought an order for costs and did not wish to nominate an amount. I explained the position regarding orders for costs and the collection of them to the applicant. He did not wish to make any further submissions. On a party/party basis I am satisfied that an order for costs in the sum of $3,000 would be reasonable and appropriate in this matter. I will therefore order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 27 October 2004


--------------------------------------------------------------------------------

[1] court book, page 55.1

[2] court book, page 32.6

[3] court book, pages 1-27

[4] court book, pages 28-39

[5] court book, pages 40-43

[6] court book, page 44

[7] court book, page 46

[8] court book, pages 47-48

[9] court book, page 49

[10] court book, page 60.5

[11] court book, page 47

[12] court book, page 57
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