Case: SZGMB v Minister for Immigration [2006] FMCA 175
Outcome: affirmed
This is an application for leave to appeal from a decision of the Federal Magistrates Court given on 1 February 2006 ( SZGMB v Minister for Immigration [2006] FMCA 175). 2 The applicant lodged an application for a protection visa on 13 November 1997. A delegate of the respondent refused to grant the protection visa on 30 April 1998. The applicant applied to the Refugee Review Tribunal ('the Tribunal') for a review of that decision on 10 May 1998. On 11 March 1999 the Tribunal affirmed the decision not to grant the applicant a protection visa. 4 Before the trial judge, ([2006] FMCA 175 at [19]) and also before me, the applicant asserted, without giving evidence, that he had never received any notification of the Tribunal's decision until after he had been detained in 2005 by officers of the respondent's department. 5 It does not appear that his Honour invited the applicant to give evidence to support his assertion of non receipt of the letter of 11 March 1999. Instead, his Honour proceeded to consider the matter but did not determine whether the applicant had been notified in accordance with the Migration Act 1958 (Cth) under regulations in force on 11 March 1999. Rather, his Honour said that even if the Tribunal had made a jurisdictional error 'the lengthy and poorly explained delay would be sufficient to persuade the court to exercise its discretion not to grant relief by way of a constitutional writ' ([2006] FMCA 175 at [24]). 6 If there were evidence that the applicant had not in fact received the letter of 11 March 1999, then he had a reasonable explanation for his delay. 7 When the matter came before me for hearing, I inquired of Ms Radich, who appeared for the respondent, as to what the relevant law was regarding notification by the Tribunal of its decision to an applicant for review on 11 March 1999. Ms Radich was not in a position at that time to assist with that material and asked for time to put in a written submission. I granted her leave to do so and gave directions for the applicant to provide written submissions in response. On 20 March 2006, written submissions were received from counsel for the respondent, Ms McNaughton. On 27 March 2006 I received written submissions from the applicant. 13 The Tribunal was not satisfied that the applicant had been involved in religious activities as he had claimed. It was also not satisfied as to the credibility of his claim to have been arrested because of activities involving his Catholic faith in which he claimed to have been involved. The Tribunal also made other credibility based findings concluding, as noted by the trial judge ([2006] FMCA 175 at [7]): 'At the Tribunal hearing, the overall implausibility and lack of credibility of the applicant's claims was pointed out to him. The applicant was given the opportunity to clarify the contradictions regarding the various claims that he has made, but was unable to do so in any meaningful way either at his hearing or in the subsequent written submission. Given the significant adverse findings on credibility in relation to the applicant, the Tribunal cannot be satisfied that the applicant has a real chance of being persecuted for a convention reason in China in the foreseeable future, and is therefore not satisfied that the applicant's fear of persecution for a convention reason is well founded.' 14 The applicant told his Honour and also me that he suffers from motion sickness induced by travelling. He claimed to have been affected by that in the hearing before me even though he had been present in court for about one and a half hours before his matter was called on for hearing. He said that the motion sickness affected his ability to think and to respond. He said that a similar affliction had occurred when he gave his evidence to the Tribunal, and that had affected the fairness of the process both before the Tribunal, the Federal Magistrates Court, and presumably before me. I put to the applicant that he would always be affected by this at any hearing to which he had been brought, such as to the Court, and he appeared to agree with that proposition. In his written submissions, the applicant said that this condition: '...is now much better than before. So that there is no problem of carsick[ness] for attending [the] Magistrate Court hearing this time.' 15 I observed the applicant to respond intelligently to questions which I put and I did not observe him to have any apparent difficulty in doing so during the hearing. He was able to read from and refer to notes which he had prepared in his own language. Moreover, for example, when I asked him about whether he had received notification from the Tribunal by reference to the letter of 11 March 1999 contained in what had been the Green Book before his Honour, he was able immediately to pull the Green Book out of his bag and look up the relevant document, without any apparent problem at all. 16 And, his Honour noted that the applicant had at no time informed the Tribunal member that he had had any difficulty relating to his car or motion sickness ([2006] FMCA 175 at [18]). In his written submission the applicant said that he had not understood the Tribunal's procedures and that the Tribunal had not mentioned that if he were very sick another hearing date could be arranged. This was, he submitted, why he did not tell the Tribunal that he was sick and, so he argued, this is why the Tribunal made an error. 17 On the applicant's argument, he did not tell the Tribunal of the sickness he claims to have been suffering. That being so, there is no basis for an argument that the Tribunal committed any jurisdictional error in failing to deal with the carsickness claim. I am satisfied that this ground does not raise any sufficient doubt as to the correctness of the decision of the trial judge on it. It was open to his Honour to reject it, inter alia , because there was no evidence to support it. 18 Moreover, the applicant's complaints as to his motion sickness and any effect that may have had upon him at the hearing before the Tribunal have not been verified. The assertions which the applicant made about this matter both before his Honour and myself, were made as a submission not on oath. They were unsupported by any medical evidence. There is no suggestion in the reasons of the Tribunal, the trial judge or in the observations which I made of the applicant in court, which would enable a conclusion to be drawn that reliance upon this ground in an appeal would enjoy any prospect of success. 19 The applicant also complained that the assistance provided to him from a legal practitioner, apparently appointed under the Refugee Tribunal Legal Advice Scheme, was inadequate. In the judgment below, his Honour makes reference to the fact that there had been some tardiness on the part of counsel who had been appointed to give advice the applicant ([2006] FMCA 175 at [13]-[15]). As his Honour there noted, he had been informed by the counsel that had he provided advice to the applicant which was required under the scheme and that he, counsel, would not be appearing at the hearing. 20 The applicant complained that the relevant counsel had not obtained the tapes of the hearing before the Tribunal or had not listened to the tapes and that his case had been decided by his Honour without the applicant having been able properly to prepare it. Again, those complaints appear to be ones which would have no prospects of success. First, they are, again, new assertions which are not the subject of evidence on oath. In his written submission the applicant acknowledged that he had received legal advice, albeit late. His Honour made the finding that he was satisfied that the applicant had received the advice to which he was entitled under the scheme ([2006] FMCA 175 at [15]). Secondly, when I pressed the applicant to identify what was wrong with his Honour's decision, he said he was not able to identify any legal error because, understandably, he was not a lawyer. He said that he wanted a lawyer who would not charge and who could help him. Again, none of these complaints by the applicant raise any matter which would enjoy any prospect of success were leave to appeal granted. 21 As at 11 March 1999, s 430 of the Migration Act 1958 (Cth) ('the Act') provided: ' Refugee Review Tribunal to record its decisions etc. and to notify parties (1) 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; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based. (2) The Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made. (3) Where the Tribunal has prepared the written statement, the Tribunal must: (a) return to the Secretary any document that the Secretary has provided in relation to the review; and (b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.' Subsequently s 430 was amended by the Migration Legislation Amendment Act (No 1) 1998 (Cth); Schedule 3, Items 8 and 9. Item 8 repealed the former s 430(2) and Item 9 inserted ss 430A-430D. All these amendments commenced on 1 June 1999. 22 In the Migration Regulations 1994 (consolidated as in force on 10 December 1998; n.b: regulations 4.38-4.41 or 5.03 were not relevantly amended until 1 July 1999) ('the Regulations'), reg 4.40(1) provided that a notice or statement to be given to an applicant in relation to a decision of the Tribunal was to be taken to be duly given if it was posted to his or her last address for service which he or she provided in connection with the application. Regulation 4.41 provided that if a document was to be given to or served on a person for the purposes of a review by the Tribunal and no other provision in regulations allowed for service, then the document could be given or served on the address for service provided by the applicant by posting it to him or her at his or her last known place of residence.