NACI v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 154

FEDERAL COURT OF AUSTRALIA

NACI v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 154

MIGRATION – judicial review – invitation to provide additional information – time within which to be provided – extension of time – whether granted

Migration Act 1958 (Cth) ss 424, 424B, 424C, 425 Migration Regulations 1994 (Cth) regs 4.35A, 4.35B, 5.03 NACI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1559 of 2001 LINDGREN, KIEFEL and FINKELSTEIN JJ 22 MAY 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1559 of 2001

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN: NACI

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGES: LINDGREN, KIEFEL and FINKELSTEIN JJ

DATE OF ORDER: 22 MAY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. 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 1559 of 2001

BETWEEN: NACI

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGES: LINDGREN, KIEFEL and FINKELSTEIN JJ

DATE: 22 MAY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT: 1 There is only one issue raised by this appeal. That issue is whether the tribunal was required to notify the appellant of the period within which the appellant could submit additional information to the tribunal. If the tribunal erred in that regard it should have refrained from determining his application for review until it had given that notification and the period had passed. 2 Only a brief statement of the facts will be necessary. The appellant seeks asylum in Australia. He claims to have a well-founded fear of persecution for a Convention reason if he were required to return to China, which he says is his country of nationality. Shortly after his arrival in Australia, the appellant applied for a protection visa. In the material in support of that application the appellant asserted that he had been persecuted by the Chinese authorities on account of his religious views and his political opinion. He produced a number of documents in support of his claim. The documents included untranslated copies of documents that purported to be a newspaper article, his birth certificate, his marriage certificate, his driver's licence and his identity card. In a statement which accompanied his application, the appellant referred to other documents including a book entitled "Meditating True Jesus Christ" which he said he had written, and a copy of the New Testament which he said he had prepared. The application was considered by a delegate of the Minister who was not satisfied that the appellant was a Convention refugee, and so refused to grant him a protection visa. The appellant took his application to the tribunal, seeking to overturn the decision of the delegate. 3 On 7 March 2001 the tribunal wrote to the appellant requesting him to provide it with the following "additional information": "· Your Chinese passport. · The originals of the documents provided with your application for a protection visa, together with translations into English, such translations must be completed by a NAATI accredited translator. · Your book 'Meditating True Jesus Christ', together with translations of the title, contents and dedication pages into English, such translations must be completed by a NAATI accredited translator. · A copy of the New Testament you copied in China in March 1993, and which you brought with you to Australia, together with translations of the title, contents and dedication pages into English, such translations must be completed by a NAATI accredited translator." The letter stated that the information "is to be provided in writing, and is to be received at the Tribunal by 28 March 2001". The appellant says that he sent the additional information to the tribunal by express delivery post on about 24 March 2001. On 29 March 2001 the appellant arranged for a Chinese interpreter to telephone the tribunal to ascertain whether it had received the additional information. The person with whom the interpreter spoke said: "I can't find it [a reference to the additional information] in the file but we will certainly look for it. Maybe he wants to fax one more time." The appellant chose not to send the documents again as "there were too many documents to send … by fax". In any event, he assumed that "the tribunal would find or receive [his] mail or let [him] know in writing if [the documents were] not found." 4 The tribunal dealt with the application to review on the basis the appellant had not responded to the request for additional information. That is, it determined the application "on the papers", without affording the appellant an opportunity to be heard. Having considered the written material the tribunal was not satisfied that the appellant was a Convention refugee, and it affirmed the decision under review. 5 We turn now to the statutory provisions that form the basis of the appellant's challenge to the tribunal's decision. In conducting a review the tribunal may get any information that it considers relevant: s 424(1). To that end the tribunal may invite a person to give it "additional information": s 424(2). Subject to immaterial exceptions that invitation must be in writing (s 424(3) in combination with s 441A) and must specify "the way in which the additional information … may be given" (s 424B(1)). If the invitation is to give additional information otherwise than at an interview, the invitation must specify the period within which the additional information is to be provided: s 424B(2). That period must be the prescribed period, or if no period is prescribed, a reasonable period: see again s 424B(2). (The relevant prescribed period is 14 days after the day on which the invitation is received: Migration Regulations, reg 4.35A. Under the regulations in force at the time, a document sent by the tribunal to a place in Australia is taken to be received 7 days after the date of the document: reg 5.03.) The tribunal may extend the period for a further period: s 424B(4). In the case of information to be provided from a place in Australia, the extended period begins when notice of the extension is given and ends 28 days later: reg 4.35B. The consequence for a visa applicant who has been invited to provide additional information to the tribunal, but does not respond, either within the prescribed period or any extended period, is that the tribunal may determine the application without inviting the applicant to appear to give evidence and present argument: s 425(2)(c) in combination with s 242C(1). 6 The appellant accepts that the invitation to provide the tribunal with additional information made on 7 March 2001 complied with the statutory requirements. That is, the appellant accepts that the invitation was in writing, specified the way in which the additional information was to be provided, and required the information to be given within the prescribed period. However the appellant says that the period within which the information was to be provided was extended, and the extension did not comply with the statutory requirement to specify the further period within which the information could now be provided. For reasons which will soon become apparent, it is only necessary to deal with the first limb of this complaint. 7 One event which could constitute the grant of an extension of time is the statement by the unidentified tribunal officer to the appellant's interpreter that the documents allegedly sent to the tribunal could not be found and that "maybe [the appellant] wants to fax one more time". It seems to us to be beyond doubt, however, that this statement could not be characterised as an extension of time. In the conversation the tribunal officer did no more than indicate that a search would be conducted at the tribunal offices to see if the appellant's documents could be discovered, but if the appellant wished to do so he could fax copies. In this regard it must be remembered that the additional information that had been requested was the originals of certain documents. The tribunal officer's comment could not be understood as a reference to the originals because the officer had been told that the appellant had forwarded them to the tribunal. Accordingly there was no point in extending the time for compliance with the original invitation. Although the appellant did not make this point, we would not accept that the tribunal officer was requesting the appellant to provide further "additional information" namely copies of the documents in question. Leaving aside the fact that most of the copies were already in the possession of the tribunal, the language attributed to the officer is not the language of extension or of a new invitation for documents. 8 The appellant says that, apart from the conversation with the tribunal officer, the tribunal had decided to extend the time within which he could respond to the invitation, but had failed to notify him of that fact. As evidence of this decision, the appellant points to certain comments made by the tribunal in the course of its reasons. In its reasons the tribunal referred to the fact that it had invited the appellant to provide it with information but that he had not done so before the time for giving it had elapsed. The tribunal then said that: "Additional time, six weeks (15 May 2001), had been allowed in which the applicant could contact the Tribunal and make any submissions. No such contact occurred nor submissions made." The appellant says that this indicates that the tribunal granted an extension of six weeks. 9 When its reasons are read as a whole, it is apparent that the tribunal did not grant the extension as alleged. On more than one occasion the tribunal referred to the fact that the appellant had not responded to the invitation to provide further information within the specified time without suggesting that the time had been extended. Moreover, the sentence we have cited refers only to the possibility of the appellant making submissions to the tribunal and not to him providing the documents that had previously been requested. We agree with the trial judge that the reference to the tribunal's interest in receiving late submissions demonstrates only that the tribunal was predisposed towards hearing the appellant. It does not indicate that the appellant could provide further information as of right and out of time. 10 In the result, the trial judge was correct in dismissing the application for review. The appeal from his decision will be dismissed with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.