BRGAI of 2008 v Minister for Immigration

[2009] FMCA 391

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRGAI of 2008 v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 391

MIGRATION – Review of Refugee Review Tribunal decision – alleged jurisdictional errors of law – failure to disclose adverse findings – failure to provide adequate opportunity to present arguments and give oral evidence – alleged negligent advice or conduct by an agent or advisor.

Migration Act 1958 (Cth)

Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
SZGCH v Minister for Immigration [2005] FMCA 1849
SZLHP v Minister for Immigration and Citizenship (2008) 172 FCR 170
SZHVM v Minister for Immigration and Citizenship (2008) 170 FCR 211
SZLOJ v Minister for Immigration and Citizenship [2008] FCA 1693
SZLSO v Minister for Immigration and Citizenship [2008] FCA 1174
SZLYD v Minister for Immigration and Citizenship [2008] FCA 1748
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123

Applicant: BRGAI OF 2008

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 214 of 2008

Judgment of: Burnett FM

Hearing date: 3 December 2008

Date of Last Submission: 3 December 2008

Delivered at: Brisbane

Delivered on: 20 May 2009

REPRESENTATION

Counsel for the Applicant: Mr Nguyen

Solicitors for the Applicant: Southside Lawyers

Counsel for the Respondent: Ms Wheatley

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application be dismissed.

2. That in default of the applicant making application within seven (7) days of this order for any other order, the applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 214 of 2008

BRGAI OF 2008

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of the People’s Republic of China who entered Australia on 26 August 2007.  On 4 October 2007 he applied for a Protection (Class XA) visa on the basis that he was a non citizen in Australia to whom Australia had protection obligations under the 1951 Convention relating to the status of refugees as amended by the 1964 protocol relating to the status of refugees (the Convention).  The delegate refused the visa application on the basis that the applicant was not a person to whom Australia had protection obligations under the Convention.

2. After considering the Department’s file relating to the applicant and after affording the applicant an opportunity to present before it to give oral evidence and to present arguments at a hearing scheduled for 19 February 2008 the Refugee Review Tribunal (the Tribunal) concluded the applicant was not a person to whom Australia had protection obligations under the Convention. It concluded that he did not satisfy the criteria set out in section 36(2) of the Migration Act 1958 (Cth) (the Act) for a protection visa. It dismissed his application.

3. The applicant now seeks judicial review of that decision.  He contends the Tribunal committed jurisdictional errors of law in that it denied him procedural fairness.  Initially the allegation was bereft of any particularity but more recently it was stated to be that the Tribunal did not provide him with an adequate opportunity to respond to the lack of evidence regarding his application as the invitation addressed to him was not in a language that he would sufficiently understand given his significant language and cultural barriers.  He claims that he was thereby deprived of a fair opportunity to respond to adverse material.

Enlargement of Grounds for Review

1. In his initiating application the applicant applied for “an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act 1958”.  The ground advanced in support of the application was that the Tribunal “committed jurisdictional errors of law in that it denied the applicant procedural fairness”.  No particulars were provided.

2. In submissions provided by the respondents in compliance with the Court’s directions the respondent addressed this allegation. 

3. In the meantime the applicant, with the assistance of pro bono counsel, filed written submissions.  Under the heading “Ground of Appeal” it advanced as the issue for the application:

   “1. The Refugee Review Tribunal (“the Tribunal”) fell into jurisdictional error in that it denied procedural fairness to the Applicant as well as acting in breach of its obligations under the law (in breach of section 359A of the Migration Act).”

   It provided particulars in support of that allegation.

First ground – Failure to disclose adverse findings

1. The reference by the applicant to section 359A of the Act was clearly in error.  Plainly he intended to refer to section 424A;   irrespective of that error the allegation that the Tribunal acted in breach of that provision raised a fresh ground of review.

2. The powers of review are contained in section 476 of the Act. Powers to extend time are provided in the Courts Rules by rule 7.03(4).

3. Given the respondent had adequate time to respond to the additional ground advanced and there was no alleged or demonstrated prejudice to it I consider that it is appropriate to enlarge the time for making application in respect of the second ground.  In any event applying a beneficial approach to the construction of the application it is open to accept the applicant’s complaint concerning the alleged failure to comply with s424A of the Act as a particular of the denial of procedural fairness referred to in the application.

4. Additionally, in the course of oral argument, a further ground of alleged jurisdictional error was raised by the applicant.  That further ground was also addressed by the respondents both orally and subsequently by supplementary written submission.  No prejudice was alleged or demonstrated in respect of that matter.

5. It follows that I consider the Court should exercise its discretion to enlarge the time for review of those matters and do so.

6. Two grounds were advanced on behalf of the applicant.

7. In his submissions Counsel for the applicant acknowledged that the Tribunal wrote to the applicant informing him of his right to give evidence and support his application and to attend before it and provide oral evidence and present arguments.  He also acknowledged the applicant was informed of the risk of a decision by the Tribunal if he did not attend at the hearing.

8. Despite those acknowledgements the applicant contends that in proceeding to determine the application against him in his absence the Tribunal breached section 424A of the Act.  He submitted the letter addressed to the applicant failed to disclose to the applicant clear particulars of any information the Tribunal considered would be the reason or part of a reason for affirming the decision under review and ensuring the applicant understood why it was relevant to the review and the consequence of it being relied on in affirming the decision under review.  He contended that the Tribunal provided insufficient particulars and insufficient explanation such that he was denied the opportunity to arrive at that understanding and to respond to it fully and appropriately. 

9. It was submitted that the section 424A letter of 20 December 2007 commenced the second paragraph by stating:

   “The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone.”

   but that itself provided insufficient particulars of the adverse information relied on by the Tribunal for it to reach this conclusion.  That is, the Tribunal, did not inform the applicant of its impression that he was not a Falun Gong practitioner or he was ever involved in Falun Gong activities.  The applicant says the Tribunal ought to have specified its concerns that would have been likely to have been adverse to the applicant.  These included the two instances provided in the reasons.  The first was the Tribunal’s remark concerning the applicant that “one day, the neighbourhood committee went to his home but he does not say when that occurred”[1]; and, later in the same paragraph of reasons its statement, “… he claims that because of his involvement in the practice local police went to search his home where they discovered evidence of his connection with Falun Gong, but he does not say when the police went to his home.”.

   [1] Reasons for decision page 5 at 8

10. The applicant submitted that section 424A(1)(a) provides the Tribunal must “…give to the applicant…clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”.  Accordingly he contended the Tribunals failure to provide to the applicant notice that it was concerned the evidence did not address the bona fides of he being involved in Falun Gong activities and he being a Falun Gong supporter contravened s424(1).

11. The respondent submits that no obligation arose pursuant to section 424A(1) because the only material before the Tribunal was the supporting statement with the applicant’s original application for a protection visa.  Accordingly, the respondent submitted, section 424A(3)(ba) applied, namely, section 424A(1) did not apply to information that the applicant gave during the process that led to the decision that was under review other than such information as was provided orally by the applicant to the Department.

12. The correctness of the Tribunal’s approach in not being required to provide the applicant with a section 424A(1) invitation in circumstances where the Tribunal relied upon information provided by an applicant during the process that led to the decision under review was affirmed in SZLSO v Minister for Immigration and Citizenship [2008] FCA 1174 at [31] – [32]; SZLOJ v Minister for Immigration and Citizenship [2008] FCA 1693 at [15]; SZLYD v Minister for Immigration and Citizenship [2008] FCA 1748 at [17] – [18].

13. In any event the matters complained of do not pertain to “information” rather they were more correctly characterised as the Tribunal’s “doubts”, “thought processes or subjective appraisal”; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]. In SZBYR v Minister for Immigration and Citizenship (supra) the High Court expressly observed in respect of the decision under appeal:

    “…Finn and Stone JJ correctly observed in VAF v Minister for Immigration, Multicultural and Indigenous Affairs that the word “information’,

    “does not encompass the Tribunal’s subjective appraisals, thought processes or determinations… nor does it extend to identify gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps”.”

14. Furthermore it is well settled that section 424A does not require matters to be given of every matter the Tribunal might think relevant to the decision which is under review as section 424A has a more limited scope; SZBYR v Minister for Immigration and Citizenship (supra) at [21] – [22].

15. It follows I accept the respondents submissions that there was no obligation upon the Tribunal in these circumstances to give the applicant any invitation pursuant to section 424A(1) in respect of the matters complained of.

16. As no jurisdictional error has been demonstrated the decision is a privative clause decision; section 474.  It follows the application fails on that ground.

Ground 2 – Failure to provide adequate opportunity to present arguments and give oral evidence

1. The applicant submits that the Tribunal did not provide him with an adequate opportunity to respond to the lack of evidence in his application before the Tribunal.  In particular it was submitted that the language of the letters of 20 December 2007 and 21 December 2007 inviting the applicant to give oral evidence and present arguments were not expressed “in a language that the applicant could sufficiently understand, given the clear and significant cultural barriers”.[2]

   [2] Applicant’s submission at para 1.1.2 page 9.

2. The applicant submitted that the consequence of this was that he was “unaware of the nature of the hearing and its consequences on the effect of the decision to refuse his visa thus being denied the opportunity to arrive at that understanding, and then to respond fully and appropriately.”[3]

   [3] Applicant’s submissions at para 1.1.2 page 9.

3. The applicant acknowledged that it was open for the Tribunal to find that his lack of knowledge of the Falun Gong practices might be rejected as a fabrication or affect his general credibility.  However he submitted this ought not have been the case in this instance because there was no evidence before the Tribunal to suggest the applicant lacked the knowledge of his claims of association with Falun Gong.  It was submitted his application did not provide sufficient particulars of the claims concerning his knowledge of Falun Gong practitioners due to his lack of understanding of the relevance of this information and its consequences on the effect of the decision.  He claims that had he understood the relevance of the information he would have been able to demonstrate his knowledge of Falun Gong practices and beliefs.

4. In effect the applicant contends he was not properly informed of his need to address the absence of evidence concerning the matter central to his application, namely his knowledge of Falun Gong practices and beliefs and association with Falun Gong practitioners.

5. However for reasons detailed above the obligation on the Tribunal was to consider the material submitted to it and raise any additional concerns by the processes provided in section 424A including Part 6 Division 4 of the Act.  The invitation the applicant complains ought to have been forwarded was not one directed to “information” but rather to “identified gaps or defects or lack of detail or specificity in evidence”; VAF v Minister for Immigration and Multicultural and Indigenous Affairs[4] at [24]. For reasons addressed above this complaint has no basis in law.

   [4] VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123.

6. The applicant’s submissions on this point also complained that the invitation of itself was not expressed in a language the applicant could sufficiently understand.  There is no issue that the Tribunal gave proper details concerning matters of the time and date for oral hearing and of its invitation.  Likewise the Tribunal’s letter of 20 December 2007 plainly observed that it had considered the material before it but “it was unable to make a favourable decision on this information alone”. 

7. If the applicant did not properly understand the Tribunal’s invitation and/or letter then it was incumbent on him to ensure that when he received such an important letter from the Tribunal that he would take appropriate steps to ensure that he understood what the letter stated; SZGCH v Minister for Immigration [2005] FMCA 1849 at [5].

8. The applicant made no such enquiry of the Tribunal.

9. It follows in my view that no jurisdictional error has been demonstrated on behalf of the Tribunal upon this ground.

Additional error

1. Finally it was submitted in oral argument on behalf of the applicant that there may be a basis for jurisdictional error because of alleged negligent conduct by his advisor and/or migration agent.

2. The applicant’s complaint in this regard was not clearly articulated.  Additionally it was raised late in the application and not on notice.  However for completeness I deal with the issue as the respondent did engage on the point.

3. It is now well settled that bad or negligent advice or conduct by an agent or advisor which falls short of fraud is not of itself sufficient to set aside a Tribunal decision; SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 at [53]; SZLHP v Minister for Immigration and Citizenship (2008) 172 FCR 170 at [20]; Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17 at [33]; and, SZHVM v Minister for Immigration and Citizenship (2008) 170 FCR 211 at [45] – [54].

4. This ground too fails.

Conclusion

1. The applicant seeks to review a decision of the Refugee Review Tribunal made 25 February 2008.  It has advanced three grounds namely:

   a)Failure to disclose adverse findings as required;

   b)Failure to provide adequate opportunity to present arguments and give oral evidence;

   c)The alleged negligent conduct of his advisors.

2. Concerning the first ground the application fails because of well settled authority providing that in these circumstances the Tribunal was not required to do more.  The matters concerning the Tribunal pertained to its gaps, defects and lack of evidence.  They did not relate to information.

3. In respect of the second ground the Tribunal did cause notice of opportunity to respond to be forwarded to the applicant.  It was then incumbent upon the applicant to take appropriate advice upon receipt of such notice.  He did not do so.  His application fails on this ground.

4. Finally it is well settled that the alleged negligence of his advisor is non basis for an application of this kind.

Orders

1. Application dismissed.

2. In default of the applicant making application within seven (7) days of this order for any other order the applicant pay the respondent’s costs of and incidental to the application fixed in the sum of $5,000.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate:      Beverley Schmidt

Date:              19 May 2009