BZABP v Minister for Immigration
[2012] FMCA 445
•1 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BZABP v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 445 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the Refugee Review Tribunal’s decision affected by jurisdictional error by reason that it denied the applicant procedural fairness; unreasonably refused to grant an extension to make further submissions; failed to comply with s.425. ADMINISTRATIVE LAW – Refugee Review Tribunal – functus officio. |
| Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(3), 424A(3)(a) – (c), 425, Part 7 |
| NHAI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10 Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214 NVKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 Saeed v Minister for Immigration and Citizenship [2009] FCAFC 41 SZQCN v MIAC [2011] FMCA 606 Khan v Minister for Immigration and Citizenship [2011] FCAFC 21 SZQQC v Minister for Immigration & Anor [2012] FMCA 410 Minister for Immigration and Citizenship v Li [2012] FCAFC 74 |
| Applicant: | BZABP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 5 of 2012 |
| Judgment of: | Jarrett FM |
| Hearing date: | 27 March 2012 |
| Date of Last Submission: | 27 March 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 1 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nguyen |
| Solicitors for the Applicant: | Brisbane Migration Law |
| Counsel for the Respondents: | Ms Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 4 January 2012 is dismissed.
The applicant pay the first respondent’s costs of and incidental to this application fixed in the sum of $6,240.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 5 of 2012
| BZABP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a Zimbabwean national, who arrived in Australia on a student visa in February, 2006. When his student visa expired, he applied for a Protection (Class XA) visa. His application was refused by the Minister’s delegate in the first instance, and then by a Refugee Review Tribunal. By this application he seeks review of the Tribunal’s decision to refuse to grant him a protection visa.
Having regard to the submissions made for the applicant the issues for determination are:
a)Whether, when determining the applicant’s review application the Tribunal denied him procedural fairness by refusing to extend the time imposed by the Tribunal within which the applicant could submit certain further evidence and submissions for the Tribunal’s consideration;
b)Whether a certain finding of fact made by the Tribunal was unreasonable because the Tribunal failed to give sufficient weight to the evidence before it; and
c)Whether, in the circumstances of the case, the Tribunal failed to discharge the obligations cast upon it by s.424A of the Migration Act 1958.
The applicant seeks orders that in practical terms set aside the decision of the Tribunal and that his application be remitted to a Tribunal to be dealt with according to law.
Background matters
The proceedings before the Tribunal commenced on 22 August, 2011 when the applicant lodged his application for review against the Minister’s decision to refuse to grant him a protection visa. The Tribunal could not make a decision favourable to the applicant on the basis of his application alone and so invited him to attend a hearing before the Tribunal on 15 November, 2011.
On 8 November, 2011 the applicant provided to the Tribunal further submissions and material in support of his application.
The applicant attended the hearing scheduled by the Tribunal on 15 November, 2011. At the hearing the applicant gave oral evidence and was represented by an agent. He presented documents and made further submissions in support of his claims.
Amongst other matters, the applicant claimed that he was in need of protection, in the sense used in the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees, because:
a)He was a teacher;
b)He was also a member of the Movement for Democratic Change (“the MDC”); and
c)He feared his life was under personal threat from local ruling youth militia, the police and military.
The Tribunal put to the applicant and his advisor that the country information then possessed by the Tribunal demonstrated that persons returning to Zimbabwe, including teachers, returned to better conditions generally. The country information referred to by the Tribunal was sourced from the UK Border Agency (“Operational Guidance Note for Zimbabwe” – March 2009 and April 2011), the Department of Foreign Affairs and Trade, Freedom House and from the United States’ State Department. The country information dealt with the position of MDC members and teachers generally within Zimbabwe.
Before me the applicant did not suggest that the Tribunal had misapprehended or misconstrued the country information it had available to it. Before the Tribunal, however, and in response to the Tribunal’s remarks about the country information the applicant’s agent said that the DFAT reports “were not as up to date as newspaper reports”. He sought from the Tribunal two weeks to make further submissions particularly in relation “to polling booths and needed time to contact posts in Africa”. He said that the applicant’s claims initially were summarised to keep it simple for immigration officers. In response, the Tribunal agreed to wait until 28 November, 2011 to receive further submissions and material from the applicant on those issues.
On 28 November, 2011 the applicant’s agent wrote to the Tribunal (sent by facsimile) requesting further time to provide the material due to problems with his computer and the late receipt of the material from third parties.
On 1 December, 2011 a Tribunal officer informed the applicant’s advisor by telephone that the Tribunal did not intend to grant any further extensions of time within which to submit the further material given that two weeks had already passed. The Tribunal officer did however point out that the Tribunal would consider any material received before a decision was made. The evidence reveals the agent said he would send the material by “express post” the following day.
No further submissions, material and no further communication was received from the applicant’s agent or the applicant before the Tribunal made its decision on 6 December, 2011.
On 8 December, 2011 the Tribunal received, in the post, a written submission from the applicant’s agent dated 1 December, 2011 and a second submission dated 7 December, 2011 together with some documents attached to it. Upon becoming aware that the Tribunal had made a decision on the application, the applicant’s agent requested that the Tribunal set aside its decision and consider the matter afresh taking into account the new submissions and material.
Despite that request, the Tribunal refused to set aside its earlier decision and to reconsider the matter in light of the new submissions. The Tribunal took the view that it was not legally able to do so.
The first issue
The applicant argues that the Tribunal “ignored” or “disregarded” material which was in support of the applicant’s claims – and in particular the submissions and material dated 1 December, 2011 and 7 December, 2011. However, at the time the Tribunal made its decision, it was not possessed of the relevant evidence or submissions even though it had been told that that material would be sent. The Tribunal cannot ignore or disregard something that it does not have. It was simply not cognisant of that material.
The Tribunal’s obligation was to comply with the procedural requirements of the Migration Act 1958. It was not obliged to afford the applicant common law natural justice. Part 7 of the Migration Act 1958 insofar as it imposes certain obligations of procedural fairness is a code that operates to the exclusion of the rules of the common law: Minister for Immigration & Multicultural Affairs v Lay Lat (2006) 151 FCR 214; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62, Saeed v Minister for Immigration and Citizenship [2009] FCAFC 41 at [25]-[46], Khan v Minister for Immigration and Citizenship [2011] FCAFC 21, Minister for Immigration and Citizenship v Li [2012] FCAFC 74 at [73].
However, it is also clear “that other – non-procedural – rules of natural justice are not excluded from the operation of the Act. The example usually cited is bias: VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562 at [27], SZCIJ at [65], Saeed at [30].”: Minister for Immigration and Citizenship v Li [2012] FCAFC 74 at [74] per Collier J..
Although not argued in this way, the applicant’s case must be that the failure by the Tribunal to withhold making a decision upon the applicant’s review application, or setting aside its decision of 6 December, 2011 and considering the matter afresh was a breach of either s.420 or s.425 of the Act. It is argued that this breach (of s.420 or s.425 of the Act or the common law rules of procedural fairness) is a jurisdictional error sufficient to justify making the orders sought by the applicant in this application.
Section 425 of the Migration Act 1958 obliges the Tribunal to hold a hearing in certain circumstances. Those circumstances were engaged in this case and a hearing was convened at which the applicant appeared together with the assistance of his agent. The applicant’s request to supply further information was accommodated by the Tribunal but in a controlled way. The process was not, and could not be, open ended. Although the Tribunal refused a formal extension of time within which to supply the additional information when requested on 28 November, 2011 it indicated a willingness to consider that information if it could be provided to the Tribunal before it made its decision. That attitude was made known to the applicant’s advisors at a time when:
a)The applicant and his representative were preparing an “important submission”;
b)The applicant’s representative expressed an intention to forward the submission to the Tribunal on 2 December, 2011 by “express post.”
Subsequently on 8 December, 2011 the Tribunal, by ordinary post, received a submission dated 1 December, 2011 and a submission dated 7 December, 2011. The envelope in which the submission dated 1 December, 2011 was received was scanned and post marked by Australia Post on 4 December, 2011.
In Minister for Immigration and Citizenship v Li the Full Court of the Federal Court determined that a decision of the MRT to refuse to adjourn a hearing can, in particular circumstances, constitute an error going to the jurisdiction of that tribunal, so as to warrant quashing its decision. The reasons for judgment of the members of that Court (Greenwood and Logan JJ and Collier J) make it plain that in terms of the issue there discussed, there is no practical difference in the legislative provisions that govern the natural justice hearing rule and the general obligations of a migration review tribunal to act according to substantial justice and the merits of the case and those that govern a refugee review tribunal.
In my view, however, there has been no failure on the part of the Tribunal in this case to afford the applicant procedural fairness or to operate in a way that is not according to substantial justice and the merits of the case. The applicant was granted one extension of time within which to provide further material to the Tribunal. The Tribunal was not obliged to extend the time to provide further submissions and material further. That the Tribunal refused to do so, and the reasons therefore, were clearly communicated to the applicant’s advisor. In circumstances where the Tribunal had refused to formally extend the time, but had indicated that it would consider any further material submitted to it before making its decision, and where it had not indicated when a decision might be made, it was incumbent upon the applicant and his advisor to ensure that whatever was to be placed before the Tribunal was forwarded without delay. The applicant’s advisor was clearly able to communicate with the Tribunal by facsimile (as the communication made on 28 November, 2011 attests) yet there is no explanation as to why the submission of 1 December, 2011 was not sent by facsimile or by express post as foreshadowed by the applicant’s advisor to the Tribunal.
I accept the submission that the failure by the Tribunal to consider the material sent by the applicant’s advisor on 1 and 7 December, 2011 was not due to any “unfairness” on the part of the Tribunal or any breach by the rules of “procedural fairness” but rather was due to the fact that the applicant’s agent decided to send the material by ordinary post rather than express post or other electronic means.
Having made a decision upon the applicant’s application, the Tribunal was unable to “re-open” its decision and reconsider the matter in light of the further material forwarded by the applicant: SZQCN v MIAC [2011] FMCA 606; cf SZQQC v Minister for Immigration & Anor [2012] FMCA 410.
In my view no jurisdictional error is established by this ground of review.
The second issue
The applicant points to two facts or findings made by the Tribunal which he alleges were “unreasonable” and which were made “by failing to give sufficient weight to the evidence before it.”
The findings made by the Tribunal sought to be impugned were not clearly identified by the applicant. In his written submissions his Counsel says this:
26. Particulars:
i.The Tribunal failed to give sufficient weight to the evidence provided by the Applicant in support of his employment status in his country of origin. The evidence that would otherwise, strengthen his claim for a protection visa.
ii.The Applicant provided evidence of employment as a teacher, by way of payslip;
iii.The Tribunal erroneously assumed that it would be unusual for a family member to have a payslip in their possession but did not take into account the cultural differences.
iv.It is not uncommon in some countries/cultures, where a close relative is relying on family income when seeking a personal loan or advancement.
v.The Tribunal unreasonably made a finding or assumption that every payslip must stipulate a person’s occupation. Hence, a finding that non-disclosure of the applicant’s occupation on his payslip, means that he was not a ‘teacher,’ was erroneous and unreasonable.
vi.The Tribunal made an unreasonable finding or assumption by relying on DFAT, country reports that the violence in Zimbabwe members had decreased, and that the situation for the applicant would be the same. This finding or assumption is erroneous, because it has failed to correctly evaluate each individual fact and circumstance of a particular case.
One of the issues for the Tribunal’s determination was whether the applicant was in fact a teacher. His case was that teachers in Zimbabwe were at risk of personal harm. They were also presumed to be members of the MDC and for that reason were also at risk of personal harm. The payslip mentioned in the applicant’s written submissions was evidence that he produced to the Tribunal in support of his contention that he was indeed a teacher in Zimbabwe.
The Tribunal expressed concerns about the way in which the payslip came into the applicant’s possession and having concluded that it was probably not reliable evidence did not treat it as providing any corroboration of the applicant’s claim to have been a teacher in Zimbabwe. Indeed, the Tribunal doubted that it corroborated the applicant’s claim in any way. Notwithstanding that, however, the Tribunal made a very clear finding that the applicant was indeed a teacher in Zimbabwe. That finding was based upon a statement to that effect in his 2003 passport and the applicant’s Bachelor in Education from Zimbabwe University.
Thus, although the Tribunal was unsatisfied as to the authenticity of the payslip and had concerns about the circumstances in which it came into the applicant’s possession, those doubts and concerns were ultimately immaterial to its decision. The Tribunal clearly accepted that the applicant had been a teacher in Zimbabwe. Thus, even if the Tribunal’s approach to the payslip evidence could be seen as unreasonable, which I do not accept, that approach involved no unreasonableness because the relevant factual finding was made in the applicant’s favour.
The second of the challenged factual finding which might be extracted from the applicant’s written submissions is the finding made by the Tribunal “that the violence in Zimbabwe members had decreased, and that the situation for the applicant would be the same”. As to that matter, the Tribunal said as follows:
157. The Tribunal has accepted the applicant is a teacher and it has considered the country information and accepts that teachers are being imputed to have MDC sympathies and therefore deemed a profession vulnerable to harm and have suffered harm particularly in 2008 and 2009. However, the more recent information is that there has been improvement with government paying increased salaries to teachers, many returning to Zimbabwe even where they had sought asylum. The Tribunal has also considered the UK Border Agency 2011 note referred to by the agent. The Tribunal notes it refers to teachers being at a heightened risk of ill treatment and whether there is a real risk by virtue of being a teacher will need to be considered on a case by case basis taking into account previous employment, accepted history of adverse interest of authorities. However, in considering the applicant’s particular circumstances, the Tribunal is not satisfied that the applicant faces a real change of persecution upon return for membership of particular social group as a teacher. As discussed above the Tribunal does not accept that the applicant suffered harm as claimed or is of interest to authorities. In addition, the Tribunal notes the applicant claimed he sought help in the education department. Furthers the applicant’s wife and child have been living in Harare since 2007 and the country information is that Harare is relatively safe. While they may have moved in Harare a number of times, the Tribunal is not satisfied that this is because of fear of harm. As discussed above, the Tribunal does not accept that the applicant’s wife or child have suffered harm and does not accept the claims made in the wife’s 2010 letter. As discussed above the Tribunal considers the claims made in the letter are not consistent with the applicant’s claims. Further the Tribunal considers it is a self-serving letter which lacks credibility.
The applicant’s submission merely takes issue with the weight that the Tribunal placed upon the country information that it had before it. As I pointed out above, the applicant did not seek to demonstrate that the Tribunal had misapprehended or misinterpreted any of the country information before it. The selection and weight of country information used by the Tribunal, is a matter entirely for it: NHAI v Minister for Immigration & Multicultural Affairs [2004] FCAFC 10 at [11] – [13], NVKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 at [81] – [84].
No jurisdictional error is demonstrated on the part of the Tribunal by this ground.
The third issue
As to the third issue the applicant claims that the Tribunal relied on information which was adverse to the applicant and in particular:
a)Information contained in a letter written by his mother stating that the applicant’s mother was the only family member that was a teacher; and
b)The country information obtained from DFAT which stated that there had been an improvement with the government in Zimbabwe paying increased salaries to teachers and that many people had returned to Zimbabwe even after they had sought asylum in another country.
The applicant’s written submissions seem to accept that those matters were put to him orally during the course of the hearing however he says that s.424A required that the Tribunal put those matters to him in writing and seek his response.
The respondent argues that the ground is misconceived. I agree.
Section 424A(3) provides that s.424A(1) does not apply to information:
a)That is not specifically about the applicant or another person and is just about a class or persons of which the applicant or another person is a member; or
b)That the applicant gave for the purpose of the application for review; or
ba) That the applicant gave during the process that lead to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
c)That is non-disclosable information.
I accept the respondent’s submission that the information contained in the letter written by the applicant’s mother clearly comes within s.424A(3)(ba) of the Act as it was information that was provided by the applicant to the Department during the process that lead to the decision that was under review.
The information obtained by the Tribunal from DFAT relating to the treatment of teachers in Zimbabwe was clearly information that was not specifically about the applicant but was about a class of persons of which the applicant was a member and thus, s.424A(3)(a) was engaged.
There is no merit in this ground.
Conclusion
The applicant has not established that the Tribunal’s decision is infected by jurisdictional error. It is a privative clause decision which this Court has no jurisdiction to review.
The application is dismissed with costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Date: 1 June 2012
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