BZACF and Anor v Minister For Immigration and Anor (No.2)
[2013] FCCA 486
•13 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZACF & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2013] FCCA 486 |
| Catchwords: MIGRATION – Application for review – Tribunal not considering s.36(2)(aa) where that subsection commenced after decision made but before external communication to applicant – SZQOY applied. |
| Legislation: Migration Amendment (Complementary Protection) Act 2011(Cth), Item 12 of Schedule 1 |
| BZAAW & Anor v Department of Immigration & Anor [2013] FCCA 74 Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 S20/2002 (2003) 77 ALJR 1165 SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1 SZILQ v Minister for Immigration and Citizenship (2007) 163 FCR 304 |
| Applicants: | BZACF & BZACG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 356 of 2012 |
| Judgment of: | Judge Jarrett |
| Hearing date: | By written submission |
| Date of Last Submission: | 6 February 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 13 June 2013 |
REPRESENTATION
| Solicitors for the Applicants: | Irish Bentley Lawyers |
| Solicitors for the First and Second Respondent: | Clayton Utz |
ORDERS
That a writ of certiorari issue to the Second Respondent quashing the decision of the Refugee Review Tribunal made on 22 March, 2012 in respect of the Applicants.
That a writ of mandamus issue directed to the Second Respondent to rehear and determine the Applicants’ application for review according to law.
That a writ of prohibition issue directed to the First Respondent preventing him or his agents or delegates from acting upon or giving effect to or enforcing the purported decision.
The First Respondent pay the Applicants’ costs of and incidental to the application fixed in the sum of $6,471.00 together with disbursements properly incurred.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 356 of 2012
| BZACF AND BZACG |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 22 March, 2013 I delivered judgment in this application for relief pursuant to s.476 of the Migration Act1958 (BZAAW & Anor v Department of Immigration & Anor [2013] FCCA 74). I dismissed the applications and ordered that the applicants pay the first respondent’s costs in a fixed sum.
Soon thereafter, the solicitors for the respondents brought to my Associate’s attention that they had filed further written submissions on 6 February, 2013 dealing with the effect of Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131, a judgment of the Full Federal Court handed down after the hearing in this application had been completed. On 7 February, 2013, the applicants’ solicitors delivered further written submissions addressing the same point.
In my judgment of 22 March, 2013, I did not consider either of the written submissions because I was not aware that they had been filed or delivered by the parties’ respective solicitors.
Consequently, the matter was the subject of a further directions hearing whereat the solicitor for the respondents undertook to seek instructions about her clients’ attitude to having the orders made on 22 March, 2013 set aside for the purposes of having the parties’ further written submissions considered. Those instructions were secured and by order made on 10 May, 2013 I ordered that the orders of 22 March, 2013 be set aside pursuant to r.16.05(2)(f) of the Federal Circuit Court Rules 2001.
These reasons are not intended to replace those delivered by me on 22 March, 2013, but rather are supplementary to them and address only the matter raised by the parties’ further written submissions.
Subsection 36(2)(aa) of the Migration Act was introduced by Item 12 of Schedule 1 to the Migration Amendment (Complementary Protection) Act 2011(Cth) and commenced on 24 March, 2012. The amendments made by that Schedule, including s.36(2)(aa), apply in relation to applications for protection visas that are either made on or after 24 March, 2012 or, relevantly in this case, “not finally determined” within the meaning of s.5(9) of the Act before 24 March, 2012.
The first respondent concedes that:
a)in SZQOY (above) the Full Court held that a decision of the Tribunal is not “beyond recall”, and the Tribunal member is not functus officio, until such time as that decision is communicated to a party external to the Tribunal;
b)the Tribunal’s decision, while dated 23 March, 2012 was not communicated to the applicants until 26 March, 2012;
c)the Tribunal member was not functus officio when s.36(2)(aa) of the Act commenced on 24 March, 2012;
d)one of the effects of SZQOY, implicit from the reasoning of all three judges of the Court is the proposition that a matter before the Tribunal is “no longer ... subject to any form of review under Part ... 7”, and hence “finally determined” for the purpose of s.5(9) of the Act, only when the Tribunal’s decision is unable to be recalled by the Tribunal member; and
e)as the Tribunal’s decision in the present matter was not beyond recall when s.36(2)(aa) commenced on 24 March, 2012 that subsection applied in relation to the visa applications in this case;
f)the Tribunal did not consider s.36(2)(aa).
The first respondent suggests that s.36(2)(aa) provides that one criterion an applicant may meet to be granted a protection visa is, that the applicant is “a non-citizen in Australia ... in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”.
Whilst the Tribunal’s decision does not explicitly refer to s.36(2)(aa), the first respondent points out that the Tribunal found that it was not satisfied that the applicant or his family had suffered serious harm from particular nominated political groups in Nepal or that there was a real chance the applicants will suffer serious harm from those groups in the reasonably foreseeable future. The first respondent argues that, while not explicitly referring to the criterion in s.36(2)(aa), the Tribunal’s findings suggest that the Tribunal had in fact considered whether there would be a “real risk” that the applicant would suffer “significant harm” should he be returned to Nepal, as required by that subsection.
Notwithstanding that, however, the first respondent quite properly concedes that it is probable that the Tribunal’s decision was nonethelesss affected by jurisdictional error because the Tribunal failed to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to “the issues arising in relation to the decision under review” for the purposes of s.425(1) of the Act.
The first respondent points out that “the issues arising in relation to the decision under review” were enlarged between the date of the Tribunal hearing and the date of the Tribunal’s decision by the commencement of s.36(2)(aa). The first respondent accepts that having regard to cases such as SZILQ v Minister for Immigration and Citizenship (2007) 163 FCR 304 and SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1 the Tribunal was obliged to give the applicants another invitation pursuant to s.425 of the Act to participate in a further hearing about those issues.
Having made that concession, the first respondent argues that the grant of relief is always discretionary (Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82) and there is good reason in this case to withhold relief because to grant relief would in any event be futile.
Futility is inevitable, the first respondent argues, because the findings of the Tribunal reveal that the applicant’s credibility had been so weakened that any further evidence would be given no weight because “the well has been poisoned beyond redemption.” (relying upon Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1174 at [49].)
The first respondent argues that all the applicant’s claims in this case were discredited by comprehensive findings of dishonesty or untruthfulness. The applicant’s claims to have suffered and to fear harm were entirely rejected by the Tribunal because the Tribunal did not find the primary visa applicant to be a truthful witness.
However, as the applicants point out, in a rehearing, potentially conducted by a differently constituted tribunal on quite possibly additional or different evidence and submissions, that tribunal will be asked to consider two related but separate questions: one under s.36(2)(a) and one under s.36(2)(aa) of the Act. I accept the applicants’ submissions that those separate questions invite different factual assessments, and that a tribunal on rehearing the matter could come to different conclusions.
I am not positively persuaded that there is no possibility that the outcome before another tribunal could or might be different. Accordingly, the application for review should be allowed with costs.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 13 June, 2013.
Date: 13 June 2013
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