FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GORDON v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 818 |
| MIGRATION – Application to review decision of Migration Review Tribunal – whether Tribunal erred in consideration of a claim of domestic violence – extent of Tribunal’s obligations under s.359A of the Migration Act 1958 (Cth). |
| Migration Act 1958 (Cth), ss.65, 348, 357A, 359A, 359, 360, 424A Migration Regulations 1994 (Cth), reg.1.15A |
| Applicant: | MERCY AKU WOTORCHI GORDON |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 439 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 17 August 2011 |
| Date of Last Submissions: | 5 September 2011 |
| Delivered at: | Sydney |
| Delivered on: | 20 October 2011 |
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Details
- Case
- [2011] FMCA 818
- Decision Date
CaseChat Overview and Summary
In Gordon v Minister for Immigration, the Federal Court of Australia addressed the interpretation and application of section 424A of the Migration Act 1958 (Cth). The applicant, Gordon, challenged the decision of the Refugee Review Tribunal (RRT) and sought judicial review of the Minister for Immigration's decision to affirm the RRT's decision. The primary legal issue before the court was whether the RRT was required to consider and disclose potentially adverse information in accordance with section 424A of the Act.
The court examined the obligation under section 424A, which requires the Tribunal to consider whether certain information would be the reason or part of the reason for affirming the decision under review. The court found that the obligation under section 424A depends on the RRT's consideration or opinion that certain information would be the reason for affirming the decision. The court held that there was no evidence or necessary inference that the RRT had considered the file note to be the reason for affirming the decision. The RRT's reasons indicated that the decision was based on internal inconsistencies in the applicant's evidence rather than the file note. The court also noted that section 424A requires the Tribunal to consider the information in advance of its ultimate decision and that it is not the role of the Court to substitute its consideration for the consideration to be undertaken by the Tribunal.
Given the court's findings, the application was dismissed, and the decision of the Minister for Immigration to affirm the RRT's decision was upheld. The court concluded that the RRT had not breached section 424A by failing to consider and disclose the file note, as the RRT had not considered the file note to be the reason for affirming the decision. The court's decision reinforces the importance of the Tribunal's consideration of potentially adverse information in accordance with section 424A of the Act.
The court examined the obligation under section 424A, which requires the Tribunal to consider whether certain information would be the reason or part of the reason for affirming the decision under review. The court found that the obligation under section 424A depends on the RRT's consideration or opinion that certain information would be the reason for affirming the decision. The court held that there was no evidence or necessary inference that the RRT had considered the file note to be the reason for affirming the decision. The RRT's reasons indicated that the decision was based on internal inconsistencies in the applicant's evidence rather than the file note. The court also noted that section 424A requires the Tribunal to consider the information in advance of its ultimate decision and that it is not the role of the Court to substitute its consideration for the consideration to be undertaken by the Tribunal.
Given the court's findings, the application was dismissed, and the decision of the Minister for Immigration to affirm the RRT's decision was upheld. The court concluded that the RRT had not breached section 424A by failing to consider and disclose the file note, as the RRT had not considered the file note to be the reason for affirming the decision. The court's decision reinforces the importance of the Tribunal's consideration of potentially adverse information in accordance with section 424A of the Act.
Orders
Orders of the court
1.
The application be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
As the High Court stated at [24] – [26] in relation to s.424A of the Act:As a Full Court of the Federal Court of Australia (Dowsett, Bennett and Edmonds JJ) pointed out correctly, shortly after SZBYR, in SZKLG v Minister for Immigration and Citizenship, s424A depends on the RRTs “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. Here, there was no evidence or necessary inference that the RRT had “considered” or had any opinion about the file note.As observed equally correctly by Heerey J in MZXBQ v Minister for Immigration and Citizenship, s424A speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review. The RRT’s reasons show that what counted against the [applicant] were internal inconsistencies in his evidence. The RRT disbelieved the [applicant’s] evidence that he was a practitioner of Falun Gong because of the inadequacy of his testimony in recollecting matters the RRT would have expected him to recall, such as the content of lectures given to him by his mentor or details of the practice of Falun Gong. It was clear from the reasons of the RRT that adverse credibility findings arose from matters which were not subject to any obligation under s424A. The only inference available was that the RRT did not consider the second sentence of the file note to be the reason or part of the reason for affirming the decision. In these circumstances the [visa applicant] cannot sustain the submission that the attitude of the RRT as evidenced in its reasons showed that the RRT regarded the second sentence of the file note as materially adverse to him. (emphasis added, footnotes excluded) SZLFX has been followed in the Federal Court in decisions on appeal from this court (see for example SZJBD v Minister for Immigration and Citizenship and Another (2009) 179 FCR 109; [2009] FCAFC 106 at [99]). Relevantly, in SZNBE v Minister for Immigration and Citizenship and Another (2009) 112 ALD 114; [2009] FCA 1198 McKerracher J considered circumstances in which the Tribunal received information through a written statement in the Department’s file from a third party (a travel agent reporting on the circumstances in which a protection visa applicant obtained a visa). The applicant in SZNBE contended that this information was potentially adverse and clearly capable of undermining the applicant’s claims and had to be put to the applicant under s.424A of the Act. The Tribunal in SZNBE had summarised this information in its reasons but had not used it adversely in its findings and reasons. Again, as in this case, the Tribunal had not expressly disavowed reliance on the information in question (cf SZLPJ at [13] – [16]). McKerracher J canvassed authorities prior to SZLFX in finding (at [32] – [33]) that consistent with SZBYR at [17] the obligation under s.424A(1) (and the same may be said for s.359A(1)) “turns on the Tribunal reaching a preliminary view of some sort” because the language of the section “emphasises the need for the Tribunal to consider that the impugned information would be the reason or part of the reason for affirming a decision under review”. His Honour continued at [33] – [35] that (as stated in SZKLG v Minister for Immigration and Citizenship and Another (2007) 164 FCR 578; [2007] FCAFC 198 the test:…is not based upon whether the material in question suggests a particular decision. The test depends upon the Tribunal's "consideration"’.This process then requires the Tribunal to consider the question in advance of its ultimate decision, considering the information upon which it would act should it decide to affirm the relevant decision. It is not the role of the Court to substitute its consideration for the consideration to be undertaken by the Tribunal. The obligation of the Tribunal is an obligation which occurs at a point in time anterior to the final decision process.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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