M70 of 2006 v Minister for Immigration
[2007] FMCA 1241
•31 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M70 of 2006 v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1241 |
| MIGRATION – Protection visa – whether jurisdictional error – whether duty to seek further information or medical opinion – where mental instability of Applicant raised – s.424 obligations. |
| Migration Act 1958, ss.424, 424A, 425 |
| Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Naff v Minister for Immigration and Multicultural and Indigenous Affairs (2004) CLR 1 Nais & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 (14 June 2004) Win v Minister for Immigration (2001) 105 FCR 212 SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 |
| Applicant: | APPLICANT M70 OF 2006 |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1049 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 23 July 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 31 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Cheung |
| Solicitors for the Applicant: | Chandra Weerakoon |
| Counsel for the First Respondent: | Ms E. Latif |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The Application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1049 of 2006
| APPLICANT M70 OF 2006 |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 18 April 2006. In its decision the Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant to the Applicant a protection visa.
The background facts are not in contention. The Applicant is a 36‑year‑old citizen of Sri Lanka who arrived in Australia on a temporary visitor's visa on 22 September 2005. On 4 November 2005 he lodged the application for a protection visa. A delegate of the First Respondent refused the grant of the visa application on 1 December 2005 and the Applicant then applied to the Tribunal for a review of that decision.
On 26 May 2006 the Applicant made an application to the High Court of Australia for an order to show cause. That application has been remitted to this court by consent.
The Applicant's claims
The Applicant's claims have been accurately summarised in the First Respondent's contentions as follows:
“10.The applicant claimed to have a well-founded fear of persecution by reason of his political opinion. Namely, his affiliation with the United National Party (‘the UNP’).
11.The claims raised by the applicant may be summarised as follows:
a.The applicant was an elected representative of the National Employees Trade Union (‘the JSS’), a union affiliated with the UNP. CB 15.
b.The applicant worked to maintain employees’ membership with the JSS, which exposed him to clashes with a rival political party; namely, the JVP: CB 15.
c.The applicant’s grandfather, father and cousins were active members of the UNP. Two of his cousins were killed for their political activities: CB 15-16.
d.The applicant was also a UNP activist: CB 15. He became a target for JVP organisations within his electorate: CB 16. He claimed to have been harassed and threatened by his political opponents and to have been forced to transfer his location of work from Teldeniya to another depot by reason of his political activities in May 2004: CB 16. These claims included a claim to have been targeted by a Provincial Council Member, Lal Attanayake.”
At the Tribunal hearing the Applicant also filed documents in support of the claim to have been persecuted by his political opponents. He elaborated on the claim to have been a UNP activist at the hearing before the Tribunal. He also elaborated on the claims of persecution and claimed to have suffered death threats.
He claimed that the reason for his transfer of work locations was his "good work in getting people to join the JSS". There is no dispute that, after the hearing, the Tribunal forwarded a letter to the Applicant's advisers seeking comment pursuant to s.424A of the Migration Act 1958 (the Migration Act). The letter dated 28 February 2006 (Court Book pp.108-109) included the following:-
“The Tribunal would like you to note the following issues relating to the documents which you submitted at the hearing:
· The 5 letters from the UNP are apparently a response to a complaint which you made on 6 September 2004. Could you please indicate why this complaint was not mentioned in your original claims to the Department and why it was not mentioned at the Tribunal hearing. …
· Regarding the three letters dealing with your employment, could you please indicate how you are able to obtain a letter not addressed to you but to your Manager, dated 9 June 2004, indicating that there was not room for you at the Teldeniya depot.
The Tribunal would also like you to comment on a number of discrepancies between your original submission and the evidence provided at the hearing regarding your role in the UNP as opposed to your role in the Union (JSS); the fact that you mentioned receiving death threats in 2004 in Taldeniya for the first time at the hearing, no mention of this was made in your submission.
In addition the Tribunal would like you to comment on the reason for delaying your departure from Sri Lanka until one month after the grant of the Australian visa, given your stated fear of persecution.
…”
The Applicant's then advisers responded to the s.424A letter by a letter dated 14 March 2006 (Court Book pp.111-112). It is relevant for present purposes to note that in that correspondence, in response to the issues raised by the Tribunal, the Applicant asserts that letters referred to in the Tribunal's request for response, pursuant to s.424A, were not known to the Applicant "until such time as his wife found them in a file (which) belonged to the Applicant ...".
The response from the Applicant's agent further contains the following:-
“… He further states that leaving his wife, child and parents, and his much‑loved profession made him a mentally-weak person …
…
The applicant thinks that certain incidents and occasions that were mentioned at the tribunal hearing were omitted in his original statement as he was not in a stable mental condition.”
The Tribunal's decision
In its decision under the heading "Findings and Reasons" the Tribunal relevantly states the following:-
“The essence of the applicant’s claims is that he will be persecuted on return by members of an opposing political party (the JVP) because he was successful in persuading some of its members to join a union affiliated with the applicant’s political party (the UNP).
The Tribunal accepts that the applicant is a member of the UNP; it accepts that his family were traditionally members of the UNP. The Tribunal accepts that he was involved in the JSS Union and that he was transferred to another depot. The Tribunal does not accept that the transfer to another depot was effected as a punishment for his criminal success in enticing members of the JVP and PA to join the union which he was working for and which is affiliated to the UNP. The Tribunal, having considered the response by the applicant to the s424A letter, is not satisfied that the contents of the letters from the UNP and the whole issue of the complaint to the UNP correspond to the truth. The Tribunal does not accept that the applicant would not have mentioned these issues in his original claims had they really occurred and moreover, would not have mentioned them at the hearing, having handed the correspondence to the Tribunal at that time. The Tribunal has considered the adviser’s statement that the applicant’s mental state was not conducive to his revealing these elements or at least contributed to his forgetting to include these details. The Tribunal notes that no medical evidence has been provided to the Tribunal in relation to the mental health of the applicant, nor was this aspect even mentioned before or during the Tribunal hearing.
The applicant has not given an explanation, regarding the delaying of his departure from Sri Lanka for one month following his being granted an Australian visa, which is consistent with his claimed fear of persecution and the claimed threats being made. The Tribunal is not satisfied that, had the applicant being subjected to threats as he claims, he would have waited a month to leave Sri Lanka. Consequently the Tribunal does not accept that the applicant was threatened by presumed political opponents for the claimed reason that he was taking members away from the respective parties.”
In its findings the Tribunal made further significant adverse findings in relation to specific acts of persecution asserted by the Applicant. The Tribunal found that the claim by the Applicant that he had been threatened in 2004 was not credible by reason of the Applicant raising the claim for the first time at the hearing.
It further found that the claim by the Applicant that the JVP sought to recruit him did not amount to serious harm and lacked credibility. Significantly, the Tribunal found that there was sufficient detail to establish a finding in the Applicant's favour in relation to what were claimed to be "unknown cause", still asking for the Applicant in Sri Lanka after his departure (Court Book p.131).
Specifically, the Tribunal then made the following finding:-
“… There is no indication of who these people are, other than they are not known to the applicant's wife and no indication of the reason they seek the applicant.
Given these circumstances, the Tribunal finds that the applicant may have been, on occasions, harassed because of his political views and activities as a Union representative and a UNP member, it finds that these instances of harassment do not amount to Convention prosecution and it further finds that the chance that the applicant would be persecuted for reasons of his political opinion in the reasonably foreseeable future, were he to return to Sri Lanka, would be remote or insubstantial. It finds that his fear of persecution for any Convention reason is not well‑founded.”
(Court Book p.130-131)
Grounds of the application
The Applicant relied upon an Amended Application filed 4 June 2007, together with contentions of fact and law filed 12 June 2007. At the hearing it became evident that there were essentially three issues arising out of the contentions of fact and law which were not particularised or indeed referred to in any detail in the Amended Application.
Nevertheless, in the absence of objection, the court was prepared to entertain the grounds now sought to be relied upon which are briefly summarised as follows:-
·a claim breach of s.424 of the Migration Act by the Tribunal, by proceeding to make a decision after receiving the Applicant's response dated 14 March 2006,
·whether the Tribunal acted in breach of s.425 by proceeding to make its decision after receiving the letter dated 14 March 2006,
·whether the Tribunal ought to have further investigated the Applicant's claims, including a reference to a mental condition and whether it's failure to do so constituted a breach of s.424A of the Migration Act.
Submissions
Applicant's submissions
It perhaps should be noted at the outset that the Applicant had sought to rely upon an affidavit sworn by him on 4 June 2007. That affidavit however appears to effectively seek to make submissions in support of the application but otherwise did not contain material relevant to the application or material deemed appropriate for the Court to receive in an application of this kind. Hence a preliminary ruling was made for those reasons, refusing permission to the Applicant to rely upon the affidavit.
Nevertheless, the Applicant then sought to rely upon the contentions and, in particular, sought to argue that the Tribunal had breached s.424 of the Migration Act. It was argued that the Tribunal ignored the most recent correspondence from the Applicant's advisers, namely, the letter of 14 March 2006 and it was submitted that the Tribunal should have canvassed the issues and regarded that material as material justifying what is described as a de novo forum of merits review.
At the very least it was submitted that if the Tribunal was in doubt or not satisfied about the material then it should have, as required by law pursuant to the requirements of s.424, requested further explanation, "elucidation and clarification", in relation to the material. It was argued the Applicant had been denied procedural fairness and natural justice, and that this constituted jurisdictional error (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323).
It was further argued at the hearing, though not set out in detail in the contentions, that the failure of the Tribunal to request further details concerning the alleged mental state of the Applicant constitutes contravention of s.424A of the Migration Act. The Tribunal, it was argued, ought to have sought from the Applicant, by way of a further s.424A letter, further information arising from the claim, set out earlier in this judgment, that the Applicant was "not in a stable mental condition".
As I understood the submissions, it was argued that this is an additional obligation over and above the obligation imposed upon the Tribunal pursuant to s.424(1) of the Migration Act, namely, "to get any information that it considers relevant". It was further argued on behalf of the Applicant that the Tribunal had otherwise breached s.425(1) of the Migration Act. It was argued that the hearing was an incomplete hearing and the Tribunal had made its decision on the basis of an incomplete hearing which led to a denial of procedural fairness towards the Applicant (see Naff v Minister for Immigration and Multicultural and Indigenous Affairs (2004) CLR 1).
It was argued, having regard to that authority, that the Tribunal had a statutory duty to invite the Applicant to give evidence and present arguments and that that duty entailed an obligation to consider the arguments presented and to afford the Applicant procedural fairness. In the present case, it was submitted, the Tribunal failed to consider what was described as "new documentation at hand" and to then exercise merits review with those new facts at hand.
Some reliance was placed upon the decision of Nais & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171. The Applicant also sought to rely upon the dissenting decision of Kirby J in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 (14 June 2004).
In particular it was argued that, in the present case, the Tribunal should have had regard to the claimed difficulties the Applicant had in presenting material due to his mental condition. It was further argued at the hearing that having regard to the issue of mental health of the Applicant the Tribunal should have requested better particulars in relation to that issue rather than simply stating that "no medical evidence has been provided".
The issue having been raised by the Applicant's adviser meant, according to the Applicant's submissions, that the Tribunal should have complied with the requirements of s.424 of the Migration Act and requested a further explanation.
First Respondent's submissions
The First Respondent submitted that there was no error of law arising out of any claim of breach of ss.424, 424A or 425 of the Migration Act. It was further submitted that the Tribunal was not under any obligation to pursue, by way of any further inquiry, the claim in relation to the Applicant's mental condition. Specifically, it was argued that there was no breach of s.424 of the Migration Act.
That section, it was submitted, is primarily an enabling provision and is a matter which is "clearly discretionary". It was argued the Tribunal does not have a duty to investigate the Applicant's claims. Counsel for the First Respondent referred to the decision of Win v Minister for Immigration (2001) 105 FCR 212 where the court relevantly states the following:-
“15.Neither assumption would seem to be correct. Section 424(1) is primarily an enabling provision. It empowers the RRT ‘to get any information that it considers relevant’ (although the subsection also requires the RRT to have regard to the information so obtained). Section 424(1) appears to be directed to enabling the RRT to take the initiative in obtaining material it considers relevant. It does not exhaust the circumstances in which the RRT can receive and consider material relevant to the issues it has to decide. In particular, s 424(1) has nothing to say about a case like the present, where the RRT simply receives unsolicited material from another source such as the Department or a third party informant. Whether the RRT can take such material into account does not depend on the operation of s 424(1), but on the legislative scheme as a whole: see, for example, ss 414(1); 415(1), (2); 420(2).”
Reference was also made to a decision in the Federal Court in SZIRO v Minister for Immigration and Citizenship [2007] FCA 260 (SZIRO) where the court relevantly states the following:-
“11 The Tribunal did complete the review on the information available. It is clear that the reason for the decision was the inadequacy of the information before it in the context of the appellant’s failure to attend the hearing. This finding was open to the Tribunal. As was said by the Full Court in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15], there must be ‘a refusal if the decision-maker is not affirmatively satisfied that the criteria for the grant of visa in question had been satisfied.’”
It will be noted from the reference to the court's decision in SZIRO that the court in that instance referred to a decision of the Full Court in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225. The First Respondent submitted therefore that it was not open to the Tribunal to engage s.424 after receipt of the letter dated 14 March 2006 and its failure to do so does not constitute jurisdictional error.
It was otherwise submitted that in any event in the alternative the Applicant's contentions impermissibly seek to challenge the merits of the decision. It was further submitted that there had been no breach of s.425 as that directs the Tribunal to invite an Applicant to appear before it to give evidence and present arguments "relating to the issues arising in relation to a decision under review".
It was noted that in the present case the hearing occurred on 27 February 2006 and that the Tribunal had therefore discharged its obligations pursuant to s.425 of the Migration Act. It was further argued that after the hearing the Tribunal provided a notice pursuant to s.424A of the Migration Act directing the Applicant's attention to the credibility concerns of the Tribunal. Those issues had been addressed at the hearing and it was submitted that the Tribunal was not then obliged to invite the Applicant to a further hearing in relation to those issues.
It was further submitted that the receipt of any further information, including the claim of the mental condition, after the hearing does not thereby require the Tribunal to convene a further hearing. It was argued that the Tribunal was entitled to determine the manner in which a particular Applicant should be invited to make any relevant comments. It was otherwise submitted that the Tribunal had discharged its statutory obligations by correctly articulating the legal framework within which the application fell for consideration, and had given proper consideration to the Applicant's evidence and arrived at a conclusion based on an assessment of the evidence free of error.
Reasoning
In my view it is clear in the present application that the Tribunal has discharged its statutory obligations by providing a genuine invitation to the Applicant to attend a hearing. The hearing was conducted and the issues were raised appropriately. It is important to note that the issues raised at the Tribunal hearing then gave rise to concerns by the Tribunal sufficient for it to appropriately forward to the Applicant a letter pursuant to s.424A of the Migration Act.
That letter in my view was clearly appropriate. The mere fact that the Tribunal then received a response dated 14 March 2006 does not of itself provide any proper basis upon which the Tribunal should then produce a further letter pursuant to s.424A of the Migration Act, nor indeed reconvene a further hearing. At best the letter, which in part has been set out earlier in this judgment, does no more than refer to what may be described as the Applicant being a "mentally-weak person" or a person who was "not in a stable mental condition".
The Tribunal was correct in its decision when it stated that there was no medical evidence provided by the Applicant in relation to the alleged condition. So much is evident from the extract from the Tribunal's findings set out earlier in this judgment where the Tribunal correctly, and in a manner free of jurisdictional error, has concluded that:-
“… no medical evidence has been provided to the Tribunal in relation to the mental health of the applicant, nor was this aspect even mentioned before or during the Tribunal hearing.”
In my view the Tribunal was entitled to make the findings reasonably open to it concerning the lack of medical evidence. When a mere assertion is made in correspondence of this kind, suggesting that the Applicant may not have been in a stable mental condition and that this may be an explanation for the omission of relevant claims, that does not then impose upon the Tribunal an obligation to further investigate the matter by way of either a further s.424A letter nor indeed to reconvene the hearing to explore that matter further.
The obligation on the part of the Applicant and his advisers is to provide some further medical evidence, having been given the opportunity to do so in response to the s.424A letter. The failure of the Applicant to provide that further information does not then impose a separate obligation upon the Tribunal to make further inquiries.
It is correct to conclude, as submitted by the First Respondent, that the obligations pursuant to s.424 of the Migration Act are discretionary. In my view the Tribunal has not made any error in the exercise of its discretion when considering the Applicant's claim. Further, in my view the response to the s.424A letter, containing as it does the somewhat vague reference to the Applicant's "unstable mental condition", could not properly be construed as "information" for the purpose of s.424A and therefore the Tribunal was not under any statutory obligation to provide a further s.424A letter.
As indicated the general obligation, arising under s.424, in my view has been discharged in a manner free of error. I further conclude that there has likewise been no breach of s.425 of the Migration Act. The Tribunal has properly conducted a hearing which was in my view complete and the Tribunal then appropriately after the hearing was able to seek comment from the Applicant in relation to matters of concern.
The mere fact that the response received may have made a vague reference to a claimed mental condition of the Applicant does not of itself render invalid the Tribunal's hearing nor does it lead to a conclusion that the hearing was incomplete. In my view the Tribunal has properly discharged its statutory duty including the duty imposed upon it pursuant to s.425 of the Migration Act.
I should further add, for the sake of completeness, that in my view having regard to the vague nature of the assertion of a "mental condition" I can see no obligation upon the Tribunal to further investigate that matter. It follows for the reasons given that, in my view, the application should be dismissed with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 31 July 2007
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