Mohamed v Minister for Immigration
[2008] FMCA 240
•17 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOHAMED v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 240 |
| MIGRATION – Review of decision of Migration Review Tribunal – show cause hearing – whether arguable case – Student (Temporary) (Class TU) visa application – whether genuine applicant for an entry and stay as a student – clause 560.224 of Schedule 2 of the Regulations – financial ability of applicant to undertake course of study – applicant’s comprehension of English for purposes of undertaking course – findings of fact not the function of judicial review – whether Tribunal acted in bad faith. |
| Migration Act 1958 (Cth), ss.359A, 417, 476 |
| Qu v Minister for Immigration and Multicultural Affairs [2001] FCA 1299 Abebe v Commonwealth (1998) 197 CLR 510
SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 |
| Applicant: | OSAMA ABD ELWANIS SDIK MOHAMED |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | |
| File number: | SYG |
| Judgment of: | |
| Hearing date: | 7 February 2008 |
| Date of last submission: | 7 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | |
REPRESENTATION
| Applicant appeared in person |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The application to show cause filed on 14 August 2007 is dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001.
The Applicant pay the First Respondent’s costs fixed in the sum of $4,400 payable within five (5) months of the date of these Orders.
ORDERS
The application to show cause filed on [date] 16 July 2007 is dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrate Court Rules 2001..Orders Style
(a)Orders-abc Style
(i)Orders-123 Style
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2507 of 2007
| OSAMA ABD ELWANIS SDIK MOHAMED |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
SYG 2848[ ] 2190 of 2007
| |
Applicant
And
| |
First Respondent
| |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to Rule 44.05 of the Federal Magistrate’s Court Rules 2001 seeking an order to show cause why a remedy should not be granted under section 476 of the Migration Act 1958 (Cth) as amended (the Act), in respect of a decision of the Migration Review Tribunal (the Tribunal) signed on 12 July 2007 and notified to the applicant by letter dated 20 July 2007 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Student (Temporary) (Class TU) visa (the visa).
Background
The applicant was born on 24 September 1973 and was aged 34 years at the time of the Tribunal hearing.
The applicant is a citizen of Egypt who claims to have been born and raised in Egypt.
The applicant arrived in Australia in 24 October 1998 on a Subclass 456 Temporary Business (Short Stay) visa. This visa ceased on 24 January 1999. On 9 February 1999, the visa applicant was granted a Subclass 686 Tourist visa, which was subject to condition 8101 (‘no work’). This visa ceased on 24 April 1999. On 23 April 1999, the applicant applied for a Subclass 560 student visa. The delegate refused to grant the visa on 5 May 2000. The applicant sought review of the delegate’s decision by the Tribunal.
On 1 June 2000, the applicant applied for a protection visa. In that application, the applicant claimed that he could not return to his home country as he feared harm from the Egyptian government because of his religious practices and his involvement with a particular group. The protection visa was refused on 16 May 2002. The applicant then applied for review by the Refugee Review Tribunal (RRT) who affirmed the protection visa refusal on 28 May 2003. The applicant thereafter made a request to the Minister to intervene under s.417 of the Act and he was assessed as not meeting the guidelines on 26 November 2004. On 20 December 2004, the applicant appealed from the RRT decision to the Federal Court. The matter was finalised in the Federal Court in the Minister’s favour on 23 November 2006.
At the time of the visa application, the applicant advised that he intended to undertake a Diploma of Information Technology (IT) at Alpha Beta Colleges.
The delegate refused the visa, finding, inter alia, that the applicant was not a genuine student and did not meet clause 560.224 (see The relevant law).
The relevant law
The Subclass 560 student visa was omitted from the Regulations on
1 July 2001. However the changes were not retrospective, hence the Tribunal applied the law and the criteria for a Subclass 560 visa in force at the time that the applicant made the visa application on
23 April 1999.The main issue before the Tribunal was whether the applicant was a genuine applicant for entry and stay as a student. This requirement, contained in clause 560.224 of Schedule 2 to the Regulations, must be satisfied as at the time of decision. So far as is relevant, subclauses (1), (2) and (3) of cl.560.224 provide that:
(1) … the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard:
(a) to the financial ability of the applicant to undertake the course without contravening any condition of the visa relating to work; and
(b) subject to subclauses (2) and (3), to the applicant's comprehension of English for the purposes of the course; and
(c) to whether the applicant intends to comply with any conditions subject to which the visa is granted; and
(d) to any other relevant matter.
(2) If the Minister has regard to the applicant's comprehension of English, the Minister may require the applicant to undertake an English language test that is conducted by an agency other than Immigration.
(3) If the applicant is required to undertake a test and does not undertake it, or does not pass it, the Minister is not to grant the visa.
In Qu v Minister for Immigration and Multicultural Affairs [2001] FCA 1299, Gray J expressed the decision-making process required by subclause 560.224(1) in the following terms:
…[subclass 560.224(1)] contains a single criterion, the genuineness of the visa applicant for entry and stay as a student. The matters referred to in its four paragraphs are matters to which a decision-maker is required to have regard, using a balancing process, in reaching a conclusion on that single criterion. With the exception of comprehension of English in circumstances where a test has been required and not undertaken or failed, none of the matters in those paragraphs can be fatal to a visa applicant's case without a consideration of the other factors.
The Tribunal proceedings
On 6 February 2007, the Tribunal sent the applicant a letter pursuant to s.359A of the Act inviting him to comment on information that may be a reason or part of a reason for affirming the decision under review.
The applicant’s migration agent provided a response advising that the applicant’s English was not good in 1999 but that he had since undertaken self-study which had equipped him with the skills necessary to undertake his nominated course. The migration agent also advised that the applicant had enrolled in 10 weeks of English study prior to the commencement of his IT course, and provided a number of documents to the Tribunal, including a statutory declaration from the applicant dated 21 March.
On 9 May 2007 the applicant appeared before the Tribunal to give evidence and present arguments (summarised by the Tribunal at Court Book (CB) 122-123).
On 25 May 2007 the Tribunal sent a second s.359A letter to the applicant and the applicant’s representative provided a response, with further documentation.
The Tribunal’s findings and reasons (CB 123–127)
The Tribunal found that:
·it was not satisfied that the applicant had the financial ability to undertake his course without contravening visa conditions relating to work;
·it was not satisfied that the applicant had sufficient comprehension of English for the purpose of an IT course;
·it was not satisfied that the applicant intended to comply with condition 8105 to which his student visa would be subject;
·the applicant’s immigration history and previous protection visa application indicated that he may not return to his home country after his proposed course of study;
·the applicant was using the study program as a means of extending his stay in Australia;
·the applicant has undertaken little effort to learn English in order to prepare himself for study since he has been in Australia.
Having considered the elements of clause 560.224 and all the relevant evidence, the Tribunal was not satisfied that the applicant was a genuine applicant for entry and stay as a student in Australia and therefore that he did not meet the requirements of clause 560.224. For these reasons, the Tribunal affirmed the decision of the delegate that the applicant was not entitled to the grant of a Student (Temporary) (Class TU) visa.
The proceedings before this Court
The applicant filed the application in this Court on 14 August 2007, setting out 2 grounds for review of the Tribunal’s decision.
The applicant appeared before the Court on 7 February 2008 assisted by an Arabic interpreter. Ms Baggett appeared for the first respondent.
The grounds of application
The grounds of the application are:
(1)Financial ability was presented to the MRT and clearly indicated what the funds will cover however the MRT saw it was insufficient evidence.
(2)The MRT found that the English language ability was limited for the purpose of the prospective studies. This finding was based on a statement made by the applicant when he first arrived in Australia many years ago. The claimed his English language skills have improved significantly and also produced evidence of undertaking a formal English language course prior to vocational course start.
Ground 1 of the application
At the hearing before this Court, the applicant submitted in relation to ground 1 that:
I've got the financial guarantee from my uncle from Egypt and that financial guarantee will cover me up to seven years here in Australia. I've got also a second financial guarantee made by another person here in Australia. He was born here…
…I've got a strong financial guarantee from my uncle. I mean, I can be provided with a lot of money and if they ask me for more I even able to get more money. Also I've got another financial support from a friend of mine and he's ready to support me financially in order to cover all the expenses for all the period of my studies.
The Tribunal made clear findings in relation to the applicant's financial ability to undertake his course of study without contravening the visa conditions relating to work (in particular, condition 8105 (paragraph 560.224(1)(c)). Its findings were based upon a careful consideration of the two s.359A letters sent to the applicant; his responses to both; and the applicant's evidence at the Tribunal hearing, (the exchange of questions and answers being summarised at CB 122 – 123).
A fair reading of the Tribunal's decision discloses that it understood the claims made by the applicant as to his financial ability, explored the issues relating to those claims with him at the hearing; gave the applicant in both the s.359A letters, in particular in the second one, its concerns regarding “information” that may be part of the reason or reasons for affirming the delegate’s decision under review; made findings based on the evidence and material before it; and properly applied the relevant law to the facts.
I consider that its findings of fact were open to it on the evidence and material before it. The applicant is, in effect, seeking that the Court engage in impermissible merits review. It is not the function of this Court to engage in fact finding concerning the merits of an applicant’s case: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at [558]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. Furthermore, there is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137].
Accordingly, Ground 1 is rejected.
Ground 2 of the application
At the hearing, the applicant submitted that he has been in Australia for nine years; that “they made me lose nine years in vain”; and that his English “is very reasonable and very good and enough to complete studies here”; and that:
In the suburb where I live there are about 70 people from Egypt. Maybe I am the best one who speaks English among them and I have the evidence that my English is much better than theirs. I can even provide you with names and most of them are studying – have been studying for the last two years or three years.
As with ground 1 above, ground 2 seeks that the Court engage in merits review of the Tribunal's finding that the applicant did not have sufficient comprehension of English for the purposes of undertaking an IT course.
Equally, from a fair reading of the Tribunal decision, I am satisfied that the Tribunal gave proper consideration to this issue both from the s.359A letters and responses; from the applicant's oral evidence at the Tribunal hearing; and that it made findings based on the material and evidence before it and properly applied the relevant law to those facts, before reaching the conclusion that the applicant had sufficient English proficiency for the proposed English course of study, but not for the IT course for which the student visa had been lodged. This differentiation of finding between the English and IT courses, in itself, demonstrates the careful consideration given to this issue by the Tribunal.
The Tribunal also considered the fact that the applicant required an interpreter throughout the hearing and that, on his own evidence, he had only undertaken five weeks of informal tuition in English at a library since 1995.
I consider that the Tribunal's findings were open to it on all the material and evidence before it and that it performed the task required of it according to law.
Accordingly, Ground 2 is rejected.
Applicant's oral submissions
Whether the Tribunal acted in bad faith
Before this Court, the applicant raised the further issue that the Tribunal acted in bad faith on the basis of its pre-judgment of his application:
There is a lack of goodwill for the part of the Migration Review Tribunal because when they asked for the guarantee from my uncle and from other person they had already made their decision or they rejected my application before even I replied to them. That's a sign of bad intention or lack of goodwill (Transcript, 7/2/08, p.3-4)
The applicant further asserted that:
[the Tribunal member] wanted to reject my application by any means. She made me confused and I couldn’t really express myself properly… (Transcript, 7/2/08, p.7)
The applicant has not provided proper particulars of how he alleges the Tribunal did not act in good faith, rather he has made the general assertion quoted above, and further that the Tribunal member was “very grumpy and she wasn’t tolerant and not flexible at all” (Transcript 7/2/08, p.7). The applicant, however, has not put the transcript of the evidence of the Tribunal hearing before the Court.
The applicant further asserted in this regard that:
The issue of good faith, I mean, how come can they know that I am not serious about my willingness to start my studies. They don't really live inside of me. How come can they decide only from the external appearance? How can they know my intentions? Last time I was asked about many issues…
…But there is the problem of the good faith. Last time I was sent a letter before even I provide them with the guarantee evidence and I was told – all the applications are rejected – the applications are discussed in this court are rejected in general no matter what. (Transcript, 7/2/08, p.7 – 8)
It is well-settled that any allegation of bias must be “distinctly made and clearly proved”: SZHPD v Minister for Immigration & Citizenship [2007] FCA 157 at [22]; citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, [69]. This has not been done in the present case.
I also note the observations by von Doussa J in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.” His Honour further relevantly observed at [38]:
The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.
In order to establish bias or bad faith the applicant would need to demonstrate that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [56-59]. Again, this has not been demonstrated by the applicant. There is nothing disclosed on the face of the Tribunal decision record to support any claim of actual bias on its part.
I am further satisfied that there is nothing on the face of the decision record to show that a “hypothetical fair minded lay observer who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”, might reasonably apprehend that the Tribunal did not bring an impartial mind to the task of the decision making process: Re Refugee Review Tribunal; ex parte H & Anor (2001) 179 ALR 425 at [28].
I am satisfied therefore that no allegation of bias, whether actual or apprehended, can be demonstrated on the face of the Tribunal decision record in this case. I therefore reject any claim by the applicant that the Tribunal prejudged the case or made its decision prior to the hearing.
Indeed, far from demonstrating bad faith or pre-judgment on the Tribunal's part, the sending of two s.359A letters to the applicant inviting his response, and the balancing process (referred to by Gray J in Qu) undertaken by the Tribunal of the “positive factors” (which support the view that the applicant is a genuine student) and the “negative factors” before reaching its conclusion, is indicative of an open mind, of its not having pre-judged the case, and its having based its decision on an objective appraisal of the relevant factors before it (see Conclusions (CB 126)).
Conclusion
The Court finds that the application does not raise an arguable case for the relief claimed.
Pursuant to Rule 44.12(1)(a) of the Federal Magistrate’s Court Rules 2001, the application before this Court is dismissed
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 17 March 2008
|
|
Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 ……Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 .Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, (2003)195 ALR 24 referred to
SZBYR v Minister for Immigration and Citizenship [2007] HCAVAF v Minister for Immigration and Multicultural and Indigenous Affairs [CITATION TO BE INSERTED] referred to
FUNCTUS OFFICIO [CKX]The relevant law applied by the second TribunalThe Tribunal's jurisdiction arises under s.411 of the Act if a valid application for review of an RRT-reviewable decision is made under s.412 of the Act. Section 411 sets out the various decisions that can be reviewed by the Tribunal, including a Protection (Class XA) visa. Section 412(1)(b) requires an application for review to be given to the Tribunal within the prescribed time period. The prescribed time periods are set out in r.4.31 of the Migration Regulations 1994. Where the applicant is not in immigration detention, the application for review must be lodged at a registry of the Tribunal not later than 28 days after the day on which notice of the delegate's decision is received: s.412(1)(b) and r.4.31(2)(b). Thus, notification of the decision provides the reference point for the commencement of the limitation period provided for in s.412(1)(b) and prescribed by r.4.31(2)(b). There is no provision for an extension of time.Where the Tribunal has received a valid application for review of a RRT-reviewable decision and carried out its statutory duty to review the decision under s.414 of the Act, it is precluded from again considering the matter as the Tribunal has no jurisdiction to review a delegate's decision twice: Jayasinghe v MIEA (1997) 76 FCR 301, 145 ALR 532 and SZIIV v MIMA [2006] FMA 322.The second Tribunal’s findings and reasonsThe second Tribunal considered the applicant’s submissions in his letter of response, but did not accept that they provided any basis for accepting the application before it. The Tribunal noted that the applicant unsuccessfully sought judicial review of the Tribunal’s earlier decision in SZCKX v MIMA & Anor [2005] FMCA 1810; SZCKX v MIMA [2006] FCA 528; and SZCKX v MIMA & Anor [2006] HCATrans 707. In conclusion, the second Tribunal held that the applicant lodged a previous application with the Tribunal for review of the delegate's decision on 24 March 2003. the Tribunal accepted that application, and conducted a review, the Tribunal has therefore already discharged its functions under the Act to review the delegate’s decision; and thereforeit no longer had jurisdiction in relation to that decision.The proceedings before this CourtThe applicant filed the application in this Court on 29 March 2007 and the amended application on 13 June 2007 seeking review of the second Tribunal decision.The applicant appeared in person with the assistance of an interpreter. Ms Buchanan appeared for the first respondent.Grounds of application I note that, to the extent that any of the applicant’s grounds of review go beyond the issue of whether the second Tribunal erred in finding that it had no jurisdiction to entertain the applicant’s application before it, they are not relevant to the task before this Court.The relevant lawIn Jayasinghe v MIEA (1997) 145 ALR 532, Goldberg J, after a detailed examination of the case law and relevant statutory provisions and applying the doctrine of functus officio whereby once the statutory function is performed there is no further function or act for the person authorised under the statute to perform, held that the Tribunal does not have the power to reconsider or reopen a final decision it has made on its review determining the substantive application.In Leung v MIMA (1997) 150 ALR 76, Finkelstein J at 85 referred to Jayasinghe v MIEA and to the decision of Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429, in which French J concluded that there was no power to reconsider an entry permit refusal by a Minister:French J held that the implication of such a [reconsideration] power could generate endless requests for reconsideration and given that the Migration Act 1958 (Cth) contains specific provisions for the review of decisions the implication should not be made. In Jayasinghe Goldberg J came to the same conclusion with regard to the [RRT]……In Singh v MIMA (2001) 183 ALR 531 at [35], Merkel J stated that …the RRT is functus officio upon a valid decision being handed down in accordance with the requirements of the Act. This statement in Singh was adopted by Jacobson J in SZEBS v MIMA [2006] FCA 456 at [9].In MIMA v Bhardway (2002) 209 CLR 597, the High Court recognised that some qualification should be placed on the doctrine of functus officio by its adoption of the reasoning of the Supreme Court of Canada in Chandler v Alberta Association of Architects [1989] 2 SCR 848 at 862, that:…as a general rule, subject to a power to correct a slip or an error of expression, a tribunal cannot revisit its own decision …However, the [Supreme Court of Canada] held that the principle of functus officio should not be strictly applied if the tribunal has failed to discharge its statutory function and "there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation". (Gleeson CJ at [7]) and that: ……In our view, logic and legal principle both direct the conclusion that the approach of the Supreme Court of Canada is correct….a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so… (Gaudron and Gummow JJ at [53]).Application to present proceedingsIn the present context, the first Tribunal decision was a valid and final decision reviewing the delegate’s decision. In this regard, it was the subject of judicial scrutiny by the Federal Magistrates Court (SZCKX v MIMA & Anor [2005] FMCA 1810), the Federal Court (SZCKX v MIMA [2006] FCA 528), and the High Court (SZCKX v MIMA & Anor [2006] HCATrans 707). No jurisdictional error was found. As relevantly observed by Hayne J in SZCKX v MIMA & Anor [2006] HCATrans 707 at [15]:In the Federal Court, Edmonds J concluded that no error of law had been demonstrated in the reasoning of the Federal Magistrates Court and that no jurisdictional error had been committed by the Tribunal. There is no reason to doubt the correctness of those conclusions. Applying the relevant legal principles, I consider that the second Tribunal was correct in finding that it did not have the power to reconsider the delegate’s decision a second time. I accept that the second Tribunal made a valid decision in accordance with the requirements of the Act and thereby discharged its statutory functions under the Act. The second Tribunal was thus functus officio and no longer had jurisdiction in regard to the delegate's decision. I accept the first respondent’s submission on these matters. In these circumstances, the qualification on the doctrine of functus officio, as recognised by the High Court in MIMA vBhardway, does not apply. The first respondent further submits, or in the alternative that, by reason of s.412 of the Act, the applicant’s second application filed with the Tribunal for review of the delegate’s decision was lodged out of time and hence the Tribunal lacked jurisdiction. I do not consider that the Tribunal based its conclusions that it had no jurisdiction upon this point, rather raising the relevant time limits to indicate that the first Tribunal decision was valid in this respect. In any event, given my determination above, it is not necessary to determine the point.
ABUSE OF PROCESS [CKX]The first respondent seeks orders pursuant to Rule 13.10 of the Federal Magistrate’s Court Rules that the application be summarily dismissed as having no reasonable prospects of success, or in the alternative, that the application be dismissed as being frivolous or vexatious and/or an abuse of the process of the court. The first respondent further invites the Court to make orders that no further application for review of the delegate's decision or the first or second Tribunal decision be permitted without leave of the Court.Rule 13.10 of the Federal Magistrates Court Rules provides that the Court may order that a proceedings be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim, orthe proceeding or claim for relief is frivolous or vexatious, orthe proceeding or claim for relief is an abuse of the process of the Court.In Second Life Décor Pty Ltd v Comptroller General of Customs (1994) 53 FCR 78, The Federal Court held (at 85), that:…the claim is an abuse of process because it is brought as a means of obtaining some advantage for which such proceedings are not designed or some collateral advantage beyond what the law offers.In Walton v Gardiner (1993) 112 ALR 289, the High Court, at 298, held that:…proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail …. proceedings before a court should be stayed as an abuse of process if…..their continuance would be unjustifiably vexatious and oppressive for the reason that it sought to litigate anew a case which has already been disposed of by earlier proceedings.Ms Buchanan submits that it can be inferred from the litigation history of this matter that the present application has been bought as a means of obtaining some advantage for which the proceeding is not designed or for some collateral advantage beyond what the law offers, namely, for the purpose of delay to extend the applicant's lawful stay in Australia.I consider that it is open to the Court to draw the inference sought by the first respondent in this regard that the applicant is seeking to use the Court’s process in this case purely for the collateral purpose of extending his stay in Australia. The relevant legal principles, where repeated applications for review of a delegate’s decision are made, are now well-settled and should be well-understood. Given the past chronology of this case, and where the applicant has brought a second wholly unmeritorious application and amended application before this Court, I am satisfied that the present proceedings constitute an abuse of the process of the Court. In these circumstances, I consider that appropriate orders should be put in place to ensure that the Court’s process is not further abused in the future.
PROCEDURAL FAIRNESS S.424A(1); s.425(1) [LBD]Ground of applicationThe sole ground of the application is that:The Tribunal committed jurisdictional errors of law in that it denied the applicant procedural fairnessProcedural fairness principles It is important to note at the outset, that the applicant has not provided any particulars to explain how the Tribunal may have denied him procedural fairness. Further, no evidence by way of the transcript of the Tribunal proceedings has been put before the Court by the applicant on the point. The applicant also did not file any written submissions to elaborate on this ground of review. Nonetheless, given that the applicant was unrepresented in these proceedings, the Court has considered the assertion by the applicant in terms of the statutory requirements of procedural fairness under Part 7 Division 4 of the Act. In this regard, the High Court in SZBEL v Minister for Immigration & Multicultural Affairs [2006] HCA 63, 231 ALR 592, at [26] noted that:It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires.The applicant is not entitled to common law procedural fairness, given s.422B(1) of the Act, which provides that:This Division [Division 4 of Part 7 of the Act] is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters to be dealt with.Section 425 and s.424A set out particular procedural fairness obligations of the Tribunal. The remaining sections of Division 4 set out various additional mandatory and discretionary procedural steps for the Tribunal to take in conducting a hearing, including various ways open to the Tribunal to obtain information. Procedural fairness requirements (whether in statute or at common law) deal with the process of decision-making, not the merits of the decision. As indicated by the High Court in SZBEL: what is required by procedural fairness is a fair hearing, not a fair outcome….. It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision. [at 25] This limitation on the procedural fairness requirements referred to in SZBEL is consistent with case law that it is not part of the function of this Court to engage in fact finding concerning the merits of an applicant’s case: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at [558], NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]. There is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137].Also, as observed by the High Court in SZBEL, procedural fairness does not require the Tribunal to disclose its mental processes in reaching its decision:the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision……Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. [at 48] The invitation to attend the Tribunal hearingThe invitation by the Tribunal to the applicant to appear before the Tribunal, issued on 18 January 2007 (CB 50-51):informed the applicant that the Tribunal was unable to make a decision in his favour on the information before it, and invited him to attend a hearing in order to submit further evidence in support of his claims: s.426(1)provided the applicant with notice of the specified day, time and place at which the applicant was scheduled to appear (21 February 2007): s.425A(1);was sent to the applicant by post to the last address for service nominated by the applicant: s.441A(4)(c)(i);provided a period of notice to the applicant that complied with the prescribed period of 14 days: Regulation 4.35D of the Migration Regulations 1994 (Cth) , andinformed the applicant of the options available to the Tribunal if he failed to appear at the scheduled hearing: s.426A Taking each of these statutory requirements into account, I consider that the Tribunal invitation complied with Part 7 Division 4 of the Act, and elsewhere, regarding the content of the invitation. Section 425(1)Section 425(1) requires the Tribunal to give the applicant the opportunity to attend the Tribunal hearing, to give evidence and present arguments relating to ‘the issues arising in relation to the decision under review’.The requirements of s.425(1) were considered by the High Court in SZBEL, at [33]-[48]. It held that the Tribunal must first identify to the applicant the issues under review. In that context the High Court stated that:The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant [at 35].And further:…..unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision [at 36].The High Court also observed that some issues may be obvious and not require that they be specifically identified:First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor [at 47].
Having identified the issues, the Tribunal must then give the applicant the opportunity to attend a hearing, to give evidence and present arguments relating to the determinative issues. In SZBEL, the High Court concluded that in the case before it:The Tribunal did not accord the appellant procedural fairness. The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review [at 44].Applying the principles in SZBEL to the present case, the Court must consider whether the Tribunal complied with the procedural fairness requirements of s 425(1) by:either itself and/or the delegate, identifying to the applicant the determinative issues under review, andgiving the applicant a sufficient opportunity to give evidence, and to make submissions, about these determinative issues before it reached its conclusions in relation to the decision of the delegate under review.I am satisfied that the applicant would clearly have been put on notice from the delegate’s reasons for decision that one determinative issue for the Tribunal was the credibility of his claims that he was an active member of the Falun Gong movement since 1994 and that, in consequence, he was actively being sought by Chinese authorities, and that he feared persecution. Indeed this issue was the subject of specific evidence at the Tribunal hearing when the applicant appeared to retract his earlier claims before the delegate and told the Tribunal that he had never been a Falun Gong practitioner (CB at 78). The applicant would also clearly have been put on notice (from the two s.424A letters (CB 60-64), and from the summary of the questions asked of, and the evidence given by, the applicant at the hearing (CB 68-74)), that the other determinative issues in this case concerned the assertions by the applicant regarding his issuing of a travel certificate to Mr Wang; whether such a certificate was necessary for Mr Wang to travel to Beijing; his alleged identification and persecution by the PSB in consequence of the actions of Mr Wang; his consequential on-going dealings with the local Chinese police; and whether the applicant came to Australia in the secretive circumstances that he claimed.I am also satisfied, (taking into account the two s.424A letters, with the invitations to comment on information referred to in those letters and/or provide further information, and from the summary in the Tribunal decision record of the questions asked of, and the evidence given by, the applicant at the Tribunal hearing), that the Tribunal gave the applicant a sufficient opportunity to give evidence, and to make submissions, about each of these determinative issues. It is also apparent from the s.424A letters and the decision record that the Tribunal clearly identified to the applicant that his credibility on each of the issues was important in its determination of his claims. It further put to the applicant in the two s.424A letters, the particulars of the material inconsistencies that are referred to in the Tribunal's subsequent findings and reasons (although it would seem that the Tribunal was not required to do so: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18], see post. The applicant chose not to respond to either of the s424A letters. Section 424ASection 424A(1) requires the Tribunal, prior to making its decision:to give an applicant, in the way that the Tribunal considers appropriate, "clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review"to ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review, andto invite the applicant to comment on or respond to it.The provision only applies to "information". This concept covers only evidentiary material or documentation, not the Tribunal's subjective appraisals, thought processes or determinations. As observed by the High Court in SZBYR at [18]:… if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para(a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellant’s evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and 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 identified 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, etc.If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.In regard to the information falling within s.424A(1), I am satisfied that the Tribunal in the two s.424A letters:gave the applicant clear particulars of the information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision that is under review, including information relating to whether it was necessary to obtain a certificate to travel to Beijing and information relating to whether the applicant in fact issued a certificate to Mr Wangclearly stated that the information was relevant to the review, and that it may lead the tribunal to affirm the decision that was under review, andinvited the applicant to comment on or respond to it.In any event, the Tribunal was not required to put to the applicant country information upon which it relied: s.424A(3)(a); nor was it required to put to the applicant information that “the applicant gave for the purpose of the application for review”: s.424A(3)(b). These important statutory exceptions to s.424A(1) are clearly relevant in the present context to the information which the Tribunal was bound to put to the applicant.The applicant did not respond to either letter. As provided under s 424C(2), the Tribunal was entitled to make a decision on the review without taking any further action to obtain the applicant's views on the information.I am therefore satisfied that there has been no breach of s425(1) or s.424A of the Act. Overall, I detect no irregularity or unfairness in the procedure adopted by the Tribunal in its review of the applicant’s case. I consider that the Tribunal accorded the applicant procedural fairness in accordance with the statutory framework.ConclusionThe Court finds that the Tribunal fully complied with procedural fairness requirements in Division 4 of Part 7 of the Act in reaching its conclusion that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention and that therefore the applicant does not satisfy the criterion set out in s 36(2) for a protection visa.The application before this Court is dismisse
10
1