MZAKZ v Minister for Immigration
[2015] FCCA 1832
•2 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAKZ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1832 |
| Catchwords: MIGRATION – Refugee Review Tribunal – tribunal reconstituted – tribunal as reconstituted did not invite applicant to second hearing – whether the conduct of the tribunal as originally constituted created a legitimate expectation that the applicant would be invited to a second hearing – whether a failure to act in accordance with a legitimate expectation amounts to a jurisdictional error. |
| Legislation: Migration Act 1958, ss.420(1), 422 |
| Cases cited: Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541; (2001) 187 ALR 348; [2001] FCA 1362 Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; (2013) 132 ALD 269; (2013) 296 ALR 525; [2013] FCAFC 33 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; (2012) 86 ALJR 1019; (2012) 130 ALD 1; (2012) 290 ALR 616; [2012] HCA 31 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; (2003) 77 ALJR 699; (2003) 72 ALD 613; (2003) 195 ALR 502; (2003) 24(4) Leg Rep 8; [2003] HCA 6 SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1; (2008) 103 ALD 248; (2008) 249 ALR 58; [2008] FCAFC 138 SZKJI v Minister for Immigration and Citizenship [2008] FCA 1193 WZARH v Minister for Immigration and Border Protection (2014) 316 ALR 389; (2014) 142 ALD 490; [2014] FCAFC 137 |
| Applicant: | MZAKZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1927 of 2014 |
| Judgment of: | Judge Riley |
| Hearing dates: | 27 and 28 April 2015 |
| Date of last submission: | 28 April 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 2 July 2015 |
REPRESENTATION
| Counsel for the applicant: | Jim McKenna |
| Solicitors for the applicant: | King & Wood Mallesons |
| Counsel for the first respondent: | Nick Wood |
| Solicitors for the first respondent: | DLA Piper Australia |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | DLA Piper Australia |
ORDERS
The application filed on 22 September 2014 and amended on 26 February 2015 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1927 of 2014
| MZAKZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First respondent
| REFUGEE REVIEW TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Refugee Review Tribunal (“the tribunal”). In that decision, the tribunal affirmed a decision of the delegate not to grant the applicant a protection visa.
The applicant is a citizen of Malaysia. He arrived in Australia on 12 April 2009, when he was intercepted by the Australian Federal Police. He was found to have been attempting to import heroin. He was convicted and sentenced to eight years’ imprisonment. On 11 July 2013, after the expiry of his non-parole period of three years and four months, the applicant was released from prison and immediately placed in immigration detention. On 2 August 2013, the applicant applied for a protection visa.
The applicant’s claims
The applicant claimed that:
a)a criminal gang had threatened to harm him if he did not pay them for the drugs that had been seized from him; and
b)the Malaysian authorities:
i)would not protect him from the criminal gang;
ii)would punish him for the drug importation he had already been punished for in Australia;
iii)would harm him because he is a Tamil of Indian ethnicity and had sought protection in Australia; and
iv)would harm him because he had failed to comply with certain drug rehabilitation orders made by authorities in Malaysia.
The constitution of the tribunal
On 22 November 2013, the Principal Member of the tribunal directed that, for the purposes of this matter, the tribunal be constituted by a particular member (“the first member”). On 25 February 2014, the applicant attended a hearing before the first member. Later, and before determining the matter, the first member stopped being a member of the tribunal. On 3 July 2014, the Principal Member issued a direction under s.422 of the Migration Act 1958 (“the Act”) that the tribunal be constituted by another member (“the second member”) to finish the review. The tribunal’s decision in this matter was made by the second member. It was common ground that the applicant was not alerted to the change in the constitution of the tribunal prior to the tribunal’s decision being made.
Section 422 of the Act provides that:
(1)If the member who constitutes the Tribunal for the purposes of a particular review:
(a) stops being a member; or
(b)for any reason, is not available for the purpose of the review at the place where the review is being conducted;
the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.
(1A)To avoid doubt, this section does not apply after a decision on the review is taken to have been made as provided by subsection 430(2) (written decisions) or subsection 430D(1) (oral decisions).
(2)If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.
(3)In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 420(1).
Subsection 420(1) of the Act provides that:
The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
The tribunal’s reasons
The tribunal, without referring to the applicant’s demeanour, considered that the applicant was not a witness of truth. The tribunal considered that the applicant had progressively embellished his claims and had changed his evidence to deal with potential difficulties. After addressing the applicant’s claims in some detail, the tribunal did not accept that the applicant had a well-founded fear of persecution in Malaysia for any Convention reason and did not accept that there was a real risk that the applicant would face significant harm as defined in the Act if he were to return to Malaysia.
Ground of application
The single ground of review in the application filed on 22 September 2014 and amended on 26 February 2015 is:
The decision of the Refugee Review Tribunal (Tribunal) was affected by jurisdictional error in that the Tribunal did not afford procedural fairness to the applicant.
Particulars
(a) The applicant had a legitimate expectation that:
(i) The determination by the Tribunal of the applicant’s application for review (Tribunal decision) would be made by the Tribunal member who conducted the oral hearing on 25 February 2014.
(ii) If the Tribunal decision was to be made by a differently constituted Tribunal, the alternate Tribunal member would conduct an interview or oral hearing.
(b)The Tribunal decision was not made by the Tribunal member who conducted the oral hearing on 25 February 2014.
(c) The applicant was not:
(i) Informed that the Tribunal decision would be made by a differently constituted Tribunal and given an opportunity to respond; or
(ii) Invited to attend an interview or oral hearing with the different[ly] constituted Tribunal.
The applicant relied primarily on the decision of the Full Court of the Federal Court in WZARH v Minister for Immigration and Border Protection (2014) 142 ALD 490; (2014) 316 ALR 389; [2014] FCAFC 137 at [24] where Flick and Gleeson JJ said:
Whatever may have been the position had the appellant been told that the independent merits reviewer was (for whatever reason) no longer available to complete the review process, he was not told of that unavailability. Where a claimant has been led to believe by both statements made by a person who was an independent merits reviewer and by that person’s conduct in conducting a hearing or interview, that the claim is being processed by that person, the claimant has a legitimate expectation that the process will be completed by that person. Alternatively, a claimant who has participated in an administrative process whereby an oral hearing or interview has been conducted has a legitimate expectation that any recommendation made to the minister will be a recommendation made following the same administrative process. In this case, that involved an oral hearing by the independent merits reviewer who made the adverse recommendation to the minister. If for whatever reason a person conducting an independent merits review becomes unavailable, a claimant is at the very least entitled to be heard before his legitimate expectation is defeated, by being given an opportunity to make submissions as to how the review process should continue.
The first respondent sought to distinguish WZARH on the grounds that it concerned a decision by an independent merits reviewer, whereas the matter presently before the court concerns a decision of the tribunal. As the Full Court of the Federal Court observed in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; (2013) 132 ALD 269; (2013) 296 ALR 525; [2013] FCAFC 33 at [157]:
…the procedural fairness obligations for RSAs and IMRs are not informed by those that the Migration Act specifically requires of the Refugee Review Tribunal, but by the common law. In that regard, the assessor or the reviewer is under more onerous obligations in relation to the provision of country information.
Clearly, this matter does not concern obligations in relation to country information. However, the essential point from SZQRB for present purposes is that the procedural fairness obligations of the tribunal are not the same as those of the independent merits reviewer. That is because the tribunal’s procedural fairness obligations are governed by a statutory code contained in the Act whereas the independent merits reviewer’s procedural fairness obligations are contained in the common law.
Consequently, I am satisfied that WZARH is distinguishable from the present matter. (Special leave to appeal to the High Court against the decision in WZARH was granted on 17 April 2015. However, that appeal is yet to be determined.)
Moreover, there is other authority of the Full Court of the Federal Court that is more directly on point, although much older. In Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541; (2001) 187 ALR 348; [2001] FCA 1362 at [3], the court posed the question:
…If the tribunal member who constitutes the tribunal for the purposes of a particular review stops being a member after there has been an oral hearing, and the tribunal is reconstituted by another member to finish the review, is the second member required to invite the applicant to appear and give evidence and present arguments in accordance with s 425 of the Act?
The Full Court answered that question in that negative at [51]. That decision remains binding on this court, notwithstanding that it was questioned in SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1; (2008) 103 ALD 248; (2008) 249 ALR 58; [2008] FCAFC 138 and SZKJI v Minister for Immigration and Citizenship [2008] FCA 1193.
Nevertheless, the applicant sought to argue that there were particular features of the present case that took it outside the scope of Lui. Those features were said to be statements made by the first member during the hearing that created a legitimate expectation that she would determine the matter. The applicant filed an affidavit affirmed by Alexandra Lockie on 26 February 2015 to which was exhibited a transcript of the hearing before the first member. The first respondent did not take issue with that transcript.
The statements relied upon by the applicant were as follows:
Thank you. Alright so, um my name is [first member], I’m the person who’s looking at your case.
…
I am not the Department of Immigration and I do not need to make the same decision that they made, I make up my own mind.
…
And in doing that, what I need to work out is whether I think you are a refugee (Transcript at p 2.3 - 5).
…
Now, if I find that you do not meet that definition then I need to look at another definition.
…
I must look at whether I think um, if you go back to Malaysia, you will suffer significant harm (Transcript at p 3.5 - 6).
…
Oh my god. I think I need to sleep on this.
What I will do is, I am happy to take submissions from you at the end I don’t want you interrupting while I am taking the evidence. I do understand that some questions may need to be explored further and that’s I am intend to do (Transcript at p 6.5).
…
Okay, now I am going to go away and look at everything anyway.
…
It may be that I’ll need to write to you pursuant to s.424A. You’re giving yourself a week and a half to put everything you’d like to put in. I may not be able to review the file and write to you pursuant to s.424A within that time anyway (Transcript at
p 48.9 - 49.01).The first respondent submitted that the concept of legitimate expectation has no place in Australian law. The first respondent noted that, in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; (2012) 86 ALJR 1019; (2012) 130 ALD 1; (2012) 290 ALR 616; [2012] HCA 31, a majority of the High Court said at [65]:
…for the reasons given in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam by McHugh and Gummow JJ, Hayne J and Callinan J, the phrase “legitimate expectation” when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded. The phrase, as Brennan J explained in South Australia v O'Shea, “tends to direct attention on the merits of the particular decision rather than on the character of the interests which any exercise of the power is apt to affect”.(citations omitted)
In Plaintiff S10/2011, the majority of the High Court referred to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 20 [61]-[63], 27-28 [81]-[83], 36-38 [116]-[121], 45-48 [140]-[148]; (2003) 77 ALJR 699; (2003) 72 ALD 613; (2003) 195 ALR 502; (2003) 24(4) Leg Rep 8; [2003] HCA 6. Without setting out those passages in full, the general gist of them is that, in the law in Australia, the concept of legitimate expectations does not give substantive rights, but may give procedural rights in the sense of informing the content of the requirements of natural justice. Those requirements are exactly the issue that is before the court.
Even if the concept of legitimate expectation still has a place in Australian law in determining the content of the requirements of natural justice, I am not persuaded that, in the particular circumstances of this case, a legitimate expectation arose as asserted by the applicant.
At most, the first member said that she was going to look at everything before writing her decision. As such, this case is very different from those in which the tribunal member has promised to allow further written submissions or evidence to be filed before making a decision. While the first member used the word “I”, she meant “the tribunal”. There is no reason to doubt that the tribunal, as constituted by the second member, did look at everything. Consequently, the only promise that was made, correctly understood, was fulfilled.
Even if the first member had promised that she personally would make the decision, that was not a promise she had power to fulfil, once her appointment had ended. At that point, the first member had no legal capacity to make the decision. I fail to see how there can be a legitimate expectation of something that is not lawful.
Moreover, a promise to look at everything before writing the decision does not entail or connote an implied promise to give a second hearing in the event that the tribunal were reconstituted. There is no necessary link or logical connection between the two points.
In other words, the ground of review does not succeed on the facts. Moreover, the concept of legitimate expectation, on the authorities, probably has no place in Australian law. In addition, Liu is directly on point, and is against the applicant. To the extent that the natural justice provisions of the Act have changed since Liu was decided, if anything, they weaken the applicant’s position. While Liu has been questioned, it remains the law and is binding on this court.
Conclusion
For these reasons, the application must be dismissed with costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 2 July 2015
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