MZXBM v Minister for Immigration
[2007] FMCA 10
•19 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXBM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 10 |
| MIGRATION – Whether s.424A process enlivened – whether “information” in protection visa application adopted in application to RRT – determined on facts – the information was expressly adopted for the purpose of the Tribunal review by reference in the written application to the Tribunal – application for review dismissed. |
| Migration Act 1958 , ss.424A, 424A(3)(b) |
| SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 Minister for Immigration and Multicultural Affairs [2001] 110 FCR 27 SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 SZDKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1203 NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744 SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 |
| Applicant: | MZXBM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG1034 of 2005 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 2 February 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 19 January 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gibson |
| Solicitors for the Applicant: | Jural Immigration Services |
| Counsel for the First Respondent: | Ms Riley |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The amended application for review filed on 4 November 2005 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $8,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG1034 of 2005
| MZXBM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In this application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 22 July 2005, the ground relied on by the applicant is very narrow. It relates to the operation of s.424A of the Migration Act1958 (the Act) and whether the applicant in his application for review to the Tribunal adopted, or republished the information contained in his original protection visa application.
This is the pivotal issue in this case.
On the premise that the applicant could not be said to have adopted the information in the application for a protection visa, the applicant argued that the process embodied in s.424A was engaged.
The applicant’s submissions in support of his case were lengthy, well structured and expertly argued. I need not, for the purposes of this decision go into any great detail, however, about those submissions, or the first respondent’s submissions in reply, as the threshold issue centred on whether the applicant could be said to have adopted that information in his application for review to the Tribunal. For the reasons set out below, I am of the view he clearly and unequivocally adopted the “information” in his original protection visa application. The exception, therefore, set out in s.424A(3)(b) is applicable.
The other issues raised by the applicant and responded to by the first respondent, such as whether an omission as to a material fact in the original application for a protection visa, but given for the first time in evidence at the Tribunal hearing, was “information” contemplated by s.424A, became irrelevant to the determination of this review; as too, was an examination of the history and analysis of other cases to determine whether a standard, however defined, had been reached whereby adoption could be said to have taken place. The simple reality of this case was that argued by the first respondent as its primary position; namely, there was a clear and unequivocal adoption of the “information” in the original protection visa application by the applicant for his application for review to the Tribunal.
Background
The applicant is a 26‑year‑old citizen of Bangladesh who came to Australia on 22 June 2001 on a student visa. He applied for a protection visa on 5 February 2004. On 10 November 2004 a delegate of the first respondent refused to grant the applicant the visa and on
10 December 2004 he applied for a review to the Tribunal of that delegate’s decision. The Tribunal handed down its decision on
22 July 2005, which decision affirmed the delegate’s determination.
Relevantly, for the purposes of this review, the applicant claimed in his original protection application that he was “in pressure” from both his own political party (the Bangladesh Chattra League) and the opposition party, the Bangladesh National Party (BNP). In later material filed with the first respondent for the consideration of the delegate, he sent a letter setting out that there were three warrants issued for his arrest.
In neither document did he say he had been sued for murder. He also did not make that claim in the material he filed with the Tribunal in support of his review application. That claim was made only at the hearing before the Tribunal.
The Tribunal decision
At the hearing the applicant gave evidence for the first time that the BNP had sued him for murder. The Tribunal questioned the applicant as to why this aspect was raised so late in the process and not raised earlier. In summary, it is fair to say, that in the mind of the Tribunal such a circumstance was of considerable significance and should it have happened, the Tribunal believed it ought to have been set out in the applicant’s application for a protection visa. The fact that it was not cast, clearly, in the mind of the Tribunal considerable doubt on the credibility of the applicant.
In its findings the Tribunal noted that the applicant only made “this very significant claim for the first time at the hearing.” It “did not accept that the applicant would have failed to raise this claim at an earlier stage given its importance, if it had occurred.” It further noted “all the applicant had previously claimed was that the BNP had put pressure on him.” It found that “being accused of murder and having a warrant issued for your arrest is considerably more serious than having pressure on him.” The Tribunal then referred to the fact that the applicant had provided arrest warrants but noted that the applicant had never stated what these were related to, or who had been responsible for their existence. The Tribunal found that “given the lateness of his claim the Tribunal did not accept that the applicant was sued for killing someone”, nor that he had to go into hiding.
The Tribunal also found that the warrants were not genuine.
In concluding, the Tribunal stated, after rejecting the claim of being sued for murder and the existence of warrants of arrest, that it “does not accept that the BNP have ever had any adverse interest in the applicant, either for political or personal reasons. Nor does it accept that there is a real chance they will be interested in him because of his past political opinion …”
The contentions
The applicant contends that the Tribunal failed to comply with s.424A of the Act by failing to give particulars of information which was an essential part of the reason for affirming the decision under review; being the:
i)information made in his application that the BNP had put pressure upon him; and
ii)information made in his application that he had travelled back to Bangladesh.
In respect of the second contention about the applicant returning to Bangladesh in 2003, I note that in both written and verbal submissions by the applicant no reference or argument was made to it. For that reason I take the applicant to have abandoned this particular ground for review.
Instead, the focus of the applicant’s contentions was whether the use by the Tribunal of the fact that no reference was made in the original application for a protection visa by the applicant to the BNP suing him for murder, was “information” that engaged the process embodied in s.424A of the Act. The hearing of this review took place prior to judgment being brought down in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. Consequently, in supplementary contentions filed by the applicant after that case, he argued with seemingly more confidence in his position on the contentions that centred around the issues in Minister for Immigration and Multicultural Affairs v Al Shamry [2001] 110 FCR 27; that is, the issue of whether information given in the original protection visa application could not be said to have been given for the purpose of an application for review to the Tribunal. SZEEU stood as authority to the requirement that the s.424A process was engaged should the reason, or part of the reason for the Tribunal’s decision have relied on information disclosed in the original protection visa application. However, these arguments are superfluous having regard to my determination on the pivotal issue.
The first respondent also filed supplementary contentions following on from SZEEU which narrowed the first respondent’s contentions whereby she argued that the “information” said to have engaged the process in s.424A was not “information” as properly understood by that expression, but in any event, should it be, it was within the exception embodied in s.424A (3)(b) of the Act. The first respondent’s primary contentions were not dependant on the correctness or otherwise of
Al Shamryand SZEEU.
The first respondent contended that the applicant had, for the purposes of the application for review before the Tribunal, adopted, in effect, the material submitted by him for the original protection visa application. The basis for this contention was the following:
a)The applicant in his submission to the Tribunal stated: “I…am applying for your considerate review of the decision made about my protection visa application…I want your kind reconsideration about all my papers submitted…” The first respondent contended that the applicant was asking the Tribunal to consider the content of all the papers he had submitted, including those lodged in connection with his protection visa application. The first respondent says she is strengthened in this contention by references made by the applicant in his application to the Tribunal to, “my first application” and “the second letter”.
b)In light of the matters set out in a), the first respondent contended that it would have been seriously remiss of the Tribunal, in the face of such a request, not to look at the papers lodged in connection with the protection visa application, especially as it had told the applicant that it would obtain the department’s file in a letter to him dated 14 December 2004.
c)The first respondent, therefore, contended that the information given by the applicant in the original protection visa application was given again by him for the purposes of the review application by virtue of the applicant expressly adopting that information
This issue is, in my view, readily determined by examining the application for review filed with the Tribunal. It appears on pages 129–135 of the Court Book (CB). There can be no doubt that the statement attached to the printed form of the application appearing at pages 133–135 is part of the applicant’s application to the Tribunal. Relevantly, that statement says:
“I, Abudllah Akash Khan, am applying for your consideration review of the decision made about my protection visa application as my application was unsuccessful. I want your kind reconsideration about all my papers submitted and the circumstances provided below that made me to apply RRT. (emphasis added)
1. Reasons for which I believe the information I provided was creditable
The refusal letter sent to me pointed out a number of reasons why my application for protection visa was refused. Among those a question of creditability of the information I provided has been raised against which I have the following to say
1.1 In my first application I mentioned myself as a leader of Chattra League which is student organisation of Awami League currently the major opposition party in Bangladesh. In the second letter I specifically mentioned my position and provided corroboration evidence as asked by the Department of Multicultural and Indigenous Affairs.” (emphasis added)
The reference to the “first application” and his leadership of the Chattra League is a clear reference to the original application for a protection visa appearing at pages 1–18 of the CB; in particular to the statement appearing as an attachment to that application at page 16 of the CB. That statement is the one that makes reference to him being “in pressure from both my party and the opposition” and the one used by the Tribunal to highlight the apparent inconsistency going to credit between the original protection visa application and the evidence given by the applicant at the Tribunal.
Further, the reference to “in the second letter” is clearly a reference to the document appearing at page 47 of the CB. That document refers to the issue of the three warrants, without it specifying the warrants were issued (or at least one of them) in respect of him being sued for murder.
I am satisfied that, even should I find that the failure to mention in his original protection visa application the murder charge amounts to “information” as postulated by the applicant, the question of the applicant adopting the information in that original application is, in my view, beyond doubt (see SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 and SZDKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1203 on whether omissions amount to “information”. However, it is to be noted that neither of these cases involved, as in this case, an express adoption of the “information” in the original protection visa application). By reference, as set out above, I am of the view the applicant expressly adopted the information in the original application and because of such, the exception in s.424A(3)(b) is operative.
The factual circumstances of this case do not, as the applicant contended, engage the rationale set out in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744. Although there was certainly an exchange entered into between the Tribunal and the applicant about the information that was missing in the original protection visa application and the new evidence given at the hearing, the first respondent was not relying on that exchange to establish an adoption or republishing of the information. The first respondent was relying on the express adoption in the application to the Tribunal of the material submitted in support of the original protection visa application (see SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034). To the extent the applicant mounted contentions around NAZY, it was misconceived.
Conclusion
For the reasons stated above, the “information” (should it be properly described as such) was information adopted expressly by the applicant in his application to the Tribunal for a review of the delegate’s determination. It follows therefore that should the s.424A process be engaged, then the exception in s.424A(3)(b) has application as the applicant, clearly in my view, by reference, in his application to the Tribunal, gave that information contained in his original protection visa application for the purpose of his application to the Tribunal.
It follows therefore that the amended application filed on 4 November 2005 should be dismissed with costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of O'Dwyer FM
Associate:
Date: 19 January 2007
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