MZXBQ v Minister for Immigration
[2007] FMCA 1835
•12 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXBQ v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1835 |
| MIGRATION – Application for judicial review – alleged breach of s.424A of Migration Act 1958 (Cth) – decision in SZBYR considered. |
| Migration Act 1958, ss.424A, 424A(1)(a) |
| SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 Re Refugee Tribunal and Another; Ex Parte Aala (2000) 204 CLR 82 |
| Applicant: | MZXBQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 127 of 2007 |
| Judgment of: | Burchardt FM |
| Hearing date: | 23 October 2007 |
| Date of last submission: | 23 October 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 12 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.R. Greentree |
| Solicitor for the Applicant: | Goz Chambers Lawyers |
| Counsel for the Respondents: | Mr A.J. Palmer |
| Solicitor for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
That the Applicant pay the costs of the First Respondent, fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 127 of 2007
| MZXBQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 15 January 2007.
The Applicant asserts that the Tribunal fell into jurisdictional error because it breached s.424A of the Migration Act 1958 (Cth) ("the Act"). The Applicant says that the Tribunal fell into error because it failed to provide the Applicant with information disclosed in the Applicant's High Court affidavit concerning his involvement with the UNP in 1992; and because it, likewise, failed to provide him with information in the DIMA files concerning his release from detention on a $20,000.00 bond put up by friends.
For the reasons that follow, I do not agree that the Tribunal erred in that respect.
The Applicant filed his original application on 8 February 2007, but filed an amended application dated 23 July 2007 by leave on 23 October 2007.
In fact the conduct of the Applicant's case has been somewhat unsatisfactory. Not only did the Applicant not, despite having been granted leave to do so on 10 April 2007, file his amended application before 26 April 2007, the July amended application was not filed, as
I say, until the hearing before the Court.
Similarly, the Applicant failed to file with the Court transcript of the hearing before the Tribunal upon which he wished to rely, nor did he serve it. It was only through the cooperation of the First Respondent that the proceeding was able to proceed on 23 October 2007.
At the commencement of the hearing the Applicant, through his counsel, expressly abandoned the grounds set out in paragraphs 2, 4, 5 and 6 of the amended application; ground 3, which I have summarised in paragraph 2 above, alone remained.
The High Court affidavit
The High Court affidavit was discussed with the Applicant by the Tribunal at the hearing (see transcript pages 21‑22). The Applicant in fact said that his affidavit was wrong to have asserted that the Applicant became involved with the UNP in 1992. He asserted that in effect the solicitor who had prepared the affidavit had got the facts in it wrong and that the Applicant had not understood this because he did not speak English.
Following the hearing before the Tribunal, the Tribunal wrote to the Applicant's adviser on 17 November 2006 (CB74‑78). At CB75, the Tribunal wrote:
Also in your High Court Affidavit dated and signed by you on 25 May 2004 you did not mention any claims relating to Jeevan Kumaratunga, witnessing vote buying by Jeevan Kumaratunga or receiving any death threats from him despite 14 of the 26 paragraphs of your Affidavit detailing your claims for protection and setting out the facts of your case. In this Affidavit you also stated that the claimed assault happened after the 1993 election.
This information is relevant because it indicates inconsistencies between the claims made in your protection visa application, in your High Court Affidavit and the claims made to the Tribunal and raises doubts in relation to the claims that you witnessed Jeevan Kumaratunga buying votes, that he threatened you and that you were subsequently assaulted and received injuries to your face and leg.
The Tribunal went on to say in the same paragraph:
This may also be a reason for finding that your claims as a whole are lacking in credibility and affirming the decision under review.
The submission made by the Applicant was that there was no mention in that letter about the discrepancy in the date earlier referred to in the transcript, i.e. 1992 or 1994.
Counsel for the Applicant referred to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) at [17]. This is the most recent decision of the High Court about the operation of s.424A.
Section 424A is of course now the comprehensive statutory regime for what might otherwise in the past have been described as natural justice points. It requires the Tribunal in a way that it considers appropriate in the circumstances to provide particulars of any information that the Tribunal considers would be the reason for affirming the decision that is under review and to invite the Applicant to comment on it. At [17] in SZBYR the High Court said that:
The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place... The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case.
It should be noted however that in that case, amongst other matters, the High Court confirmed, at [18], the correctness of the observations of Finn and Stone JJ in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [476]-[477] 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.
The High Court went on to say at [18]:
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 submission of the Applicant that he should have been alerted in advance in the s.424A letter to the possible significance of the 1992 to 1994 issue arising out of his High Court affidavit must be seen in proper context.
The Tribunal raised the discrepancy between 1992 and 1994 with the Applicant at the hearing but not in the s.424A letter. However, at CB123, the Tribunal expressly accepted the explanation given by the Applicant at the Tribunal hearing and found that "the Tribunal does accept that the Applicant worked at a local level in the 1994 election campaign of the UNP candidate, as he claimed in his protection visa application". This finding was wholly favourable to the Applicant and not one of which it was necessary to give him notice.
The issues about Jeevan Kumaratunga, which were an important part of the Tribunal’s reasons for decision, were expressly referred to in the s.424A letter and the Applicant responded to that letter. The terms
of s.424A were therefore fairly and squarely met.
Accordingly, there is no validity in the Applicant's submission on this point.
DIMA file
Here the difficulty that the Applicant faces is that the issue about the $20,000.00 bond that the Applicant canvassed with the Tribunal at pages 24 to 29 of the transcript was not referred to in the s.424A letter but, more importantly, was not referred to in the Tribunal's reasons for judgment either.
The Tribunal did canvass, at CB112, the interchange between the Tribunal and the Applicant about the bond issue in the proceeding. Counsel for the Applicant conceded that the Tribunal made no explicit credit finding on this point. He nonetheless suggested that the use of the phrase "future conditional" in SZBYR required the Tribunal to give the Applicant notice of this in the s.424A letter.
The reality is of course that in its findings and reasons - in other words, those parts of the decision that operate as a springboard for s.424A to apply - the Tribunal made no reference whatever to the bond issue.
It referred to a number of other matters which went to the Applicant's credit, but not that one.
Accordingly, there is no validity in this argument either.
The remedy is discretionary
Both parties agreed that in any event, as was made clear in SZBYR, relief in relation to the grant of constitutional writs is discretionary (see judgment of the majority at [27]-[29]).
It is true of course that the judgment of Kirby J, while agreeing that the issue of constitutional writs is discretionary, repeated what he had said in Re Refugee Tribunal and Another; Ex Parte Aala (2000) 204 CLR 82 that the public character of the legal duties which the remedies were designed to uphold meant that ordinary relief will issue where the preconditions are made out (see SZBYR at [57]).
In this case, even if it were shown that the Tribunal had breached the terms of s.424A, I would be minded to withhold relief.
The findings that the Tribunal made in relation to those matters in respect of which its decision was unimpeachable were, in my view, so overwhelming that there would be no utility in remitting the matter (see the majority in SZBYR at [28]-[29]).
However, it is not necessary to conclude the matter on this basis, as, for the reasons given, the two primary points made by the Applicant are totally misconceived.
If the Tribunal were to be required to approach the matter in the fashion for which the Applicant contends, the position would be as described by the majority in SZBYR. The Tribunal would have to write its decision in draft form and send the whole thing to each and every Applicant. As counsel for the First Respondent correctly submitted, the Tribunal would be writing all the time.
For these reasons, the application must be dismissed and the Applicant must pay the First Respondent's costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Deputy Associate
Date: 12 November 2007
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