MZXHC v Minister for Immigration
[2006] FMCA 1129
•10 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXHC v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1129 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error – whether breach of s.424A of Migration Act. PRACTICE AND PROCEDURE – Extension of time – s.477 Migration Act – explanation provided – extension granted – interests of justice. |
| Migration Act 1958, ss.418(3), 422B, 424A, 424A(1), 424A(3), 424A(3)(b), 477, 477(2) |
| SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 |
| Applicant: | MZXHC |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 211 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 13 July 2006 |
| Delivered at: | Melbourne (by video link to Sydney) |
| Delivered on: | 10 August 2006 |
REPRESENTATION
| Applicant: | In Person (assisted by a Tamil interpreter) |
| Counsel for the Respondents: | Ms S. Moore |
| Solicitors for the Respondents: | Phillips Fox Lawyers |
ORDERS
The Application be dismissed.
The Applicant shall pay the First Respondent's costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 211 of 2006
| MZXHC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application, the Applicant relies upon an amended application filed on 28 March 2006 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 December 2005. The original application in this matter was filed on 8 February 2006. The decision of the Tribunal affirmed a decision of a delegate of the First Respondent refusing to grant to the Applicant a protection visa.
A preliminary issue was raised by the First Respondent in a notice of objection to competency dated 12 July 2006, which I note is dated just one day prior to the hearing of this matter. In that notice, the First Respondent brought to the Court's attention the time limit which applies to applications of this kind pursuant to s.477 of the Migration Act 1958 (“the Act”).
The Applicant has conceded that he received actual notification of the Tribunal decision on 9 January 2006 and that his application for judicial review was not filed until 8 February 2006, which is just outside the 28-day time limit set out in s.477(2) of the Act.
The notice of objection to competency had only been brought to the attention of the Applicant on the day of the hearing, and accordingly I permitted the Applicant to provide from the Bar Table any reason for the application being filed out of time, albeit by only a relatively short period of some days.
The Applicant indicated that he had not received advice concerning the time-limit from his then Migration Agent until after the time period had expired, and that upon receiving that advice, he immediately filed the application. Although the Applicant has not formally made an application for the Court to exercise its powers under s.477 to extend the period of time by up to 56 days. I accept that it was in fact his intention to do so and I am prepared to consider the matter accordingly.
Given the explanation provided by the Applicant, I indicated during the hearing that I was prepared to extend the time within which the Applicant should file the application to 8 February 2006. I thought it was in the interests of justice to do so, notwithstanding reservations I had concerning the merit of the application which I shall consider further in this application. I accept that in normal circumstances, the Court may well refuse to extend time where it is concluded that there is no arguable case or very little merit at all in an application before the Court. Given however, the late notice provided by the First Respondent in this instance and the very short period of time whereby the Applicant had failed to file the application, I am prepared to make due allowance in this instance, and note as well the Applicant's explanation for the short delay.
The Applicant had been given the opportunity of filing an amended application which he filed on 28 March 2006. He has not otherwise provided any submissions in support of the application though I note that the Applicant is self-represented, though with the aid of an interpreter. At the end of the proceeding after hearing the First Respondent, the Applicant sought and was granted leave to file and serve a written reply. Submissions in reply have not been filed.
In the amended application the Applicant relies upon three grounds, namely:
“1.The Tribunal failed to follow procedural fairness as required under section 424A(1) and section 418(3) of the Migration Act 1958.
2.That the decision led to the omission of principles of natural justice by placing an excessive burden of proof upon me to establish my case for the granting of a Protection visa while making a decision.
3.That an irrelevant notion taken into consideration leaving behind real aspects of the issues thus failed to take into account relevant issues.”
I deliberately set out the grounds as they appear in the amended application, and I note that certain particulars were provided which I shall refer to when considering the submissions and reasoning in this application.
By way of background, it is noted that the Applicant is a 30 year old male citizen of India. On 27 September 2004, he applied to the First Respondent's Department for a business (short stay) visa. The Applicant last arrived in Australia on 4 November 2004 on a short stay visa. The Applicant's wife, son, daughter and other family members remain in India.
Before arriving in Australia, the Applicant claimed to have fled to Malaysia on 14 May 2004, then to Singapore on 14 July 2004 and Indonesia on 6 August 2004 before then returning to India to visit family on 29 August 2004. The Applicant's application for a protection visa was lodged with the Department on 1 December 2004.
In support of that application, the Applicant relied upon a statement dated 30 November 2004 (Court Book page 32). Included in the Applicant's application was his wife as a member of his family, though she makes no claims of her own. Hence, it is appropriate to deal with and refer to the Applicant.
A delegate of the First Respondent refused to grant the protection visa on 30 August 2005. The Applicant then applied to the Tribunal for review of the delegate's decision on 27 September 2005.
The Applicant's Claims
The Applicant's claims, as noted earlier, were initially set out in the statement filed with the protection visa application (Court Book page 32). Those claims amongst others were then set out in some detail in the Tribunal's decision under the heading "Claims and Evidence" (Court Book pages 164-183). Further, the Applicant provided additional written submissions to the Tribunal dated
23 November 2005 from the then solicitor acting for and on behalf of the Applicant (Court Book page 93-123).
In brief terms, the Applicant claimed to be persecuted for reason of his political opinion arising from his involvement as a member of the Dravidian Progress Federation ("the DMK") and his Muslim religious beliefs.
The Tribunal Decision
The Tribunal conducted a hearing on 24 November 2005. At that hearing, a number of documents were tendered on behalf of the Applicant, including the submissions referred to dated 23 November 2005. On 28 November 2005, the Tribunal forwarded to the then Applicant's legal representative a letter pursuant to s.424A of the Act. That letter sought comments from the Applicant in relation to information that might be the reason or part of the reason for the Tribunal deciding that the Applicant was not entitled to a protection visa.
It is not necessary for the Court to set out the contents of the s.424A letter which appears at Court Book pages 126-131. It is sufficient to note that the letter is very detailed and covers a wide range of issues then brought to the attention of the Applicant and his advisers. A Tribunal officer telephoned the Applicant's legal representative on
19 December 2005, seeking a response to the s.424A letter. According to a file note the legal adviser agreed to send in documents which he currently had immediately, but noted the documents would not include English translations.
On 22 December 2005, the same Tribunal officer again telephoned the Applicant's legal representatives and a file note reveals that the then legal representative confirmed that he had mailed a reply to the s.424A letter that day and that the submission did not include English translations. The Tribunal upon receipt of certain documents, arranged for an English translation to be made of those documents (Court Book pages 134‑139). Translations were then provided (Court Book pages 141-151).
The Tribunal in its reasons set out in considerable detail the claims made by the Applicant. It then set out in further detail its findings and reasons. Those findings ultimately led the Tribunal to conclude that it was not satisfied the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Tribunal significantly found that the Applicant "did not present as a credible and convincing witness". It otherwise made specific findings in relation to what it referred to as "inconsistent evidence" of the Applicant. It is not necessary in this judgment to further recite the detailed findings and reasons of the Tribunal.
Grounds of Review
Ground 1 - Section 424A and Section 418(3)
This ground referred to in the amended application, was not the subject of any further particulars. The First Respondent submitted, and I accept, that the issue of whether a Tribunal has breached s.424A and the scope and application of s.424A has been relevantly considered by the Full Court of the Federal Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 (“SZEEU”). The First Respondent submitted, and I accept, that in the light of the Full Court authority in SZEEU, when considering whether or not s.424A has been breached, it is necessary to consider the following:-
·was there "information"?;
·was the information used by the Tribunal as "the reason, or part of the reason, for affirming the decision that is under review"?; and;
·does one of the exceptions in s.424A(3) apply?
It was submitted in this application by the First Respondent, that the Tribunal's detailed s.424A letter set out matters described as "relevant facts or events" that the Tribunal claimed the Applicant had difficulty describing in a "manner consistent with his written statement provided with his protection visa application".
It was submitted that that letter sets out in significant detail the inconsistencies between the Applicant's protection visa application and his oral evidence or documentary evidence provided for the purpose of the application for review. It was then submitted, and I accept, that inconsistencies that could be claimed to arise from information used by the Tribunal as the reason or part of the reason for affirming the decision under review are set out and there has been no breach of s.424A because the Tribunal provided the Applicant with the particulars of that information in writing.
This was illustrated in relation to the issue of inconsistencies. In the alternative, the First Respondent submitted that if any information not included in the s.424A letter was a reason or part of the reason for the Tribunal's decision then the Tribunal “was relieved of its obligation to put that information in writing to the Applicant because the information was ultimately provided by the Applicant for the purpose of the application to the Tribunal”. This was claimed to be due to the fact that it was either part of or incorporated in the written submissions and attachments provided to the Tribunal or as part of the Applicant's oral evidence during the hearing rather than the original visa application. That information, it was argued, would be exempted by s.424A(3)(b) of the Act and there was no requirement on the Tribunal to put those particulars to the Applicant for his comment.
The First Respondent otherwise sought to rely upon the operation of s.422B of the Act as an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters it dealt with. It was noted during the course of submissions, that in any event, a natural justice issue was not raised squarely in the grounds sought to be relied upon by the Applicant in the amended application.
It was submitted that accordingly Ground 1 should fail on the basis that the s.424A letter sent by the Tribunal fulfilled the obligations under the Act and that there was no error of law.
Reasoning
As indicated earlier, the submissions of the First Respondent are correct in relation to the characterisation and description of the s.424A letter. That letter clearly contains sufficient material to ensure that the Tribunal has discharged the obligations it has under s.424A of the Act. I cannot see any error of law in the manner in which the Tribunal has undertaken its task. Indeed quite to the contrary, the letter itself is an extremely detailed letter setting out numerous examples of inconsistencies in the material which gave the Applicant more than an adequate opportunity to make a comment relevant to the application before the Tribunal.
I am satisfied that other material which may in general be regarded as ‘information’ came from the Applicant in the material he had relied upon for the purpose of the application before the Tribunal and to that extent, I accept as submitted by the First Respondent that in this instance s.424A(3) exempts that information when considering the obligations of the Tribunal under s.424A of the Act. I am satisfied that this ground should fail.
Ground 2 - Burden of Proof
In support of this ground, the Applicant provided particulars which are set out in the amended application as follows:
“The Tribunal exerted pressure on me which was displayed by a series of questions put to me in that the Tribunal sought excessive detail to persons circumstances which I was unable to recall due to nervousness and due to my being before a foreign Tribunal for the first time.
The Tribunal failed to take into consideration of trauma I experienced when assessing the fears of retribution by the ruling members of Tamilnadu state.
My oral statements were not accepted by the Tribunal resulting in denial of procedural fairness.
The purported decision of the Tribunal was infected with error. The Tribunal did not have the jurisdiction to make such a decision and failed to exercise its jurisdiction. Consequently the purported decision was not "decision" for the purposes of the definition of a "private clause decision" under s.474 of the Migration Act 1958 and therefore was not such a "private clause decision".” [sic]
The First Respondent submitted that in this instance, no specific allegation has been made that any provision of the Act has been breached. Without any further particulars, it was submitted that the Applicant has simply referred to what he described as "exerted pressure". The Second Respondent submitted that there is no properly pleaded or particularised allegation of breach of the rules of natural justice or procedural fairness. A mere claim of fear of persecution for a particular reason does not establish either the genuineness of the asserted fear that is well-founded or that the fear of persecution existed for the reason claimed.
It was submitted the Tribunal, when assessing credibility and otherwise dealing with the claims made by an Applicant, is entitled to critically assess the Applicant's evidence by way of questions. It is entitled to test and then, as it did in this case, ultimately did not accept the Applicant's oral statements.
Reasoning
A proper reading of the Tribunal's decision indicates that it has considered in detail the claims made by the Applicant. Although the Applicant had an opportunity to provide a Supplementary Court Book or otherwise provide submissions in relation to this issue, he has failed to do so in a manner which would provide any or any adequate material in support of the suggestion that the Tribunal had breached the principles of natural justice by placing an excessive burden of proof on him. I can see no evidence which would support that conclusion, and accordingly this ground should fail.
Ground 3 - Taking Into Account an Irrelevant Consideration or Failure to Take Into Account Relevant Issues
Again it is noted in the submissions by the Second Respondent that the Applicant has failed to provide any particulars in support of this ground, and further it was submitted that the Tribunal's reasons demonstrate comprehensive consideration of all the Applicant's claims and evidence. Accordingly, it was submitted there was no jurisdictional error demonstrated by the Applicant, based upon a failure to take into account relevant considerations or a claim that the Tribunal took into account irrelevant considerations.
Reasoning
The First Respondent's submissions are correct. The Tribunal in its very detailed decision including the detailed reference to the claims and evidence of the Applicant has clearly taken into account all the relevant matters raised by the Applicant. There is no evidence before this Court or particulars provided that would indicate that the Tribunal has failed to have regard to the relevant matters placed before it by the Applicant, and nor is there any material before me which would provide any or any proper basis from which this Court could conclude that the Tribunal has taken into account irrelevant considerations. Accordingly, this ground fails.
Conclusion
It therefore follows, for the reasons given that the application should be dismissed and the Applicant shall pay the First Respondent's costs fixed in the sum of $6,500.00.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 10 August 2006
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