MZXID v Minister for Immigration
[2006] FMCA 1258
•1 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXID v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1258 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – allegations of lack of procedural fairness – application dismissed. |
| Migration Act 1958, ss.420, 424A, 424A(3)(a) |
| Ali v Minister for Immigration Multicultural Indigenous Affairs [2005] FCA 1415 NABE v Minister for Immigration Multicultural Indigenous Affairs (No 2) [2004] FCAFC 263 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 |
| Applicant: | MZXID |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 375 of 2006 |
| Judgment of: | Burchardt FM |
| Hearing date: | 16 August 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 1 September 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Mapombere |
| Solicitors for the Applicant: | Sulaika Dhanapala |
| Counsel for the Respondents: | Mr. Heerey |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
The application is dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 375 of 2006
| MZXID |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR DECISION
Introduction
This matter relates to a decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 February 2006. The Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a protection (class XA) visa. The background facts, which are not in my opinion, controversial, are set out in paragraphs 1 to 11 of the First Respondent’s contentions of fact and law, which I adopt for the purposes of this judgment.
The Applicant raised a number of issues before the Court. I will deal with them in turn.
Failure to provide the Applicant with sufficient time to obtain further documentation
What is in issue here is the failure of the Tribunal to adjourn the proceeding when invited to do so by letters from the Applicant dated 4 October 2005 and 19 October 2005. In substance, this was an allegation of a denial of procedural fairness (see Applicant’s contentions of fact and Law paragraphs 12 and 13).
The basis upon which the adjournment was sought was set out in the letter of 4 October 2005 as follows:
“We are instructed by the Applicants that they are attempting to obtain evidentiary documents in support of their claims from their family home in Sri Lanka. This includes such documents as the death certificate of Ms Manniku Wadu’s son, membership cards and medical reports. The Applicants instruct that they are unable to have these documents forwarded to them as Ms Manniku Wadu’s husband is currently in hiding due to the upcoming presidential election. They will be unable to obtain these documents until after the upcoming presidential election (which we understand are to be held on 17 October 2005).
Due to the importance of these documents to the Applicants’ claims, the Applicants request that the hearing being adjourned for several months to allow them to obtain these documents in preparation for their hearing. We would not consider this to be an unreasonable request given the important reason for the request.”
The Tribunal declined that request on 6 October 2005, (Court Book page 99) in terms which are clearly referred to in s.420 of the Migration Act 1958 (“the Act”). The Tribunal said relevantly, “the Tribunal is required to make decisions which are fair, just, economical, informal and quick. The Tribunal is not in a position to agree to your request for a postponement of several months”.
As counsel for the First Respondent accurately pointed out, the fixing of a matter for hearing and any question of adjournment of such hearing is a matter for the Tribunal’s discretion. The Applicant plainly had no statutory entitlement to demand that it be adjourned.
Counsel for the First Respondent referred me to the judgment of Lindgren J in Ali v Minister for Immigration Multicultural Indigenous Affairs [2005] FCA 1415. In that decision, Lindgren J observed that “each complaint of a failure to accord procedural fairness by reason of the refusal of an adjournment turns on its own facts. Whether an adjournment should be granted was a matter in the discretion of the trial judge (or Tribunal), to be resolved according to the overall requirements of justice in the particular circumstances”. Lindgren J went on to refer at paragraph [29] to a number of factors that are relevant to an adjournment application, such as the assessment of competing claims by litigants in other cases awaiting hearing, knowledge of the working of the listing system of the particular Court or Tribunal and the awareness of the importance to the proper working of that system of adherence to be dates fixed for hearing.
In my opinion, the Tribunal’s initial response to the request for the adjournment misconceived the function of the Tribunal. Faced with an expressed request for time to obtain relevant documentation, (which information would seem to have had some potential probative force) the Tribunal misconceived its function in forcing the matter on in the face of a request for a delay which was on its face not unreasonable.
However, the Applicant was not in the ultimate deprived of the opportunity of putting such materials as were foreshadowed before the Tribunal.
On 25 November 2005, the Tribunal wrote to the Applicant in compliance with s.424A of the Act, seeking that the Applicant comment on the various matters set out in that letter. While the letter did not in terms invite the Applicant to submit material of the sort earlier foreshadowed in the correspondence on 4 October 2005, it must have been plain to the Applicant and his advisors that there was indeed time to get such material and to include it in the material forwarded to the Tribunal.
The Applicant did indeed respond to the Tribunal on 19 December 2005 (Court Book pages 113 to 120). The letter concluded, “I would like to thank the Tribunal for providing me with the opportunity to make further submissions and wait for a favourable response at the earliest opportunity”.
In these circumstances, I am not persuaded that the Tribunal’s conduct in rejecting the application for an adjournment made in October 2005 was such as to deny the Applicant procedural unfairness.
Failure by the Tribunal to give consideration to the evidence given by the Applicant’s mother
At paragraph 14 of the Applicant’s contentions of fact and law, complaint is made of the failure of the Tribunal to give consideration at all to the evidence led by the Applicant’s mother at the hearing regarding the Applicant’s case, and in particular, the fact of the politically related murder of the Applicant’s brother.
As it is correctly pointed out by the First Respondent at paragraph 29 of its contentions of fact and law, the Applicant’s visa application and supporting statements stated that he had a brother who was living in Australia and made no mention of any alleged murder. There was no reference to the brother at all in the Applicant’s statutory declaration provided to the Tribunal or in his post hearing submission. While the Tribunal heard both the Applicant and his mother’s cases effectively at the same time (they were heard immediately one after the other), each of these cases was the subject of a separate decision. The evidence of the mother about the loss of her fifteen year old son in 1999, which was to the effect that she surmised that the death of that son, who was found dead in a river, might be politically related, was given in the absence of the Applicant. The Applicant himself never referred to his brother in his materials, save to the extent of the reference in the letter of
4 October 2005 to “the death certificate of Ms Manniku Wadu’s son”.
At the hearing of this matter, there was some discussion from the bar table as to whether or not the Applicant had sought to have included before the Tribunal material taken from his mother’s case. I gave the Applicant and his representatives seven days in which to file any materials in respect of that matter.
By letter dated 18 August 2006, the Applicant’s Migration Agent wrote to the Court. That letter confirmed that there was no oral or written request by the Applicant that his mother be called to give evidence on his behalf, or that the Tribunal pay regard to the materials in the mother’s case when considering the Applicant’s case.
Material forwarded by the Applicant’s Migration Agent on 18 August 2006, includes the Tribunal’s decision in the mother’s case. The Tribunal did not accept the assertions made in that case, by the mother, to the affect that her son had been murdered as an act of political revenge. I further note that the Tribunal apparently had before it the death certificate of the son, to which reference was made in the letter dated 4 October 2005 to the Tribunal from the Applicant and his solicitor.
To the extent that the correspondence most recently received, makes complaint of the failure to on the part of the Tribunal to take into consideration the material in the mother’s case, it would seem that even if such material had been received it would have not persuaded the Tribunal to an outcome in the Applicant’s favour. The direct testimony of the mother did not achieve this end.
In my opinion, the Tribunal was required to determine each of the applications before it discretely, and did not fall into error in doing so. The Tribunal was required only to take into consideration the material put before it by the Applicant and that is what it did.
Failure of the Tribunal to consider “Membership of a particular Social Group – Family”
At paragraph 20 of the Applicant’s contentions of fact and law, it was asserted that:
“Neither tapes of the Tribunals hearing of the Applicants make determination in respect of their refugee status on the basic (sic) of their membership of a particular social group. Accordingly, if the above claim was put to the Tribunal, or should have been evident to the Tribunal on the material before it even if the claim was not put to them, a jurisdictional error has occurred (authorities omitted).”
The First Respondent’s contentions of fact and law made clear at paragraph 31, however, the fact of the matter is that the Applicant never articulated the membership of a particular social group consisting of his family as a basis for his application. Rather, the Applicant’s evidence in his statement to the First Respondent’s Department, his statutory declaration to the Tribunal and his oral evidence at the Tribunal hearings, and his post hearing written submissions proceeded on the basis that the Applicant was the subject of a fear of persecution arising from political opinion imputed to him by his opponents and/or his membership and activity as a member of the liberal party.
While it is correct that the Applicant did give evidence that his family members were also subject to attacks because of their support for the liberal party, he at no stage alleged that family membership was a motivating factor for the alleged persecution independent of the political opinion imputed to him and his family members.
Rather, the Applicant sought to give support to his own case by giving evidence to the effect that his family, at least some of whom were also liberal party members, faced the same sort of prejudice and persecution that he did himself.
In NABE v Minister for Immigration Multicultural Indigenous Affairs (No 2) [2004] FCAFC 263 at [55] the Full Court of the Federal Court constituted by Black CJ, French and Selway JJ observed:
“There is … one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on “ … a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction – Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394”.”
Here, however, the Tribunal was not faced with a substantial, clearly articulated argument that the Applicant was the subject of persecution because of his membership of his family. Rather, in my opinion, properly categorised the evidence about the Applicant’s family was to the effect that they also faced persecution because of their membership of the liberal party, not that their family membership itself gave rise to such persecution.
Accordingly, I do not consider the Tribunal to have erred in this regard as alleged by the Applicant.
Failure by the Tribunal to consider the subjective fear of the Applicant or of his well founded fear of persecution
At paragraph 33 of the contentions of fact and law of the First Respondent, the First Respondent dealt with this aspect of the Applicant’s case in the following term at paragraph 16:
“The Applicant’s contentions complained that the Tribunal “did not consider the subjective fear of the Applicant or his well founded fear of persecution, but considered it in an objective manner”. This complaint is without substance. There can be no error in the Tribunal considering in an objective manner whether the Applicant has a “well founded fear of persecution” that is precisely how the Tribunal is required to consider that aspect of the definition under article 1A(2) of the Refugees Convention.”
The First Respondent then cites Chan Yee Kin v Minister for Immigration and Multicultural and Indigenous Affairs (1989) 169 CLR 379 (“Chan Yee Kin”) in this regard.
While, in my opinion, the proceeding paragraph correctly deals with the Applicant’s submission on this point, it should be noted that the Tribunal’s reasons taken as a whole show that it understood both what Dawson J referred to in “Chan Yee Kin” (at page 406) as the subjective state of mind - fear of being persecuted - and an objective requirement - a basis that was well founded for that fear.
In any event, the reason why the application was unsuccessful was because the Tribunal simply did not accept or believe the Applicant’s claims in relation to his fears of persecution.
Failure to provide the Applicant with procedural fairness
I have already dealt above with the issue of the refusal of the Tribunal to adjourn the proceedings in October 2005. No other basis for this assertion has been advanced in the Applicant’s materials.
Failure to comply with s.424A of the Act
At paragraph 28 of his contentions of fact and law, the Applicant complains that the failure of the Tribunal to provide sufficient time to obtain further documentation breached s.424A of the Act. I have already dealt with this matter when dealing with the issue of the adjournment in October 2005 above. In paragraphs 29 and 30 of the Applicant’s contentions of fact and law, complaint is made of a failure by the Tribunal to present the contents of country information on the conduct of the 2002 elections in Sri Lanka to the Applicant for his comments.
I accept the submission of the First Respondent set out at paragraph 37 of its contentions of fact and law. In my view, this sort of country information falls within the exclusion contained in s.424A(3)(a) of the Act, so that the Tribunal was not obliged to provide particulars of it pursuant to s.424A(1). I accept as it is said by counsel for the First Respondent that such information was not specifically about the Applicant and that this complaint reveals no error by the Tribunal.
Conclusion
In these circumstances, where all of the submissions advanced on behalf of the Applicant have failed, it therefore follows that the application must be dismissed. I will hear the parties on the question of costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate:
Date: 1 September 2006
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