MZXKY v Minister for Immigration
[2007] FMCA 763
•22 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXKY v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 763 |
| MIGRATION – Protection visa – whether breach of s.424A of Migration Act – whether no evidence – whether invitation to hearing invalid – whether jurisdictional error – application dismissed. |
| Migration Act 1958, ss.65, 422B, 424A, 424(3), 424C |
| Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 SZEEU v Minister for Immigration and Multicultural Affairs [2006] FCAFC 2 VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1009 Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 Paul v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 113 FCR 396 Minister for Immigration and Multicultural and Indigenous Affairs v Sun [2005] FCAFC 201 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 |
| Applicant: | MZXKY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 828 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 16 April 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 22 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr T.A. Fernandez |
| Solicitors for the Applicant: | T.A. Fernandez |
| Counsel for the First Respondent: | Ms S.A. Burchell |
| Solicitors for the First Respondent: | DLA Phillips Fox |
ORDERS
The Application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.00 together with $1,250.00 being the agreed amount of costs thrown away on 6 March 2007, making a total of $6,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 828 of 2006
| MZXKY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The application seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 9 May 2006. In its decision the Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant relies upon a further Amended Application filed
27 March 2007 and apart from oral submissions at the hearing made for and on behalf of the Applicant by his legal representative, reliance was also placed upon the contentions of fact and law filed 29 March 2007.
The First Respondent relies upon an outline of submissions filed 3 January 2007, together with further contentions of fact and law filed 12 April 2007 arising from the further Amended Application.
Background
The Applicant is a citizen of Uzbekistan. He arrived in Australia as a student in November 2005. For reasons which will become apparent it is useful to set out in brief terms the following chronology:
·12 December 2005, application for a protection visa filed (Court Book p.61).
·27 January 2006, application for a protection visa refused by a delegate of First Respondent (Court Book p.69).
·6 February 2006, application for review with Tribunal received (Court Book p.75).
·21 February 2006, application for review transferred to Sydney (Court Book p.77).
·24 February 2006, date of letter from Tribunal to Applicant's legal advisers pursuant to s.424A of the Migration Act 1958 (the s.424A letter) (Court Book pp.79-80).
·27 February 2006, date of invitation to attend hearing from Tribunal to Applicant's legal representatives pursuant to s.425 of the Migration Act with scheduled hearing date 30 March 2006.
·21 March 2006, last date for Applicant's comments in response to s.424A letter.
·21 March 2006, date of Applicant's response to s.424A letter comprising statutory declarations dated 20 March 2006 and 26 February 2006 (Court Book pp.94-110).
·28 March 2006, date of facsimile transmission from Applicant's legal advisers enclosing legal submissions and further statutory declaration of Applicant declared 27 March 2006.
·30 March 2006, Tribunal hearing date.
·9 May 2006, date of Tribunal decision.
Tribunal's decision
A brief summary of the Tribunal's decision in my view is accurately set out in the First Respondent's outline of submissions filed 3 January 2007 as follows:-
“11.1The applicant would not have been selected to study in Australia it was associated with Mr “X” and Mr “Y” and imputed with anti-government activity. Accordingly, the RRT concluded that the applicant was neither politically active nor had he spoken out on social issues.
11.2While accepting that the applicant may have a friend called Mr “X”, the applicant did not provide, nor was the RRT able to locate , any evidence to support his claims that Mr “X” was a human rights activist, a member of Erk or that Mr “X” worked with Mr “Y” searching for information and writing articles.
11.3The applicant’s evidence of the events during his return to Uzbekistan in October 2005 was not credible. His evidence was also contradictory. The RRT did not accept that the applicant visited Mr “X” or that he was followed and detained. The RRT did not accept that the applicant was mistreated or that false documents were planted on him. In particular, the RRT did not accept that the applicant would have been permitted to legally leave Uzbekistan if he had been investigated and interrogated by the militia.
12.The RRT did not accept that the applicant was part of the two social groups that he posited, both of which involved human rights activism, because it found the applicant was not involved in political activity.
13.The RRT did not accept that he would be imputed with a political opinion simply because he studied in Australia. The RRT also did not accept that he applicant would face persecution because he returned to Australia or because he applied for a protection visa in Australia.
14.Finally, the RRT considered and rejected the possibility that the applicant would face persecution because of his ‘Tajik’ ethnicity.”
Applicant's claims
In the protection visa application and the statutory declarations, together with oral evidence before the Tribunal, where the Applicant was represented by a solicitor and migration agent, the Applicant's primary claim related to events which allegedly occurred when he was in Uzbekistan for a holiday from 9 August 2005 to 31 October 2005. The Applicant claimed he was persecuted because of imputed political opinion and because of his friendship with Mr “X”. Mr “X” was a member of a banned opposition party named "ERK" and allegedly associated with a human rights activist namely Mr “Y”, a journalist with a radio station who had been imprisoned for publishing information critical of the Uzbek government.
The First Respondent in the submissions filed 3 January 2007 accurately set out a summary of the claims as follows:-
“5.1He visited Mr “X’s” home in Andigon on 10 October 2005 after he was unable to contact Mr “X” by mobile telephone. He was told by Mr “X” mother that Mr “X” had ‘disappeared’ on 17 May 2005; CB 189.
5.2On his return from Andigon, he was followed by militia officers from the Namangan Regional Administration of the Ministry of Internal Affairs then detained on 13 October 2005 for four days, interrogated and mistreated. Militia officers asked him about Mr “X’s” whereabouts, tried to extract a confession from him on charges of ‘instigating a threat to social security and social order’ and planted falsified evidence in his bag: CB 189-90.
5.3He was released when his father’s friend ‘B’ bribed the officers on behalf of the applicant’s family. ‘B’ then informed the applicant he had been blacklisted and would be under regular surveillance, and advised him to leave the country” CB 190.”
The further claims I am satisfied were accurately set out by the First Respondent in the contentions as follows:-
“6.The applicant claimed that he would be arrested and tortured again for a confession. He feared arrest because of his association with Mr “X” despite his minimal involvement with Mr “X”: CB 190.
7.The applicant also generally claimed that he would face persecution because the current government targeted politically active western minded and western educated young people: CB 190.
8.Finally, the applicant claimed that he may face persecution because he returned to Australia and also because he applied for refugee status. He also made a passing claim that he would not get a job because he was ‘Tajik’.”
Further amended application
In the further Amended Application dated 27 March 2007 the application relies upon the following grounds which I am satisfied have been fairly and accurately summarised in the First Respondent's further contentions as follows:-
“6.1A breach of s.424A of the Act and a failure to provide procedural fairness in not giving the Applicant particulars concerning the RRT’s adverse credibility findings.
6.2There was no evidence for the RRT to conclude that the Applicant would not have been selected to study overseas and be supported by the Uzbekistan government if he was a known associate to a member of Erk.
6.3A breach of s.424A of the Act in not giving the Applicant further notice of the RRT’s inability to find some reference to “Mr X” or that it was not accepting the evidence regarding “Mr X”.
6.4There was no evidence for the RRT to conclude that the Applicant’s ability to depart Uzbekistan suggested he was not on the blacklist.
6.5Either the s.425 notice inviting the Applicant to the hearing or the s.424A letter sent on 24 February 2006 was invalid and hence the RRT failed to comply with the procedural requirements of the Act.
6.6The RRT failed to give the Applicant notice specifying the contradictions in his evidence regarding the telephone contact with “Mr X”.
6.7The RRT failed to consider the Applicant’s statutory declarations and legal submissions dated 24 March 2006.”
Ground 1
Submissions
The Applicant submitted that the Tribunal, although referring to the statutory declarations and other documents under the heading ‘Claims and Evidence’ only undertook brief questioning of the Applicant at the hearing. Reference was made to the supplementary Court Book which reveals that transcription of the hearing only occupied 14 pages. The hearing commenced at 9 am and concluded at 10.34 am. It was submitted the Applicant had been denied procedural fairness and the findings concerning the Applicant's credibility should have been put to the Applicant in a s.424A notice.
The First Respondent submitted that the findings on credibility could be properly regarded as the function of the decision-maker "par excellence" (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423)
Whilst it was acknowledged that s.424A of the Migration Act requires a Tribunal to give the Applicant particulars of information that would be the reason, or part of the reason, for affirming the decision under review and explain the relevance and invite the Applicant to comment on it, this does not mean that the section applies to the present application. Specifically, it was submitted that the section does not apply to information not specifically about the Applicant or that the Applicant gave for the purpose of the application, or that is non‑disclosable (see s.424A(3); SZEEU v Minister for Immigration and Multicultural Affairs [2006] FCAFC 2).
Further it was submitted that s.424A does not apply where the relevant information is regarded as "relevant, relatively minor and unimportant in the scheme of things" or when the information is not so integral to the reasoning process rejecting the Applicant's claims as to require as a matter of fairness that the Applicant be told that information and why it was relevant to the review (see VAF v Minister for Immigration & Multicultural &Indigenous Affairs [2004] FCAFC 123).
In the present case it was submitted the Tribunal dealt with the material provided by the Applicant and then made an adverse credibility assessment. Accordingly, that assessment did not give rise to an obligation to issue a notice under s.424A to request comments from the Applicant about the Tribunal's concerns regarding the Applicant's evidence. No error was evident of the kind identified by the court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 79 ALJR 1009 (SAAP). It was submitted that inconsistencies at credibility findings were made by the Tribunal arising from the evidence given by the Applicant for the purpose of the application for review and that, accordingly, there was no obligation of a Tribunal to put this information to the Applicant for comment.
The First Respondent also relied upon s.422B of the Migration Act as providing "an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with" (see Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62).
Reasoning
In my view this ground should fail. The credibility findings which were made by the Tribunal set out in brief earlier in this judgment were findings reasonably open to the Tribunal free of jurisdictional error. They were not findings concerning anything other than an assessment of the Applicant's evidence set out in documentary material and in oral evidence before the Tribunal. The adverse credibility findings were indeed findings by the Tribunal and to be properly regarded as a function of the Tribunal "par excellence". The basis of those findings does not constitute "information" for the purpose of s.424A and in my view the submissions of the First Respondent in relation to this issue are correct.
I am not satisfied that there is any obligation under s.424A to request comments in relation to the Tribunal's significant adverse credibility findings in relation to the Applicant. It is clear in my view that the findings of the Tribunal arose directly from the evidence provided by the Applicant for the purpose of the application and, accordingly, the Tribunal was not obliged to put the information to the Applicant for comment in a s.424A letter. Accordingly, the ground fails.
Grounds 2 and 4
Submissions
The Applicant claimed in support of these grounds that there was simply no evidence which would enable a Tribunal to conclude, as it did, that "it is difficult to accept that the Applicant would have been selected for a prestigious opportunity to study overseas." It was submitted no information was cited concerning that finding. Further, it was argued that the finding about the Applicant's ability to leave Uzbekistan legally was also not the subject of any evidence identified by the Tribunal.
The First Respondent submitted that the no evidence ground would only amount to jurisdictional error where the fact for which there is no evidence is a jurisdictional fact; that is, the relevant fact being the attainment of satisfaction for the purpose of s.65 of the Migration Act (see SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402). It was submitted the relevant test is that there is no evidence to support the Tribunal's finding that it could not be satisfied that the Applicant was not persecuted for reasons of his political beliefs (actual and imputed) or membership of a particular social group. It was submitted that in this instance it is not correct to submit that there was simply no information before the Tribunal from which it could realistically fail to be satisfied.
It was submitted by the First Respondent that s.65 of the Migration Act provides that the Tribunal must be satisfied the relevant criteria had been met. In the event that there is no evidence either way, then it was submitted the decision-maker would not be satisfied. In the present case the Tribunal's findings that it was difficult to accept that the Applicant would have been selected to study in Australia if he had had the history of association with people involved in anti-government activity which had been claimed, or the ability of the Applicant to leave Uzbekistan legally, suggested that he was not as found by the Tribunal on any "black list" (Court Book p.201). These were logically probative on the material before the Tribunal and that there was no error demonstrated.
Reasoning
In my view, the grounds 2 and 4 should fail. It is not required of the Tribunal to identify precise information for conclusions of this kind. I accept, as submitted by the First Respondent, that the Tribunal needs to be satisfied that the relevant criteria has been met. It is entitled to consider the history, which is undisputed, of the Applicant undertaking study in Australia and leaving Uzbekistan legally when those facts were not disputed and were evident on the history and material before the Tribunal. It is not for the Tribunal to then further explore those matters and it is in my view open to the Tribunal to draw appropriate adverse conclusions. The introduction of the description of "prestigious opportunity" in my view was superfluous and unnecessary. It does not however detract from the fundamental proposition that the Applicant was able to undertake study in Australia and left Uzbekistan legally. Those findings reasonably open to the Tribunal remain unaffected by any jurisdictional error. Accordingly, these grounds should fail.
Ground 3
Submissions
This ground itself would appear to raise the suggestion that if the Tribunal explored this issue after the s.424A letter, and it became part of the reason for its decision, then a further notice should have been given by the Tribunal to the Applicant.
The First Respondent submitted that there was no obligation on the Tribunal to provide a further s.424A notice. It is not the responsibility of the Tribunal to make the Applicant's case for him according to the First Respondent's submissions (see Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170). Further, it was submitted that the Tribunal had forwarded a s.424A letter on 24 February 2006 which clearly stated it was unable to locate any reference to Mr “X” in published sources and expressed the Tribunal's concern that the absence of any information on someone who was a prominent figure cast doubt on whether Mr “X” existed or whether the Applicant was telling the truth.
It was submitted the Tribunal had regard to the Applicant's response to the s.424A letter and was not obliged to write a further s.424A letter on the grounds that the Tribunal's thought processes about the Applicant's response to its letter should not be regarded as "information" that needed to be disclosed to the Applicant (see Paul v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 113 FCR 396 at [95]).
Reasoning
It is clear in my view that the Tribunal's s.424A letter squarely raises its concerns in relation to the existence and identity of Mr “X”. Having raised those concerns and received a response from the Applicant, the Tribunal was then entitled to ask brief questions concerning that issue and whilst it may be accepted that the issue was not explored in great detail, the fact remains that the Tribunal then embarked upon its decision-making process where the issue had clearly been agitated and raised in its s.424A letter. In those circumstances, having raised the issue and received a response, I can see no error of law in the manner in which the Tribunal then reached its adverse conclusion concerning this part of the Applicant's claim. I accept as submitted by the First Respondent there was no further obligation to write another s.424A letter dealing with the same issue, even though the issue was further agitated by the Applicant in a response and briefly considered in oral evidence before the Tribunal. Accordingly, this ground should fail.
Ground 5
Submissions
This ground raised what appears to be a somewhat novel submission arising out of the chronology set out earlier in this judgment. It is claimed that by sending a hearing notice dated 27 February 2006 after the s.424A notice dated 24 February 2006, which gave the Applicant until 21 March 2006 to respond, the Tribunal had erred. Specifically reference was made to the wording of the s.424A letter (Court Book p.89) where the Tribunal states:
“The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.”
It was argued that the preamble to the s.424A letter contradicts the preamble to the hearing notice and that consequently no meaningful invitation was given to the Applicant to appear. This was confirmed by what was described as the brief transcript of the evidence. It was submitted the Tribunal erred in law by sending a s.425 notice at that time as s.424C(2) of the Migration Act "prevented the issue of such a notice."
The First Respondent submitted that there was no error arising out of this ground. Reference was made to the wording of the s.425 letter and it was submitted there is no conflict between that invitation and the request for comment on information set out in the s.424A letter.
The First Respondent referred to SAAP which indicates that s.424A operates "before, during and after a hearing".
Section 424C(2) of the Migration Act, the First Respondent submitted, operates where the Applicant does not provide comments before the time for doing so, and provides the Tribunal with authority to make a decision on the review without "taking any further action to obtain the Applicant's views on the information". It was argued that there is nothing in the legislation to prevent the Tribunal from proceeding to issue an invitation to hearing, and that the regime for a Refugee Review Tribunal hearing is different from the regime for a Migration Review Tribunal hearing (see Minister for Immigration and Multicultural and Indigenous Affairs v Sun [2005] FCAFC 201 at [46] per Tracey J.)
It was submitted by the First Respondent that ss.424A and 425 were provisions that operate in accordance with their terms and prescribe separate procedural regimes. There may be circumstances where a new issue arises after the hearing has been held where s.424A(1) applies requiring the Tribunal to give an Applicant the opportunity to comment. In the present case, however, the Applicant was granted a hearing by the letter dated 27 February 2006 to appear on 30 March 2006. Accordingly, the Tribunal did not act to the detriment of the Applicant by notifying him of a hearing date in correspondence which predated the last date for delivery of the Applicant's response to the s.424A letter. Even if there was a technical error, it was submitted that relief should be withheld on discretionary grounds as there was no practical unfairness suffered by the Applicant.
Reasoning
In my view s.424A provides a discrete obligation to the Tribunal which in this instance has been discharged, namely, seeking comment from the Applicant concerning certain information. The mere fact that the letter is dated 24 February 2006 and provided for a response by 21 March 2006 does not of itself prevent or prohibit a Tribunal from then exercising the powers it undoubtedly has pursuant to s.425 to invite the Applicant to appear. Indeed, the invitation to appear, although dated 27 February 2006, referred to a hearing date of 30 March 2006 by which time the Applicant's response was to be received. Had the response conclusively dealt with the Tribunal's concerns, then I accept as submitted by the First Respondent the Tribunal may then have decided to cancel the hearing.
I can see no practical injustice arising in circumstances where the Applicant has received both a s.424A letter and an invitation to hearing and then by the time the hearing has occurred, has been able to rely upon his response to the s.424A letter and provide further material. On my reading of the relevant provisions, including s.424C, I do not see any prohibition in the legislation which would apply to the Tribunal in these circumstances which would have the effect of preventing the Tribunal from issuing an invitation to hearing after it has forwarded a request for a response for information pursuant to s.424A.
If the Tribunal scheduled a hearing which predated the date upon which the response was to be provided by the Applicant to the s.424A letter, then I accept further as submitted by the First Respondent, that in those circumstances the Tribunal would have been at liberty to convene a further hearing.
If the legislature had intended to require a Tribunal to desist from issuing a hearing invitation until after a response to a s.424A letter had been received then the legislation could easily have made provision for a prohibition of that type. In my view it has not done so and, accordingly, I can see no error arising out of the chronology of events relied upon by the Applicant. Accordingly, this ground should fail.
Ground 6
Submissions
Although not pursued with vigour, this ground appears to claim that the Tribunal was obliged to put to the Applicant contradictions in his evidence regarding the telephone contact with Mr “X”.
The First Respondent submitted that any inconsistency in relation to the alleged telephone contact arose during the hearing.
Reference was made to the supplementary Court Book and the transcript (page 12 line 3 and page 13 lines 2-4). This issue was squarely raised before the Tribunal and was clearly information provided by the Applicant in support of the application and s.424A(3)(b) according to the First Respondent's submissions applies. This is a further issue where the Applicant's credibility was raised and he was asked to comment, and the Tribunal then made its adverse findings. In the circumstances the Applicant is not entitled to think that claims of attempted telephone contact were not matters which the Tribunal would consider.
It was submitted that applying the authority of SAAP and SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 there was no error.
Reasoning
This ground should fail. It is clear from a proper reading of the transcript that the issue concerning the attempted telephone contact with Mr Nazirov was agitated before the Tribunal. It was clearly part of the information provided in support of the application and I am satisfied that s.424A(3)(b) of the Migration Act applies. The Applicant in this instance, as a result of the exchange which appears in the transcript, would be well aware that there was an issue of concern to the Tribunal regarding the attempted telephone contact. Applying the authorities to which the First Respondent referred and accepting the submissions of the First Respondent, I accept that there is no error established in this ground.
Ground 7
Submissions
The Applicant claimed that the Tribunal failed to consider the statutory declarations and submissions dated 24 March 2006, and by doing so had therefore committed jurisdictional error.
The First Respondent submitted that the Tribunal made detailed reference under the heading ‘Claims and Evidence’ (Court Book pp.192-194) to the declarations and submissions. Reference was made then to the Tribunal's findings and reasons where it dealt in detail with the Applicant's claims, including those claims which appeared in submissions and the declarations. It was submitted by the First Respondent that the Applicant effectively seeks merit review which is impermissible.
Reasoning
In my view the Tribunal is not required in its findings to set out each and every item in the detailed submissions and declarations. It is sufficient to refer to those matters under the heading ‘Claims and Evidence’ and then proceed as it has done in the present case to consider those matters as part of its overall findings and reasons. I can see no jurisdictional error arising out of this ground. Accordingly, this ground should fail.
Conclusion
It follows, for the reasons given, that the application should be dismissed with costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 22 May 2007
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