MZXNP v Minister for Immigration

[2007] FMCA 705

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXNP v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 705

MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – jurisdictional error asserted in general terms but no specific jurisdictional error identified – application dismissed.

Migration Act 1958, ss.424A, 424A(3)(b)

SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034
SZHIB v Minister for Immigration and Multicultural Affairs [2006] FCA 611
SZFXG v Minister for Immigration and Citizenship [2007] FCA 116
NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195
MZXHY v Minister for Immigration & Citizenship & Anor [2007] FCA 622

Applicant: MZXNP

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 1527 of 2006

Judgment of: Burchardt FM

Hearing date: 2 May 2007

Date of last submission: 2 May 2007

Delivered at: Melbourne

Delivered on: 22 May 2007

REPRESENTATION

Counsel for the Applicant: In person, assisted by an interpreter

Counsel for the Respondents: Mr R.C. Knowles

Solicitors for the Respondents: Clayton Utz Lawyers

ORDERS

1. The name of the First Respondent be changed to the “Minister for Immigration and Citizenship”. 

2. The application filed 5 December 2006 be dismissed.

3. The Applicant pay the First Respondent’s costs, fixed at $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1527 of 2006

MZXNP

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed on 5 December 2006 the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 30 October 2006.  The grounds specified in that application are:

   i)the decision is affected by a jurisdictional error,

   ii)further grounds and particulars to be provided upon provision of legal advice which is pending. 

2. The Applicant by that application sought orders designed to quash the Tribunal's decision and to remit the matter for determination according to law together with ancillary orders.  The relevant background of the matter is not controversial and is set out in the First Respondent's contentions of fact and law. 

3. The facts which I take from those contentions, (see paragraphs 2 to 2.14 of the First Respondent’s contentions) are as follows. 

4. The Applicant is a citizen of Guinea and entered Australia on

   
   

   26 April 2005. 

5. He applied for a protection visa on 3 June 2005 and claimed that if he returned to Guinea he faced a real chance of persecution by the authorities on account of his political opinion of support for the Union of Republican Forces ("URF"). 

6. On 21 July 2005 the Applicant attended an interview with a delegate of the First Respondent.  On or about 29 August 2005 the Applicant's representative lodged a written submission with the Department of Immigration and Citizenship (as it now is). 

7. On 26 September 2005, a delegate of the First Respondent refused to grant the Applicant a protection visa, and on 11 October 2005 the Applicant applied to the Tribunal for review of the delegate's decision. 

8. On 24 January 2006 the Applicant's representative lodged written submissions with the Tribunal and on 30 January 2006 the Tribunal conducted a hearing at which the Applicant was represented and gave oral evidence with the assistance of an interpreter. 

9. On 16 February 2006 the Tribunal handed down its decision dated 6 February 2006 in which it affirmed the delegate's decision not to grant the Applicant a protection visa. 

10. The Applicant applied to the Federal Magistrates Court for judicial review of the Tribunal's decision dated 6 February 2006 and on 1 August 2006 the Court relevantly ordered by consent that the Tribunal's decision of 6 February 2006 be set aside and the matter be remitted to the Tribunal for determination according to law. 

11. On 4 September 2006 the Tribunal wrote to the Applicant pursuant to s.424A of the Migration Act 1958 ("the Act").  The Tribunal invited the Applicant to comment on particulars of information which it considered would be the reason or a part of the reason for its decision.  Attached to the Tribunal's correspondence was a copy of the Tribunal's decision dated 6 February 2006. 

12. On 15 December 2006 the Applicant lodged with the Tribunal his statutory declaration of that date and on 11 October 2006 the Tribunal conducted a further hearing at which the Applicant gave oral evidence with the assistance of an interpreter. 

13. On 7 November 2006 the Tribunal handed down its decision dated 30 October 2006 in which it affirmed the delegate's decision not to grant the Applicant a protection visa. 

14. This Court made interlocutory orders by consent on 20 December 2006 which required the Applicant to file and serve any amended application by 22 February 2007 and contentions of fact and law by 1 March 2007 together with orders for a response by the First Respondent. 

15. The Applicant has not at any stage subsequent to the making of those orders filed or served any amended application or contentions of fact and law. 

16. The contentions of fact and law filed by the First Respondent on 13 April 2007 correctly, in my view, record the Tribunal's decision as being one in which it made adverse credit findings in respect of the Applicant and for that reason it dismissed his application. 

17. The First Respondent's contentions of fact and law also at paragraph 4.6 correctly submitted that the Applicant had not advanced any basis upon which he asserted that the Tribunal's decision was affected by jurisdictional error. 

18. At the hearing before me the Applicant appeared on his own behalf assisted by a French speaking interpreter.  It is apparent to me that the Applicant speaks at least enough French to make himself understood to the interpreter, and that he understood the interpreter's remarks to him.  So much was apparent from his demeanour and what he said through the translator.  I would interpolate that having some command of French I might have been of that view in any event, but it is not necessary for me to rely upon any linguistic skills that I possess.  The interpreter and the Applicant clearly understood one another as is apparent as I have said from what the interpreter said to me in interpreting what the Applicant said to her. 

19. The Applicant, it must be said, said nothing that indicated any jurisdictional error on the part of the Tribunal.  He did not identify let alone put any argument in support of the proposition that the Tribunal had entered into such error. 

20. He said that the decision had been read out for him and that he could not see what he was accused of, and that that was the reason he had come to this Court. 

21. In substance, he said that he had said the truth to the Tribunal, and that research could be done which will confirm what he said. 

22. He referred to a letter in which it was said that he had not provided any materials.  He went on to say that one of the documents that he had tabled was a declaration of his affinity to the URF signed by the general secretary of the party and he also referred to his membership card.  I will return to this aspect of the matter later. 

23. Counsel for the First Respondent first requested that the name of the First Respondent be changed to the current title of the Minister for Immigration and Citizenship.  That will obviously be done. 

24. Counsel repeated the written submission that the Tribunal's decision rested on credibility findings which were findings of fact.  I accept that submission. 

25. Very properly however, counsel did take me to one aspect of the matter that might be said otherwise to have caused concern, namely, a reference at CB 231 in part of the Tribunal's reasons for decision to a letter of 29 August 2005 from the Applicant's migration agent. 

26. At CB 231 the Tribunal stated, "By letter of 29 August 2005, by his migration agent, further evidence and submissions, and selected extracts of country information was provided.  I have taken account of these prior to drafting my below findings and reasons.”

27. The question that arose here was whether or not the 29 August 2005 letter (“the 2005 letter”) was information that attracted the operation of s.424A of the Act in the light of the decision of the Full Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”). 

28. The first submission made by counsel for the First Respondent was that while the extract at CB 231 says what I have set out above, looked at fairly the Tribunal's reasons for decision in the section running from CB pages 233-238 shows that the Tribunal in fact made credibility findings that did not rely upon the earlier letter from the migration agent. 

29. Reading the decision as a whole, there is much to support this proposition. 

30. Nonetheless, it is not necessary for me finally to determine that matter because there is an alternative basis upon which counsel for the First Respondent put the matter which I accept. 

31. Counsel for the First Respondent submitted that the Applicant in effect adopted and therefore republished the 2005 letter before the Tribunal from which this application springs, and therefore attracted the operation of s.424A(3)(b) of the Act.

32. It was submitted that the Tribunal was doing no more than reciting prior material when it made reference to the Applicant's 2005 migration agent letter.  More importantly, the letter itself is set out at CB 71.  At CB 145 there is set out a later submission advanced by the Applicant's agent dated 24 January 2006.  If one looks at that letter it is plain, as counsel for the First Respondent submitted that the January 2006 material incorporated by reference, and/or necessitated the study by the Tribunal, of the 2005 letter.  By way of indication only I refer to the following extract at CB 146:

    “As indicated in our earlier submission, the Applicant has never claimed to have a significant political profile in Guinea.”

33. There are other areas in the letter which make it clear in my view that the Applicant's 2006 submissions necessarily incorporated and/or as I have said required the Tribunal to return to and consider the earlier material contained in the 2005 letter. 

34. Counsel referred me to three cases which deal with situations that in my view are sufficiently analogous to be binding on me.  The first in time is that of SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034 (“SZDMJ”), a decision of Giles J given on 29 July 2005. 

35. In paragraphs [5] - [6] of the reasons for judgment in that case, his Honour referred to circumstances in which an Applicant had in his application for review to the Tribunal incorporated a statement in the form of a statutory declaration by the appellant. The declaration consisted of a critical examination of the reasons for the decision by the delegate of the Minister to refuse the appellant's application for a visa. In the course of the declaration the appellant referred several times to the claims that he had originally made and which were the subject of the delegate's decision. His Honour concluded that in those circumstances that appellant had clearly republished the original claims to the Tribunal and relied upon them for the purposes of the review by the Tribunal. His Honour therefore found that the exception, in s.424A(3)(b) applied. Those facts seemed to me to be indistinguishable from the facts in this case.

36. That decision predated the Full Court of the Federal Court's decision in SZEEU, but two other decisions to which counsel for the First Respondent referred me have been handed down since the decision in SZEEU. 

37. In SZHIB v Minister for Immigration and Multicultural Affairs [2006] FCA 611 Young J at [8] referred to a letter that accompanied the appellant's application for review to the Tribunal in which the appellant stated amongst other things that he did not think that the First Respondent's delegate had considered all of his claims fairly and carefully and had repeatedly in that letter referred to the claims which his Honour found must be read as a reference to detailed claims set out in an earlier statutory declaration.

38. At [23] of Young J's decision, his Honour found that the material in the appellant's protection visa application had been republished in these circumstances before the Tribunal.  His Honour found that:

    "the appellant's letter incorporates, in my view, the substantive claims made in the appellant's statutory declaration which supported his application for protection visa.  It follows that the information in the protection visa application became information given by the appellant to the Tribunal within the meaning of subsection (3)(b) of s.424A.  This view is supported by the authorities". 

39. His Honour went on to refer to a number of cases including SZDMJ. 

40. Finally, counsel for the First Respondent referred me to the decision of Cowdroy J in SZFXG v Minister for Immigration and Citizenship [2007] FCA 116 at [29]–[30] and [32]-[33]. It is sufficient for these purposes to say that the facts disclosed by those extracts are in my view relevantly indistinguishable from the facts applying to the 2005 letter in this case for the reasons I have earlier given, and that Cowdroy J followed the earlier decisions of Giles J in NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 and Young J in SZHIB. 

41. In these circumstances I accept the submissions for the First Respondent that the earlier material was republished by the Applicant and that therefore any question of the operation of s.424A is met by the exception contained in s.424A(3)(b) of the Act.

42. In response to my inquiry, counsel for the First Respondent confirmed my own impression that there was no reference in the Court Book to any letter from the URF or to a membership card possessed by the Applicant ever having been tendered to the delegate or to the Tribunal in either of the two Tribunal hearings that have occurred. 

43. Counsel took me to CB 111 in the last paragraph.  In that paragraph the delegate who considered the Applicant's application stated, "The Applicant's description of his URF membership card is also of concern.  While unable to proffer the document ..."

44. There is also a reference at CB 236 in the reasons for decision of the Tribunal to some correspondence in the fourth paragraph on that page, but that is not consistent with the sort of documentation the Applicant described to the Court at this hearing. 

45. There is further at CB 148 in the letter written by the Applicant's agent on 24 January 2006 to the Tribunal at paragraph 8 which suggests that the Applicant did not possess his party membership card because the letter states, "It is not reasonable to expect the Applicant to recall the precise format of his URF ID card after a period of three years." 

46. Counsel also referred to CB 23 which is an extract from the Applicant's application for a visa, in which the Applicant stated, "My URF membership card is still in Guinea.  I don't know if I will be able to get it sent to me." 

47. I gave the Applicant a quarter of an hour or more to consider what he might wish to put by way of reply. 

48. Relevantly he confirmed he knew he had supplied documents for his file but it became apparent from an answer given by the Applicant to a question from the Court that the Applicant's true position was that these documents, that is to say the membership card and the letter from the URF, were not ever given to the Tribunal, but were according to him given to his solicitor at the Asylum Seekers Resource Centre, who photocopied them. 

49. It seems surprising to say the least that that body did not see fit to incorporate these documents in the materials that it supplied to the Tribunal on the Applicant's behalf. 

50. In any event, no application has been made by or on behalf of the Applicant to seek to put any further material of this sort before this Court.  The Court does not have the inquisitorial function that the Tribunal does.  It conducts inter partes proceedings.  While it is obviously important to give an Applicant every opportunity to put their case, it is not the Court's position to conduct the case for the Applicant.  Accordingly, the best I can say is that while there may or may not have been documents of the character asserted by the Applicant, they were not before the Tribunal and there has been no application in any way to bring them before this Court. 

51. Even if there were such application, it would not in any event be admissible (see MZXHY v Minister for Immigration & Citizenship & Anor [2007] FCA 622).

52. The Applicant has not himself articulated a single ground that asserts jurisdictional error in any way at all, let alone within the confines of what jurisdictional error has been held by the authorities to be. 

53. The Applicant in substance has asserted that he told the truth to the Tribunal and that he should not be criticised in the fashion that he perceives the Tribunal to have criticised him. 

54. That criticism at its highest amounts to an assertion that the Tribunal came to a wrong conclusion of fact in considering his evidence, but as counsel for the First Respondent rightly points out that does not constitute jurisdictional error. 

55. There being no jurisdictional error asserted and certainly still less made out, it follows that the application must be dismissed.  There will be orders giving effect to that conclusion together with orders that the Applicant pay the costs of the First Respondent and that the name of the First Respondent be changed to the Minister for Immigration and Citizenship. 

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate:  Brooke Evans

Date:  22 May 2007