MZXPK v Minister for Immigration - [2008] FMCA 1273

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXPK & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1273

MIGRATION – Applications by husband and wife for judicial review – wife’s application remitted to Refugee Review Tribunal by consent – interrelationship of applications of husband and wife – consideration of effect of remitter of wife’s application.

Migration Act 1958, ss.36(2)(a), 36(2)(b), 36(2)(b)(ii), 417, 425

SZJBH v Minister for Immigration and Citizenship [2007] FMCA 1441
Sunarso v Minister for Immigration and Multicultural Affairs [2000] FCA 57
V120/00A v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 264
NAEA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 341
SZJKO v Minister for Immigration and Citizenship [2008] FMCA 370
SZEPZ v Minister for Immigration and Multicultural Affairs [2006] 159 FCR 291

First Applicant:

MZXPK

Second Applicant:

MZXPL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1749 of 2007

Judgment of:

Burchardt FM

Hearing date:

6 August 2008

Date of Last Submission:

6 August 2008

Delivered at:

Melbourne

Delivered on:

22 September 2008

REPRESENTATION

Counsel for the Applicants:

Mr G. A. Hill

Solicitors for the Applicants:

Asylum Seeker Resource Centre

Counsel for the Respondents:

Mr R. C. Knowles

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed 21 December 2007 be dismissed.
The First Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
The Transcript of the proceeding not be released save to the legal representatives of the parties without order of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1749 of 2007

MZXPK

First Applicant

MZXPL

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The First Applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 28 November 2007 affirming a decision not to grant the First Applicant a protection visa.
Although various matters were articulated in the original application to this Court filed on 21 December 2007 and in the First Applicant's contentions of fact and law filed on 23 July 2008, the issues that remain for the Court are:
(a)whether the fact that the decision in relation to the Second Applicant was quashed by consent orders made on 4 July 2008 vitiates in some way the Tribunal's decision because the Tribunal's decision in relation to the Second Applicant involved no decision at all at law;
(b)whether the Tribunal erred in its conclusion of the First Applicant's claims under s.36(2)(b) of the Migration Act 1958 (“the Act”) in such a fashion as to constitute jurisdictional error.
For the reasons that follow, I have concluded that neither of the matters raised by the Applicants gives rise to jurisdictional error on the Tribunal's part and the application must be dismissed.
It should be noted that counsel for the Applicants expressly abandoned two other matters which might have been thought to have been in controversy. Counsel expressly confirmed that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FMCA 1273
Decision Date: 22 September 2008

CaseChat Overview and Summary

In the case of MZXPK v Minister for Immigration, the applicants sought judicial review of a decision made by the Tribunal regarding their claims for protection visas. The applicants argued that the Tribunal's decision was flawed due to procedural errors and a failure to properly consider the evidence presented. The Federal Court was tasked with determining whether the Tribunal's decision was legally sound and whether there was any procedural unfairness that warranted the Court intervening.

The primary legal issue before the Court was whether the Tribunal had properly considered the evidence provided by the applicants and whether the failure to believe their claims led to a jurisdictional error. The Court had to assess the impact of the Tribunal's reliance on the evidence from one applicant to discredit the other, and whether this amounted to a failure to provide a fair process. Additionally, the Court needed to determine if the failure to consider the evidence properly resulted in a decision that was so flawed as to be invalid.

The Court found that while the Tribunal's decision was legally invalid, it did not necessarily mean that the Tribunal's reasoning or the steps taken were also invalid. The Court emphasised that the Tribunal had before it the materials from both applicants, and thus, the failure to believe the applicants did not vitiate the Tribunal's reasoning to the extent of causing jurisdictional error. The Court held that the procedural fairness of the Tribunal's process was not compromised, as the evidence from both applicants was indeed considered. The Court also noted that the inconsistency in outcomes between the two applicants was a legislative consequence and not a procedural defect.

The Court dismissed the application, holding that neither of the applicants' arguments was substantiated. The Court ordered that the application be dismissed with costs, and that the costs be paid by the first applicant in the sum of $5,000.00. The Court also directed that the transcript of the proceedings not be released without its order, except to the legal representatives of the parties.

Orders

Orders of the court

The application filed 21 December 2007 be dismissed.

The First Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

The Transcript of the proceeding not be released save to the legal representatives of the parties without order of the Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In SZEPZ v Minister for Immigration and Multicultural Affairs [2006] 159 FCR 291 at [39], the Full Court of the Federal Court constituted by Emmett, Siopis and Rares JJ stated:“An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.” (Emphasis added.) While that decision involved a different set of circumstances to those in this case, the general proposition I have emphasised seems to me to be applicable. In this instance, the Tribunal when it determined the First Applicant's claim had before it a substantial amount of material from the Second Applicant. It is simply wrong in fact to assert that the Tribunal did not pay regard to the materials that the Second Applicant had put before the Tribunal. I accept the submission of the First Respondent that while of course the Applicants are correct to say that the decision of the Tribunal was in law no decision at all, nonetheless it does not vitiate the Tribunal's reasoning in such a fashion as to give rise to jurisdictional error. It should be noted that while the Tribunal failed to believe both Applicants in relation to the very important matters that were alleged to have occurred in 2004, this failure to believe them arose precisely because the materials that the Second Applicant wished to put were in fact ventilated before the Tribunal. It should be noted that the basis upon which the matter has been remitted to the Tribunal in respect of the Second Applicant is a limited one. What the First Applicant seeks in substance is that his matter be remitted for further hearing at the same time as the Second Applicant's matter. While it is of course possible that the course of conduct now embarked upon may produce an outcome where the Second Applicant is believed by the Tribunal and the findings of the Tribunal are therefore obviously different to those of the Tribunal under review here, that is an inconsistency produced by operation of the legislation. It cannot be avoided. Further it may well be that in the event that the Second Applicant is successful, the First Applicant might be able to obtain a further visa either under s.36(2)(b) or indeed simply as her spouse. This is in many ways a troubling case and it may be hoped that the Minister would consider the exercise of his powers under s.417 to defer any deportation of the First Applicant until the result of the proceeding in respect of the Second Applicant is known. Nonetheless, I do not think either of the matters advanced by the First Applicant are made out and accordingly the application will be dismissed with costs.

Ratio Decidendi

Legal Principle Established

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