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

1. The application filed 21 December 2007 be dismissed. 

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

3. 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

1. 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. 

2. 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. 

3. 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. 

4. 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 the alleged jurisdictional error arising out of failure to consider the links between the two Applicants' cases was abandoned and likewise expressly abandoned any point arising out of the operation of s.36(2)(a) of the Act.

Introduction

1. The Applicants are husband and wife.  They claimed refugee status on a number of bases. 

2. Both Applicants are Turkish Kurds of the Alevi religion.  The First Applicant is a relatively distant cousin of an activist in the PKK.  The First Applicant also claimed that he was the subject of persecution on the basis of his political opinions. 

3. In essence, the First Applicant claimed that three incidents had occurred which exemplified persecution of him by the Turkish Government. 

4. The first was in 1996 when he said he was taken away by the authorities for some 13 to 15 days and beaten and tortured.  He said he was dumped and left for dead. 

5. The second incident occurred in 1999 to 2000 when the First Applicant was living in Ankara.  He claimed he was the subject of harassment while working on building sites because he was Kurdish and was hit by the police a number of times. 

6. The third incident was said to have taken place in March 2004 at the celebrations of Newroz in Ankara.  Both Applicants said they were taken from their home in the middle of the night by police and separated.  The First Applicant said that he was mistreated but released the next day.  He said he was warned that he would not survive if brought in again. 

7. The Second Applicant's materials were in part corroborative of the claims of the First Applicant, most particularly in relation to the first and third incidents insofar as she was involved with them. 

8. Both Applicants completed a form 866 application for a protection class XA visa.  They both completed parts (B) and (C) of the form but did not complete part (D). 

9. Part (B) of the form (see CB 45 to 56) was plainly completed by the two Applicants.  In fact it is the same document in both applications (see Wife’s CB 40 to 51). 

10. In part (B), in my opinion, all that was included were the names of the persons included in the application. 

11. Both of the Applicants completed part (C) of the form and submitted their own discrete claims to refugee status. 

12. Neither completed part (D) which is, as Exhibit A1 shows, the part of the visa form for persons who wish to make an application as a family member of a refugee.  

13. The matter has had a lengthy history of hearings and referrals before the final decisions brought down by the Tribunal on 28 November 2007. 

14. There were separate decisions given in respect of both Applicants and it is fair to summarise the Tribunal's conclusion as being that the Tribunal did not believe the evidence of either Applicant as to the forms of treatment which they asserted. 

15. The Tribunal expressly found that the alleged abductions in 1996 and 2004 never occurred.  The Tribunal further found that the family connection with the PKK member was not sufficient to grant refugee status and that any difficulties that occurred on the building sites in Ankara, if they occurred, did not have a Convention nexus. 

The Nature of the Applications Made and the Operation of Section 36(2)(b) of the Act

1. It is convenient to address this aspect of the matters raised first. 

2. Much of the argument in the material presented concerned the character of the application made by the First Applicant (and indeed the Second Applicant).  Counsel for the Applicants submitted that each of the Applicants had made not only a refugee application but also a family member application. 

3. It was submitted that the Court should approach the matter in a relatively informal way and see whether there had been substantial compliance by the Applicants with the necessity to articulate the family member claim. Detailed attention was paid to the relevant subsections of the Act and the Migration Regulations 1994 (“the Regulations) as to the requirements in this regard.

4. In the ultimate, however, I think that this is a point that can be disposed of relatively briefly.  It is quite clear from the part (B) application filled out by the parties that those details merely identified, as the form required, the persons who made the application for a class XA visa were.  Part B (see CB 45) clearly in my view does not of itself give rise either to a refugee or family member claim.  That is left to parts (C) and (D). 

5. Each of the Applicants filled out part (C) and articulated clearly comprehensible bases on which they asserted that they were persons to whom a refugee obligation applied.  Neither completed part (D). 

6. While I accept that there is room for some debate as to quite what the state of authority is, in the ultimate I accept the submission for the First Respondent that the trend of authority is clearly to the effect that refugee claims under s.36(2)(a) are disjunctive from claims as a family member under s.36(2)(b) of the Act.

7. In SZJBH v Minister for Immigration and Citizenship [2007] FMCA 1441 (“SZJBH”), Driver FM referred to decisions of Katz J in Sunarso v Minister for Immigration and Multicultural Affairs [2000] FCA 57 at [49] and [59]-[60], Kenny J in V120/00A v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 264 at [59]-[60], and Gyles J in NAEA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 341 at [13]-[14].

8. All of those decisions were supportive of the First Respondent's submission here.  At [18], Driver FM went on to say:

   “All of those decisions were made by single judges of the Federal Court in the original jurisdiction of that Court. Although not strictly binding on me, judicial comity requires that I follow them unless they are clearly wrong. I am unable to say that they are clearly wrong. Although not well drafted and although the precise terms of the criteria in Schedule 2 to the Regulations have changed somewhat in recent years, in general terms, the apparent intention of the criteria is to give effect to s.36 of the Migration Act which divides visa claimers into those who assert protection obligations and those who ride on their coat-tails. One has to be one or the other. I do not pretend to understand why one has to be one or the other and why one cannot be both or change one's position prior to a decision. The Tribunal's decision on the application for protection visa criteria was consistent with the presently available authorities and, hence, I am unable to conclude that it was infected by jurisdictional error.”

9. In SZJKO v Minister for Immigration and Citizenship [2008] FMCA 370 (“SZJKO”), Scarlett FM revisited the same issue.  He referred to the decisions of Kenny J and Gyles J which I have already detailed with approval.  Although the particular result in SZJKO was favourable to the Applicants, insofar as his Honour's reasons are applicable to this case, they plainly support the approach adopted by Driver FM in SZJBH. 

10. With the greatest of respect, I do not agree with Driver FM that decisions of the Federal Court are not binding upon Federal Magistrates, if that is what his Honour intended to say in his decision.  I think that the decisions of the Federal Court are binding on me, and the only hesitation I would have in applying them is that it is not clear that they state perhaps quite in terms the conclusions that Driver FM reached. 

11. Even if I am wrong in this regard, I would be required to follow the decisions of Driver FM and Scarlett FM unless I thought they were clearly wrong. I do not think so. With respect, I entirely agree with Driver FM's conclusions, both as to the effect of the Regulations and as to a state of perplexity as to why it is felt the Regulations should be as they are.

12. From this, it follows inevitably that I find that the First Applicant did not make an application as a family member of the Second Applicant, she being an Applicant for refugee status. 

13. That this is so is perfectly clear, both from the nature of the application that the First Applicant filed and the materials that he filed in support of it. 

14. While it is true that the Tribunal made a glancing reference at the end of its reasons for decision (CB 44) to the fact that the First Applicant was not entitled to a family member visa, in effect the entirety of its judgment was taken up with consideration and disposition of the First Applicant's refugee claims.  That this was so was inevitable because his application was only pressed as a refugee. 

15. This conclusion itself leads to the proposition that the issues of construction of s.36(2)(b) pressed in argument before me are in the ultimate irrelevant. I will, however, nonetheless turn to them.

16. It was submitted by counsel for the Applicants that this proceeding must be remitted to the Tribunal because a failure to do so would in effect stymie any application pursuant to s.36(2)(b) by the First Applicant as a family member.

17. It was submitted that the Court should take a purposive approach to the interpretation of s.36(2)(b) and in particular, the requirement in placitum (ii) thereof that the person to whom convention obligations are owed "holds a protection visa".

18. While, as I observed to counsel for the First Respondent in argument, the Minister's submission creates an unfortunate situation where, as would be very possible, a family member is seeking a visa at a time when a person who may very well be ultimately found to be a refugee has not had their application determined. In such circumstances, it appears that on a literal reading of s.36(2)(b)(ii) an application by a family member could never succeed.

19. In the ultimate, however, there is force also in the practical difficulty that arises in the interpretation for which the Applicants contended. If, as it were, no application by a family member can be determined ever until the refugee application made under s.36(2)(a) has been finally and conclusively determined, a person would be deemed to hold a visa that they had never in fact held and potentially for a very long period of time.

20. I think that s.36(2)(b)(ii) is not devoid of certainty. It requires that in order for an application by a family member to proceed, there must be the spouse or dependant of a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa. This means that that visa must be already held by the relevant refugee spouse at the time that the Minister (or more realistically the delegate) makes their decision in respect of the family member. The use of the present tense indicative is easy to understand and in my opinion it means what it says.

The Failure of the Tribunal to Consider the Second Applicant's Case

1. In this respect, the Applicants submitted that the remittal by consent of the decision of the Tribunal in relation to the Second Applicant because of the failure to put to her its doubts about her in accordance with s.425 of the Act having regard to SZBEL meant that as a matter of law, the application had never been considered at all. 

2. It was therefore submitted that given the interrelationship between the two Applicants' claims, it must necessarily follow that the Tribunal had not had regard to relevant matters and therefore the decision was affected by jurisdictional error. 

3. The First Respondent's written contentions of fact and law conceded that the fact that the matter had been remitted meant that there was in law no decision.  The First Respondent submitted however that this was not in any sense a vitiating matter in respect of the decision in respect of the First Applicant. 

4. 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.)

5. 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. 

6. 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. 

7. 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. 

8. 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. 

9. 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. 

10. 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. 

11. 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. 

12. 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.

Conclusion

1. 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.

2. 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. 

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate:  Brooke Evans

Date:  22 September 2008