MZXTQ v Minister for Immigration
[2008] FMCA 1692
•23 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXTQ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1692 |
| MIGRATION – Application for judicial review – alleged jurisdictional error alleged failure by Tribunal to consider particular social group asserted by Applicant – consideration of recent Full Court Federal Court decisions. |
| Migration Act 1958, ss.424, 424B, 425, 441A |
| SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZIOZ v Minister for Immigration and Citizenship [2007] FCA 1870 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 SZLWQ v Minister for Immigration and Citizenship [2008] FCA 1406 SZBQS v Minister for Immigration and Citizenship [2008] FMCA 812 SZIAR v Minister for Immigration and Citizenship [2008] FMCA 1348 Abbasi v Minister for Immigration & Multicultural Affairs [2001] FCA 1274 Goldie v Commonwealth of Australia [2000] FCA 1873 |
| Applicant: | MZXTQ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 94 of 2008 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 28 October 2008 & 5 December 2008 |
| Date of Last Submission: | 5 December 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 23 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr C.H. Truong |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondents: | Ms S.A. Burchell |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
That the application is dismissed.
That 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 94 of 2008
| MZXTQ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introductory
In this matter the Applicant asserts that the Refugee Review Tribunal (“the Tribunal”) committed three errors, each of which constitutes jurisdictional error such as to ground the relief he seeks.
Those three errors are:
a)
The Tribunal breached s.425 of the Migration Act 1958 (“the Act”) by failing to identify to the Applicant six issues critical to its decision in the manner identified by the High Court in
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs(2006) 228 CLR 152 (“SZBEL”).
b)The Tribunal failed to comply with the requirements of s.424 and s.424B of the Act when it sought additional information from Post in Tehran.
c)The Tribunal exceeded its powers when conducting its inquiries in Iran by releasing the Applicant's name without his consent.
For the reasons that follow I do not think that any of these grounds are made out and the application must be dismissed.
SZBEL
In SZBEL the High Court was concerned with a situation where an Applicant was unsuccessful before the Tribunal and the Tribunal relied heavily upon some matters which had not been considered dispositive by the delegate. The Tribunal did not notify the Applicant that the issues that the Tribunal considered dispositive were different from those of the delegate. This led the High Court to quash the decision.
At [47] and following the High Court said:
“First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. ...The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”
The Court went on to say, at [48]:
“Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”
While it is of course clear that the decision in SZBEL is binding upon this Court, it is the application of that decision in the particular circumstances of this case that falls to be considered.
In this case there are a number of considerations that are relevant. First, the delegate made a general finding at CB 112, having already set out the Applicant's claims in detail, that:
“However, considering all of the above points cumulatively, I am not satisfied as to the general credibility of the applicant's claims.”
The delegate went on to deal in some detail with a number of matters, but his later remarks in my view are merely particular indicia of the general proposition that the delegate has set out.
The delegate went on to say at CB 116:
“Given that I do not accept that the applicant converted to Christianity in Iran and his lack of basic knowledge of Christianity, I find that even if the applicant is attending church it is solely for the purpose of enhancing his claims for a Protection Visa ...”
It is clear that the delegate roundly disbelieved that the Applicant had converted to Christianity. This was a case where “the delegate rejected every aspect of an Applicant’s claim” (see SZIOZ v Minister for Immigration and Citizenship [2007] FCA 1870 (“SZIOZ”) at [56] per Besanko J). All matters in issue before the delegate were, in the circumstances of this particular case, in issue before the Tribunal (see SZIOZ at [56]).
Second, the Tribunal wrote the Applicant a s.424A letter on 29 October 2007. In that letter, the Tribunal drew attention to what was said to be different accounts of the festival of Muharram in 2007, different accounts about what happened when a Bible was found at his home, a question about Easter and an account of the information received from Post in Tehran.
I do not accept that it is not open to the Tribunal to seek further information from an Applicant following its hearing. Section 424A is not limited in that way and would deprive the Applicant of a fair opportunity to comment (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294).
Third, the five matters in respect of which the Applicant complains (ground 1(a)(iv) was abandoned) were in my view all subsets of the central issue of conversion and all would have been obvious to the Applicant.
Fourth, two of the matters raised, namely that the Applicant never went home for five years whilst he was in hiding and that he had not talked to his children about Christianity, were only raised by the Applicant at the hearing itself. I accept as counsel for the first Respondent submits, that these would not attract the operation of SZBEL in any event.
Fifth, all of the matters of which the Applicant makes complaint were traversed at the hearing in sufficient detail to put the Applicant on notice that these were significant in any event.
In the particular circumstances of this case, and for the reasons I have set out above, I do not believe that the Tribunal committed jurisdictional error in the manner identified by the High Court in SZBEL.
Breach of Section 424
Section 424 of the Act deals with circumstances where the Tribunal seeks additional information.
It is apparent from SCB 181-2 that the Tribunal on 10 September 2007 sought further information from Post in Tehran.
That invitation was plainly in writing and given by one of the methods specified in s.441A.
The complaint here is that the letter did not specify the correct time for reply and did not specify the manner in which the information should be provided.
There have been a number of recent cases in the Full Court of the Federal Court that have considered the proper construction of this part of the legislation. The Applicant sought to rely on the decisions of the Full Court in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 (“SZKTI”) and in SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 (“SZKCQ”).
Those decisions established that failure to comply with s.424 gives rise to jurisdictional error.
However, in a subsequent decision Buchanan J, who it should be noted gave the leading judgment in SZKCQ in which not only was SZKTI upheld but the matters the subject of that decision were revisited and found to have been correctly decided, gave a further decision in SZLWQ v Minister for Immigration and Citizenship [2008] FCA 1406 (“SZLWQ”).
At [52] his Honour said:
“Section 424B(2) on its face directs that 'information or comment are to be given within a period specified in the invitation'. It does not, in terms, impose a direct obligation on the RRT about the terms of the invitation (ct s42B(1) -- 'the invitation is to specify...'). The consequence of any failure to specify a period is that the facility in s424C of proceeding to a decision in the absence of the information might not be available but I do not see as 424B(2) is establishing the kind of obligation on the RRT which could lead to either statutory breach or jurisdictional error. A circumstance of this kind (failure to specify a period and consequent inability to rely on s424C) does not fall within any of the reasoning in SZKTI, SZJCQ or SZIZO. ... In my view no 'breach' of s424B(2) occurred and, in any event, any failure to comply with its strict terms did not, in the circumstances of this case at least, amount to jurisdictional error on the part of RRT.”
Here it was put both that the letter to Post in Tehran did not posit the way in which the additional information was to be provided (s.424B(1)) nor require that information be given within the prescribed period (s.424B(2)).
The first point was recently considered in the matter of SZBQS v Minister for Immigration and Citizenship [2008] FMCA 812 (“SZBQS”).
In that case Driver FM was confronted by a very similar set of facts to this case. At [24] his Honour said:
“Importantly, in this case the request was made in writing. That is a considerable distinguishing feature of this case. While it is true that the letter did not explicitly specify the way in which the information requested was to be given, the request implicitly required a written response, given that the request was a formal one in writing. Of course, the request had to be in writing, but it was expressed as a formal request for information on advice, which in my view could have no interpretation other than as a request for a written response. The scheme of s424B is to distinguish between invitations calling for a written response and invitations calling for an oral response at an interview. In the absence of an invitation to attend an interview, it is in my view clear from the letter that a written response was called for. The obligation to “specify” the manner of the response contained in s424B(1) is not in my view breached where it is obvious from the invitation what manner of response was called for. A written response was given.”
His Honour's decision is binding on me unless I consider it to be clearly wrong. With respect, I do not consider it to be wrong but indeed accept that it is correct.
Applying the observations of his Honour to this case, where the letter was to another government department (the letter in SZBQS was to an external person), it is clear that this criticism cannot be made out.
Insofar as the request may have specified 27 rather than 28 days, which was the substantive criticism advanced on the timing point, I would refer to the judgment of Cameron FM in SZIAR v Minister for Immigration and Citizenship [2008] FMCA 1348 at 33 where his Honour said:
“His Honour's decision in SZLWQ is binding on me. As a consequence and in the circumstances of this case where the Tribunal supplied to Mr Deller an email address to which to reply, I find that the Tribunal's emails to Mr Deller sufficiently specified the way in which he might give the requested information. I further find that the failure of the Tribunal's emails to specify a period in which Mr Deller was to reply does not amount to jurisdictional error.”
In this case a period of time was prescribed and if it was incorrect, it was only in the most marginal and insignificant way. This failure cannot be said to be sufficient in my view to ground jurisdictional error in the circumstances of this case.
Breach of the Applicant's privacy
It is important to note here that the Tribunal explicitly asked the Applicant if it could make an inquiry in Iran. At T34 (SCB 220) the Tribunal said:
“'So would the tribunal be able to contact the church to get a record of your baptism?' Answer, 'Yes, you can ask them, yes.'”
At T35 (SCB 221) the Tribunal said:
“'Well, do you object to the tribunal trying to obtain that record?' 'No, no, you're welcome to ask, no problem.'”
The inquiry that the Tribunal made was in fact restricted to the particular church that the Applicant himself had nominated, namely the St Sarghis Armenian Apostolic Church of Tehran. In fact as it transpired Post in Tehran made inquiries at several other churches.
It should be noted that the Tribunal had made the following annotation to its request for information (SCB 181):
“PLEASE NOTE: Member requests that: 'They must be discreet. He has agreed to us contacting the church but they should not disclose his name to anyone else.'”
It was put by the Applicant that this inquiry was beyond power both because it released the Applicant's name to the authorities in the land from which he had fled and because it breached the privacy legislation in Australia.
So far as the first matter is concerned, I am unable to accept this criticism. First, the course of conduct upon which the Tribunal embarked had the express approval of the Applicant and it is not now open to him to withdraw it (see Abbasi v Minister for Immigration & Multicultural Affairs [2001] FCA 1274 at [67] (“Abbasi”). Second, the Applicant's name was not released to the authorities in Tehran. It was released only to religious officials who would reasonably be taken to have no desire whatever to imperil the Applicant's life. It was not released to any secular or Muslim authority in Iran from whom the Applicant might fear any harm.
Finally, I do not accept that any breach of the privacy code, if it occurred, is pertinent. This issue has been dealt with in a number of cases (see Abbasi at [67], Goldie v Commonwealth of Australia [2000] FCA 1873 at [85]-[87], SZLWQ at [32]. These decisions of the Federal Court are binding on me and in my view effectively dispose of this argument.
Conclusion
None of the Applicant's grounds or criticism of the Tribunal's decision are made out and for this reason the application must be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B Evans
Date: 23 December 2008
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