MZXTZ v Minister for Immigration
[2008] FMCA 1716
•22 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXTZ v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1716 |
| MIGRATION – Decision of the Refugee Review Tribunal – functus officio. MIGRATION – Judicial review – procedural fairness – country information – protection visa. |
| Migration Act 1958, ss.91R, 422B, 424, 424A, 425, 430, 430A, 430B |
| Inderjit Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 73 Jayasinghe v Minister for Immigration & Ethnic Affairs & Anor [1997] FCA 551 NANI v Minister for Immigration [2003] FCA 1082 Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533; (2000) 60 ALD 383 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515 X v Minister for Immigration & Multicultural Affairs [2002] FCAFC 2; [2002] FCA 56; (2002) 116 FCR 319; (2002) 67 ALD 355 |
| Applicant: | MZXTZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 326 of 2008 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 9 September 2008 |
| Date of Last Submission: | 1 October 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 22 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fernandez |
| Solicitors for the Applicant: | Mano Associates |
| Counsel for the Respondents: | Mr Wee |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
That the application be dismissed.
The applicant pay the respondent’s costs fixed at $6,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 326 of 2008
| MZXTZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal dated 7 February 2008.
The applicant arrived in Australia on 20 June 2007. He applied for a protection visa on 6 August 2007, claiming fear of persecution for religious reasons. On 2 October 2007, the delegate of the Minister refused the protection visa, finding that the country information did not support the applicant’s claims. The applicant then sought review in the Refugee Review Tribunal. A hearing was conducted by the Tribunal on 18 December 2007, at which the applicant attended with his representative and gave evidence. The RRT affirmed the decision of the delegate.
Background
The applicant is a Malaysian citizen. The applicant said that he was born a Tamil, considers himself a Hindu, but also prays to a Muslim God. At the Tribunal hearing, the applicant said that he believed in every religion and every god.
Following the death of his father in 1993, the applicant worked as a kitchen hand cleaner. The applicant attended prayers and participated in Ramadan with his employer.
The applicant claims that when he was 14, he was forced to convert to Islam by his employer. His employer gave the applicant some documents to sign. The applicant was illiterate and signed the documents without understanding their meaning. Arrangements were then made for the applicant to be circumcised. However, he ran from the hospital prior to the operation. The applicant was also issued with a new identity card.
In 2005, the applicant claimed his employment was terminated as a result of his employer’s disapproval of the applicant’s relationship with a Tamil woman and their intention to marry.
On 16 March 2007, he was interrogated by police enforcing the Islamic Code. He said he was found worshipping Hindu idols. He explained that his room was ransacked and he was detained and assaulted. His employment was subsequently terminated.
Grounds for review
On 16 March 2008, the applicant applied for judicial review before this court. The original application provides for three grounds. An amended application was filed on 23 September 2008, providing for an additional ground with two parts. Specifically, these are:
a)The Tribunal denied the applicant natural justice and procedural fairness;
b)The Tribunal failed to consider the applicant’s claims;
c)The Tribunal breached ss.424A & 425 of the Migration Act;
d)The Tribunal:
i)denied the applicant procedural fairness by failing to consider the document handed to the Tribunal at the handing down of the decision; and
ii)erred jurisdictionally in saying it was functus officio prior to the handing down of the decision.
Ground 1 – Procedural Fairness and Natural Justice
The applicant alleges two particulars under this ground: that the tribunal should not have drawn an adverse inference from the applicant’s inability to produce documents signed when he was 14 years old; and that the Tribunal did not take adequate steps to ascertain the information in the embedded microchip on the applicant’s identity card.
Whilst the Tribunal identified the absence of documents in para.86 of its decision, it dealt with it appropriately as explained in para.87:
[86] However, the Tribunal observes that the other than his oral evidence the applicant has not submitted any evidence, such as the actual documents he allegedly signed for his employer, to substantiate his claims to have signed documents that amounted to his consent to convert to Islam…
[87] In assessing the applicant’s claims, the Tribunal has taken into account that approximately twelve years have elapsed since these events allegedly took place and that therefore the applicant may have some difficulty producing this kind of documentary or other substantiating evidence…
At the hearing, the applicant developed his argument with respect to the failure of the Tribunal to obtain information claim to be embedded in a microchip on his identity card to also include a claim that the Tribunal filed to properly investigate injuries on his person which he said showed torture.
The applicant explains the relevance of the card on the basis that when the applicant was approximately 14 years of age, his employer had him sign some documents, which the applicant signed without understanding. Following this, the applicant was then issued with a new identity card. The applicant claims this new card (identified as a re-issued card by a number 02), identifies him as either a ‘Hindu Muslim’ or a ‘Muslim’.
The physical card itself does not mention the applicant’s race, ethnicity or religion. The applicant alleges that this information is contained in a microchip imbedded in the card and can only be accessed using appropriate electronic equipment.
There is no evidence as to what information is contained on the microchip, nor what would usually be contained in such a microchip. Most importantly, there is no evidence as to what steps could be taken to read the microchip. In the absence of some evidence that the Tribunal could have, as a matter of fact, ascertained the contents of the microchip the applicant’s claim in this regard must fail at the threshold. In the absence of evidence that it was possible for the Tribunal to ascertain the contents of the microchip, there is no need to consider whether the tribunal ought to have taken the steps to have that information produced in a human readable form.
On 16 March 2007, the applicant says that he was interrogated by police enforcing the Islamic Code. He was found worshipping Hindu idols. He submitted to the Tribunal that his room was ransacked and he was detained over night. During this detention, he was interrogated and burned with cigarette butts, causing physical scars. He was then released without charge the following morning.
The Tribunal found that aside from the applicant’s own evidence, there was little evidence to identify the nature or likely cause of the scars upon the applicant’s body. The applicant says that the Tribunal erred in not taking the scars alone as evidence of torture and in not referring the applicant to the organisation ‘Victims of Torture’.
The Tribunal is not required to gather evidence, nor obtain medical reports of the type contemplated by the applicant. The applicant had an opportunity to place before the Tribunal any relevant evidence in this regard, and has not done so. Therefore, I do not find that the Tribunal has erred in this regard.
Ground 2 – Failure to consider the applicant’s claim
The applicant submits that the Tribunal failed to consider an integer of the applicant’s claim. The ground contains particulars of four matters that the applicant claims the Tribunal did not consider:
a)The applicant’s claim of forced conversion to Islam and the facts and circumstances of that conversion 14 years ago;
b)Misconstruing the claim under s.91R as discrimination as an ethnic Tamil;
c)The country information which indicates that Hindus are not prevented from marrying other Hindus; and
d)The seriousness of the country information.
The applicant also submitted that the Tribunal failed to consider the applicant’s claim to be taken as a person professing the Muslim faith and prevented from marrying a Hindu woman.
The Tribunal considered the applicant’s claim to have been forced to convert to Islam in Malaysia. The Tribunal did not accept this claim, as stated at para.88 of their decision:
[88] Whilst the Tribunal recognises the difficulties the applicant may face in providing documentary evidence or the like to establish his claims, the Tribunal does not find the applicant’s claims to have been forcibly converted to Islam when he was aged 14 by his employer as plausible. The Tribunal does not accept, even having regard to the impoverished nature of the applicant’s family circumstances, that the applicant would run away from an attempt to forcibly circumcise him as part of a forced conversion to Islam arranged by his previously benevolent Muslim employer, but continue to remain with the same employer for another decade after these events allegedly took place. This is particularly so given the applicant’s oral evidence that he did not have any problems with his employer until the employer expressed disapproval of his personal relationship with a Hindu woman in approximately 2005. As a result, the Tribunal considers these claims to be far-fetched and does not find this claim to be plausible.
It is difficult to understand the claim of the applicant with respect to s.91R. The section deals with the impact or seriousness of the discrimination upon the applicant. The Tribunal clearly considered the various impacts upon the applicant of the discrimination that he claimed, through the course of its decision.
The third particular simply recounts factual finding of the Tribunal. The fourth particular appears to be no more than a complaint that the Tribunal did not place weight upon the country information on the way sought by the applicant. Neither of these matters are a basis for a finding that the Tribunal committed jurisdictional error.
Ground 3 – ss.425 & 424A
The application provides five separate particulars what is said to constitute a failure by the Tribunal to comply with ss.424A and that 425.
The first three particulars are all complaints that the Tribunal did not discuss its thought processes with the applicant prior to making a decision. The first particular complains that the Tribunal ought to have warned the applicant of the weakness in his case as a result of the apparent unavailability of corroborating evidence. The second complains that the Tribunal failed to elicit evidence from the applicant, and the third compliance of a failure by the Tribunal to provide evidence. As explained by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592; (2006) 81 ALJR 515:
[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.
The fourth particular is simply a general complaint that the Tribunal failed to provide the applicant with "a meaningful hearing of the applicants claim". It appears from the written outline that the applicant was relying upon a claim that the Tribunal failed to provide country information under these sections. However, country information is specifically excluded from these sections: see s.424A(3)(a).
The final particular is that the Tribunal failed to ascertain the information embedded, microchip in the applicant's identity card. How this time relates to the sections is unclear. The fundamental flaw in this argument is set out above.
Ground 4 – Functus Officio
On the day the decision of the tribunal was to be handed down, the applicant handed the Tribunal officer an untranslated copy of a document written in Malay and having an official appearance. The applicant claimed the document stated that his family house had been raided and he could not return to Malaysia because he feared that he would be harmed or killed. The applicant requested that the document be shown to the Tribunal member.
The handing down officer took the document, and then proceeded with the handing down ceremony, handing the written decision to the applicant.
Following the handing down ceremony, the case officer at the handing down spoke with the Tribunal member. The member noted, on 26 February 2008:
…
The applicant told the handing down officer that he received the document at folio 112 the week before the handing down on 20 February 2008...
However, the applicant did not choose, in these circumstances, to provide this particular document to the Tribunal until after the handing down process had actually commenced on 20 February 2008.
In the circumstances, the Tribunal considers itself “functus officio” in this case.
In any event, the Tribunal observes in this case that, whilst it has had regard to the document provided to the handing down officer on 20 February 2008, the document is untranslated and therefore the Tribunal is not in a position to verify its contents. Nor can the Tribunal determine to what extent this evidence would have assisted the applicant’s claims for refugee status and whether or not it would have altered the Tribunal’s decision. In the circumstances, the Tribunal is satisfied that there is no need for it to alter its decision in this case.
The applicant submits that the Tribunal denied the applicant procedural fairness and failed to comply with the provisions of the Act when it failed to consider the document handed to the Tribunal officer prior to the handing down of the decision.
In considering this part of the Applicant’s case it is appropriate to commence with the relevant division of the Act. Section 422B of the Act states that the ‘Division is to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with’. Section 424 requires the Tribunal to have regard to any information that it receives that is relevant.
As was explained by the Full Court in X v Minister for Immigration & Multicultural Affairs [2002] FCAFC 2; [2002] FCA 56; (2002) 116 FCR 319; (2002) 67 ALD 355 the Tribunal was obliged to consider any material provided to the Tribunal prior to making their decision. The respondent did not argue that the Tribunal in this case had attempted to place any limit upon the applicant providing further material in the manner discussed in X v Minister for Immigration & Multicultural Affairs [2002] FCA 56 at [19].
Therefore the question that arises is whether the Tribunal had completed its statutory function prior to the applicant providing the document. The phrase functus officio was succinctly characterised by Goldberg J in Jayasinghe v Minister for Immigration & Ethnic Affairs & Anor [1997] FCA 551:
The effect of the application of the doctrine is that once the statutory function is performed there is no further function or act for the person authorised under the statute to perform: R v Moodie; ex parte Mithen (1977) 17 ALR 219, 225; Comptroller-General of Customs v Kawasaki Motors Pty Ltd (1991) 32 FCR 219, 225.
The relevant sequence of events in this case is that:
a)The applicant tendered the documents before the handing down process was completed;
b)The applicant had not yet received a copy of the decision; and
c)The secretary had not received a copy of the decision.
The Full Court of the Federal Court considered the question of when the Tribunal’s decision became final in Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533; (2000) 60 ALD 383. The Full Court held that it was likely that the Tribunal would be able to recall its decision at any point prior to the decision being communicated to the parties.
Spender J held that it was likely that the member could recall the decision any time prior to a copy of the decision being sent to Minister or the applicant:
[12] There is little evidence touching the question whether the decision by the Member of the RRT, in this particular case, was "beyond recall". I think it likely that, had the Member wanted to recall his signed decision, because, for example, he had changed his mind or had realised that he had made a mistake, he would have been able to retrieve the decision at any time prior to a copy of it having been sent to either the Minister or the applicant as then required by s 430(2) of the Migration Act 1958 (Cth) ("the Act").
Similarly, Madgwick J held (at [103]):
A decision is no decision, in my opinion, until either it has been communicated to the applicant or irrevocable steps have been taken to have that done. I speak of communication to the applicant because, before the RRT, the applicant is the only party. There is no need to regard a decision as irrevocable before it must be considered to have passed into the public domain.
It is clear from what the Full Court said in Semunigus that under then s.430(2), the Tribunal became functus officio upon the decision being communicated to either party.
Since Semunigus, the Migration Act has since been amended, and s.430A and 430B now require a handing down process, rather than ‘publication’. The requirement for a handing down process is contained in s.430B of the Migration Act. The relevant provisions are as follows:
…
(4) The date of the decision is the date on which the decision is handed down.
(5) If the applicant and the Secretary are present at the handing down of the decision, the Tribunal must give each of them a copy of the statement prepared under subsection 430(1).
(6) If the applicant is not present at the handing down of the decision, the Tribunal must notify the applicant of the decision by giving the applicant a copy of the statement prepared under subsection 430(1). The copy must be given to the applicant:
(a) within 14 days after the day on which the decision is handed down; and
(b) by one of the methods specified in section 441A.
(7) If the Secretary is not present at the handing down of the decision, the Tribunal must give to the Secretary a copy of the statement prepared under subsection 430(1). The copy must be given to the Secretary:
(a) within 14 days after the day on which the decision is handed down; and
(b) by one of the methods specified in section 441B.
The respondent relies heavily on s.430B(4), which states that the date of the decision is the date on which the decision is handed down, to argue that the Tribunal will have become functus on the day of the handing down, not at the completion of the steps required by s.430B.
The relevant subsection was considered at some length by the Federal Court in Inderjit Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 73:
[27] It is fairly clear that, under the statutory scheme, and in particular s.430B(4), although a decision is to be made and, in the usual course, committed to writing prior to it being handed down, the decision is only intended to be treated as final and operative as from the date on which the decision is handed down, that is, as from the date of the decision. Thus, there is nothing in the statutory scheme that would appear to prevent the RRT from reconsidering, recalling or altering any decision it has made prior to the date on which the decision is handed down.
There must always be a specific time when a body becomes functus officio. If the respondent’s submissions were accurate, the Tribunal would become functus officio at 12am on the day of the handing down, unless the handing down was postponed. Thus, anything submitted on that day would not be considered as the Tribunal would be functus officio. Conversely, if the decision was postponed, then the same material would have to be considered.
Merkel J supported the view held in Semunigus that a decision is not functus officio until the decision has been handed down or communicated:
[38] In so far as the decision is relevant to the Act in its present form, [Semunigus] supports the view that until the decision is handed down or communicated to the applicant or to the Department or the Minister the RRT is not functus officio and has power to recall the decision.
A similar issue was considered in NANI v Minister for Immigration [2003] FCA 1082. In this matter, the applicant asked a tribunal officer on the day the decision was to be handed down if he could provide further submissions. This was taken to the Member who followed Tribunal policy and did not consider the documents submitted. In this instance, the Federal Court held that:
The documents were submitted before the decision of the RRT was handed down. The RRT was therefore not functus officio when the Applicant sought to put them before the decision-maker; see Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; (2000) 96 FCR 533 ("Semunigus"); Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 73; (2001) 109 FCR 18 ("Singh"); and Applicant V346 of 2000 v Minister for Immigration and Multicultural Affairs [2001] FCA 1179; (2001) 111 FCR 536 at [77].
The court is not functus officio until the decision is handed down or communicated to:
a)The applicant;
b)The Department; or
c)The Minister.
In this instance, the decision had not been handed down to any of the above. As a result, the Tribunal was not functus officio at the time the document was handed by the Applicant to the handing down officer.
In this matter, the documents were not brought to the Tribunal member’s attention until after the decision had been handed down to the parties. The member had no opportunity to and did not consider the documents nor consider whether the documents ought to be received.
I therefore find that the Tribunal failed to consider the document at the relevant time. Notably, the applicant has not provided a translated copy of the document to the court to demonstrate that it is in fact relevant to the decision, despite being represented and filing other documents with the court.
In this case, however, the Tribunal member nevertheless went on to consider the document after the handing down process had been completed. The member’s case note (quoted above) details that the Tribunal was not in a position to ‘verify the contents’ of the document. The respondent submits that the phrase ‘verify the contents’ indicates that the member was aware of the applicant’s claim that the document detailed an incident of his family home being raided, but could not confirm the contents of the document.
On any reading, it seems clear that the Tribunal has now had regard to the document handed to the handing down officer. The Tribunal finally stated that it was satisfied that there was no need to alter its decision. The Tribunal has now considered the document in question, albeit after the Tribunal member had handed down the decision.
In these circumstances, it is difficult to see what purpose prerogative relief would serve in setting aside the decision and returning the matter to the tribunal member to consider whether the document alters the outcome. Whilst the tribunal member erroneously considered the document after the decision was handed down, the document has nonetheless been considered, making it apparent that the same outcome will flow even if the decision is set aside remitted to the Tribunal member to formally decide again based upon the extra document.
I therefore decline to issue prerogative writs in this matter.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Robin Smith
Date: 22 December 2008
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