MZYLC v Minister for Immigration - [2011] FMCA 925

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYLC v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 925

MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – allegation that Tribunal relied on material not disclosed to applicant – Tribunal not failing to disclose material – Tribunal’s decision not affected by error – application dismissed.

Migration Act 1958 (Cth), ss.424A, 424AA

Applicant:

MZYLC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 315 of 2011

Judgment of:

Burchardt FM

Hearing date:

21 October 2011

Date of Last Submission:

21 October 2011

Delivered at:

Melbourne

Delivered on:

9 December 2011

REPRESENTATION

Counsel for the Applicant:

Mr F. Sabelberg

Solicitors for the Applicant:

Sabelberg Morcos Lawyers

Counsel for the First Respondent:

Ms C. Symons

Solicitors for the First Respondent:

Clayton Utz Lawyers

ORDERS

The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $18,286.50.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 315 of 2011

MZYLC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By his application filed on 9 March 2011, the applicant seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 10 February 2011. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection (class XA) visa. Although the original application raised a considerable number of matters these were all wholly formulaic and unspecified. An affidavit filed in support of the application made a considerable number of criticisms of the Tribunal’s decision, complained of lack of inquiries and raised bias and bad faith.
As now articulated, the amended application raises one matter only. It is submitted that the Tribunal fell into jurisdictional error by failing to alert the applicant to the contents of the file CLF 2009/96939. That file, which has been produced to the Court, is in the vast majority a file from the National Identity Verification and Advice section of the first respondent (“NIVA”).
For the reasons that follow, I think this criticism is not valid and the application must be dismissed.

The first ground in the amended grounds of application

The applicant filed an amended application at the same time as his written contentions of fact and law. The first ground raised referred to in the written submissions is that the respondent withheld critical information relating to the cancellation of a visa of one Dr Ahmed.
At paragraph 6 of the applicant’s contentions of fact and law, it is asserted:
“As a result further applications in the case were made for discovery. The first and second respondent’s solicitors state that there is no such evidence in undisclosed files and that aspect of the case is settled.”
There were no submissions made in support of the matters said to arise in relation to Dr Ahmed’s visa cancellation and I take it that that matter is no longer pressed.
If this case were to be pressed, in my view it is comprehensibly addressed by the affidavit of Cameron George Warfe filed by the first respondent on 29 August 2011. That affidavit relevantly asserts at paragraph 31 that Mr Warfe has reviewed all the relevant documents relating to Dr Ahmed’s visa cancellation and that:
“I have reviewed the documents. There does not appear to be anything in them to suggest that Dr Ahmed’s visa was cancelled as a result of or in connection with the applicant, or with the applicant’s detention in Perth.”
There has been no application for Mr Warfe to attend to be cross-examined and it is plain that this subset of the argument is now at an end.

The alleged withholding of the NIVA file

It is clear from the affidavit of Mr Warfe that one of the files sent to the Tribunal on or about 25 October 2010 was file CLF 2009/96939 which related to the NIVA investigation of the applicant’s true identity. It is clear from the file itself, which has been produced to the Court, that as early as at least 28 January 2011 a Mr Rodney Gleeson wrote to various officers of the Department of Immigration and Citizenship setting out a summary of the investigation into the applicant.

Mr Gleeson asserted the applicant’s true identity was otherwise than as asserted by him. It is clear that the assertions made would have been prejudicial to the applicant if they had indeed been taken into consideration by the Tribunal.
On 17 January 2011, the then solicitor for the applicant wrote to the Tribunal stating:
“We refer to the above named applicant and confirm that we act for him on a pro bono basis in his Application for Review. We also refer to the applicant’s hearing before the Tribunal on 13 January 2011, and the s.424A information presented at that hearing.
We wish to notify that we have been contacted by Mr Rodney Gleeson seeking an interview with our client. Mr Gleeson has informed us that he has significant information relevant to our client’s protection visa application. The interview has scheduled at the earliest possible date, Thursday 27 January 2011.
We do not feel we are able to act in our client’s best interests until we are privy to all the information the Department has before it. As a consequence we request an extension of time to reply to the information presented at the Tribunal until 5 pm Friday 28 January 2011.” (CB406).
It is common cause that the Tribunal declined the application for an adjournment, but the applicant’s adviser was instructed that further submissions would be considered by the Tribunal up to the date of the decision (see paragraph 86 of the Tribunal’s Reasons for Decision, CB466).
By facsimile dated 21 January 2011, the applicant’s representative did provide material to the Tribunal in response to the s.424AA information.
What the applicant says is that the Tribunal had the prejudicial NIVA information and was obliged, given that it had it before it, to give the applicant notice of it as it was prejudicial to the applicant’s case.
Putting the matter shortly (as I think it can be in both instances) the first respondent submitted that:
a)there was no proof the Tribunal had the material before it;
b)in any event the material was not relied upon by the Tribunal and therefore did not attract the operation of s.424A.
That the Tribunal was in possession of at least some prejudicial NIVA information on file CLF 2009/96939 is clear. It had the information up to 25 October 2010. Nonetheless, the Tribunal clearly may not have had the material prepared by Mr Gleeson on 28 January 2011.
In the ultimate, I am not persuaded that this matter is in any sense decisive. Mr Gleeson has sworn an affidavit confirming that while he spoke to an officer of the Tribunal (not the member hearing the case), a Ms Hancock, on 18 January 2011, he asked merely when the Tribunal might be expected to make a decision. The answer from Ms Hancock the same day was to the effect that the member was awaiting a response from the applicant’s agent.
Counsel for the applicant sought to infer that there was a sinister inter-relationship between the Department and the Tribunal, but in my view the exchanges referred to by Mr Gleeson are, on their face, wholly innocent. Mr Gleeson was at the time in the latter stages of his conclusions that the applicant had completely misrepresented his identity and it was only natural that he might seek to find out what was happening at the Tribunal.
It is important to bear in mind the basis upon which the applicant actually put his case to the Tribunal. His statutory declaration sent to the Tribunal under cover of a letter from his then adviser on 23 December 2010 (CB377 and 378 - 402) makes no mention of the identity issue. It sets out rather in considerable detail a number of claims as to fact and persecution in the past.
The correspondence from the applicant’s adviser forwarded to the Tribunal on 21 January 2011 in response to country information and other matters likewise makes no reference to the identity issue not least because, of course, that had not been raised by the Tribunal. The Tribunal’s decision, which is lengthy and detailed, canvasses a number of things in great detail but not this one, not the identity issue.
What the Tribunal said at paragraph 20 (CB 432) was:
“20. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, the previous Tribunal decisions and other material available to it from a range of sources.
21. According to the protection visa application, the applicant is an ethnic Bosanga Muslim male born on 11 June 1970 in Gushiegu, Tamale in Ghana. … The applicant departed Ghana from Accra airport on 24 October 2008. He departed the country illegally, using a fake passport because he was scared to get an official passport. …”
The Tribunal referred to the assertion that the applicant was a 38 year old male born in Gushiegu in Ghana in the following paragraph but did not otherwise deal in any detail with the matter. At paragraph 90, under the heading Findings and Reasons, the Tribunal said (CB469):
“The applicant claims to be a national of Ghana. He arrived on a Ghanaian passport which he states is not his real identity. The applicant provided an identification card in support of his claimed identity. On the basis of the information presented, the Tribunal accepts that the applicant is a Ghanaian national, and for the purposes of the Convention, has therefore assessed his claims against Ghana as his country of nationality.”
The Tribunal said nothing else in terms about the applicant’s identity and it should be noted that had it been concerned with his identity, the Tribunal member almost certainly would have referred to the fact that the identification card was the subject of considerable criticism in the NIVA documents.
I note also that the Tribunal said at paragraph 86 (CB 466):
“On 17 January 2011, the Tribunal received a request for an extension of time to reply to the information presented to the applicant under s424AA in the hearing because the applicant had been invited to an interview with a Mr Rodney Gleeson on 27 January 2011. The Tribunal contacted the applicant’s adviser on 18 January 2011 to advise him that his request for an extension had not been granted. The Tribunal was not made aware who Rodney Gleeson was or what relevance this interview had to the information put to the applicant under section 424AA or his review application in general. The Tribunal notes that the applicant’s adviser was instructed that further submissions would be considered by the Tribunal up to date of decision.”
The applicant submits that the Tribunal knew or ought to have known who Rodney Gleeson was. No factual basis was advanced for this proposition and I do not uphold the submission.
In the face of these assertions by the Tribunal, there are two possibilities. The first is that the Tribunal member was dissembling and dishonest. In other words, the Tribunal had Mr Gleeson’s material, knew it was prejudicial to the applicant and deliberately suppressed all mention of it and made what in effect would be dishonest assertions about the member’s awareness of Mr Gleeson.
The alternative, and in my view overwhelmingly more probable, possibility is that for whatever reason the Tribunal had had no regard whatever to any of such of the NIVA documentation as it had in the files before it. If the other files referred to in Mr Warfe’s affidavit are anything of the size of CLF 2009/96939, there would have been a mountain of material and it would be in no way surprising that the Tribunal did not get diverted to any particular area of it.
Further, and in any event, there is no reason to suppose the sort of dishonesty that the applicant urges. The Tribunal’s decision should be taken at face value.
The decision of the Tribunal goes into great detail to answer the various matters that the applicant actually pressed in his application for review. It does not deal with the issue of identity fraud not least, no doubt, because the applicant himself did not press it. It was scarcely likely that he would have pressed it given that the issue was scarcely a beneficial one for him. It was bad enough to start off with a false passport. I note that the Tribunal referred to the false passport without adverse comment.
In all the circumstances and reading the Tribunal’s decision as a whole, it seems clear to me beyond doubt that the Tribunal had no regard to, and in all probability no awareness of, the NIVA material that the applicant complains about.
Furthermore, and even if the Tribunal had some awareness of this material, it is plain that the Tribunal paid it no regard whatsoever. The Tribunal’s decision was arrived at, it is to be presumed, on the basis of the materials to which it referred. Accordingly, since the identity material from NIVA did not form part of the Tribunal’s reasons for decision, the various cases cited by the applicant and the first respondent have no relevance.
It is not, in my view, necessary or appropriate to go through the case law. This is a case in which the applicant’s primary complaint is clearly not made out.
The Tribunal did not fall into jurisdictional error and the complaints made about the Tribunal’s decision are, in my view, devoid of merit. I will order that the application be dismissed accordingly.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Date: 9 December 2011