MZYXN v Minister for Immigration - [2013] FCCA 134

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZYXN v MINISTER FOR IMMIGRATION & ANOR

[2013] FCCA 134

Catchwords:
MIGRATION – Review of decisions – Refugee Review Tribunal – conduct of review – Tribunal failed to consider Migration Amendment (Complementary Protection) Act 2011 – whether rehearing would be futile – matter remitted.

Legislation:
Migration Act 1958 (Cth), s.36
Migration Amendment (Complementary Protection) Act 2011 (Cth)

Cases cited:
Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151
John & Rees [1969] 2 All ER 274; [1970] Ch 345
Lee and Others v Minister for Immigration and Citizenship and Another (2007) 159 FCR 181
Minister for Immigration and Citizenship vSZQOY & Anor [2012] FCAFC 131
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SZBYR & Anor v Minister for Immigration and Citizenship & Anor [2007] HCA 26

Applicant:

MZYXN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 482 of 2012

Judgment of:

Judge Riethmuller

Hearing date:

18 March 2013

Date of Last Submission:

18 March 2013

Delivered at:

Melbourne

Delivered on:

15 May 2013

REPRESENTATION

Counsel for the Applicant:

Mr Gilbert

Solicitors for the Applicant:

Glass Lawyers

Counsel for the Respondents:

Mr Knowles

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That a writ of Certiorari issue quashing the decision of the Second Respondent dated 23 March 2013 and handed down on 26 March 2013.
That a writ of Mandamus issue requiring the Second Respondent to hear and determine the application according to law.
The First Respondent pay the Applicant’s costs fixed in the sum of $6,646.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 482 of 2012

MZYXN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Pakistan who arrived in Australia

on 23 October 2008. He applied to the Department of Immigration

& Citizenship for a protection visa on 10 May 2010, which was ultimately refused by a delegate of the Minister

on 20 June 2011.
The applicant then sought review of the delegate’s decision in the Refugee Review Tribunal by application dated 18 July 2011.

The Tribunal dismissed the application and affirmed the decision of the delegate.
The applicant filed an appeal of the Refugee Review Tribunal in this Court on 27 April 2012.

Grounds

The applicant sets out the following grounds of appeal in his application:
1. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction in that the Tribunal failed to consider the applicant’s claims against s.36(2) of the Migration Act 1958
Particulars
(a) The front page of the decision of the Tribunal records the date as 23 March 2012;
(b) The Migration Amendment (Complementary Protection) Act 2011 came in to force on 24 March 2012;
(c) The decision of the Tribunal was not handed down until 26 March 2012;
(d) The Tribunal was bound to consider the applicant’s claims under the new Complementary Protection regime.
2. The decision of the Tribunal of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction in that the Tribunal acted in breach of s.425 of the Migration Act 1958
Particulars
(a) The applicant refers to and repeats the particulars set out in paragraph 1(a)-(d) above.
(b) The Tribunal failed to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review, namely whether his claims fell within the new Complementary Protection regime.

Ground 1

The date of the Tribunal decision on the front cover is 23 March 2011. The certification that the copy of the reasons is a true copy of the Tribunal’s statement of decision and reasons by a delegate of the district registrar, which appears on the last page of the reasons for decision, is dated 26 March 2011.
It is clear that the Tribunal only becomes functus officio upon notification of the decision to the applicant, which appears to have occurred on 26 March 2011 (see Minister for Immigration and Citizenship vSZQOY & Anor [2012] FCAFC 131 at [17]-[18], [49] and [52]).
As identified by Buchanan J in SZQOY (at [24]) an “important development in the law” could be a reason for revisiting a statement of reasons for decision after their drafting but prior to notification.
On 24 March 2012 the complementary protection provisions of the Act came into force (see s.2 Migration Amendments (Complementary Protection) Act 2011). These provisions included a new criteria for the grant of a protection visa as set out in s.36(2)(aa) which provides as follows:
(2) A criterion for a protection visa is that the applicant for the visa is:
…
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm…
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
Ineligibility for grant of a protection visa
(2C) A non‑citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(a) the Minister has serious reasons for considering that:
(i) the non‑citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(ii) the non‑citizen committed a serious non‑political crime before entering Australia; or
(iii) the non‑citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or
(b) the Minister considers, on reasonable grounds, that:
(i) the non‑citizen is a danger to Australia’s security; or
(ii) the non‑citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
It is clear that the Tribunal in this matter did not address the applicant’s claims to the extent that they could fall within s.36(2)(aa) and therefore the Tribunal have failed to deal with an integer in this case.
Quite properly, counsel for the Minister conceded that the application made by the applicant was not finally determined before 24 March 2012 (the start date of the amendments) and that the complementary protection visa conditions were not applied in relation to the applicant’s case, even though the Tribunal was obliged to consider them.
In these circumstances it is clear that the Tribunal has erred in failing to consider the applicant’s claims within the parameters of s.36(2)(aa).
Counsel for the Minister, however, argues that the Court ought to exercise the discretion to refuse to grant relief to the applicant on the basis that no useful result could ensue from the grant of relief. In this regard the Minister relies upon the comments of the High Court in SZBYR & Anor v Minister for Immigration and Citizenship & Anor [2007] HCA 26 where it was said:
[27] The respondent minister raised the issue of discretionary relief by way of a notice of contention dated 16 February 2007. The minister argued that, even if the appellants’ arguments about s 424A were correct, their claim would be doomed to failure because of the absence of a Convention nexus, and thus the grant of certiorari or mandamus would be futile. This submission was not put to the courts below, and, given the conclusions expressed in these reasons that on the facts of this case s 424A had not been engaged at all, it is not critical for the minister to rely upon it in this court. However, it is convenient to say something on the subject.
[28] This court has previously emphasised that the grant of the constitutional writs is a matter of discretion, and the same principles apply to the grant of relief by the Federal Magistrates Court and the Federal Court pursuant to s 39B of the Judiciary Act 1903 (Cth). In Aala [at CLR 108 [56], ALR 238; ALD 302-3], Gaudron and Gummow JJ noted that:
[56] Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said [(1949) 78 CLR 389 at 400; [1949] 56 ALR 675 at 680-1]:
“For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court’s discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.”
[29] The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the tribunal’s finding that their claims lacked the requisite Convention nexus. The appellants’ case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, [[1994] 1 SCR 202 at 228] cited in Aala, was one in which “irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse” [Aala at CLR 109 [58]]. In this regard, the references that were made in the course of argument to the “unbundling” of a tribunal’s reasons into “impeachable” and “unimpeachable” parts were more likely to mislead than to assist. While there may well be cases in which a tribunal’s breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case.
In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Gaudron and Gummow JJ commented on the discretion to refuse relief saying:
[50] Particular considerations arise where the officers of the Commonwealth against whom prohibition is sought are members of a federal court. In R v Gray; Ex parte Marsh, Mason J said [(1985) 157 CLR 351 at 375]:
“It has been said that, although prohibition is not a writ of course, it is a writ which goes as of right when the prosecutor is directly affected by the course pursued by a tribunal to which the writ lies and the prosecutor shows satisfactorily that the tribunal is about to act to his detriment in excess of its authority: Australian Stevedoring Industry Board [(1953) 88 CLR 100 at 118‑119]. However, recent judgments in this Court support the proposition that the court has a discretion to refuse prohibition where it is sought against a superior court at least when: (a) the prosecutor has a right of appeal; and (b) there is no constitutional question involved”.
Further, prohibition may be refused by this Court where the administrative structure incorporates provision for an internal "appeal" and, whilst there was a denial of procedural fairness at the first stage, an appeal was taken and there was a full and fair hearing on that appeal. The judgment of Mason J in R v Marks; Ex parte Australian Building Construction Employees Builders Labourers' Federation [(1981) 147 CLR 471 at 484‑485. Murphy J (at 489), Aickin J (at 493) and Wilson J (at 494) agreed with the judgment of Mason J in this respect] is authority that, in such a case, prohibition to the first decision-maker may be refused on the footing that any denial of natural justice at that level has become irrelevant. For that conclusion, Mason J cited in support the decision of the Privy Council in Calvin v Carr [[1980] AC 574 at 593].
[51] The position respecting refusal of prohibition was expressed in more general terms by Gibbs CJ in R v Ross-Jones; Ex parte Green [(1984) 156 CLR 185]. After referring to various authorities, including Australian Stevedoring Industry Board [(1953) 88 CLR 100 at 118‑119] (in which the expression "in excess of its authority" was used with reference to the activities of tribunals), Gibbs CJ said [(1984) 156 CLR 185 at 194]:
“If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course.”
[52] That statement should be accepted as the correct approach to the exercise of the original jurisdiction in matters in which a writ of prohibition is sought against an officer of the Commonwealth under s 75(v) of the Constitution. The expression “want or excess of jurisdiction” in that passage includes, in the sense explained earlier in these reasons, the consequence of failure to observe the rules of natural justice in the exercise of statutory authority.
[53] The recognition of an element of discretion attending the exercise of the jurisdiction conferred by s 75(v) with respect to prohibition involves “two separate questions” [De Smith's Judicial Review of Administrative Action, 4th ed (1980) at 422]. The first is whether the officers of the Commonwealth in question acted in want of or in excess of jurisdiction. The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances. The denial of prohibition by reason of an adverse answer to the second question does not necessarily deny to the prosecutor the opportunity to vindicate any private law rights in appropriate proceedings. For example, damages or equitable relief may be sought for tortious injury to private or individual rights [Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 558. See Craig, Administrative Law, 3rd ed (1994) at 613‑642]. In such actions, the parties are likely to be different and, in any event, the doctrine of res judicata may not be applicable [Wade and Forsyth, Administrative Law, 7th ed (1994) at 282‑283; cf Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at 452‑453; Craig, Administrative Law, 3rd ed (1994) at 676‑677].
[54] The text and structure of Ch III do not suggest that prohibition should occupy any special position among the constitutional remedies provided in s 75(v). The other two remedies specified there are attended by discretion. This is "well settled" with respect to mandamus [R v Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504 at 522. See also R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400, 407‑409]. It is a remedy which does not go either as of right or as of course. The same certainly is true of the injunction where, as here, it is a public law remedy [See Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 157‑158 [57]-[58]]. In Annetts v McCann [(1990) 170 CLR 596 at 604‑605], Brennan J pointed out that a writ of prohibition or an injunction may be sought to restrain the exercise of a power where natural justice has not been accorded, this being "a failure to satisfy some condition governing the proposed exercise of the power". In other cases, upon analysis, an injunction with the same effect as prohibition quousque may be the appropriate remedy that is sought [R v MacKellar; Ex parte Ratu (1977) 137 CLR 461 at 474‑475].
When approaching a determination as to whether or not to refuse relief Besanko J (with whom Moore and Buchanan JJ agreed) concluded that it was appropriate to apply a “forward-looking” test at least in the case that was before the court on that occasion, Lee & Ors v Minister for Immigration and Citizenship & Anor (2007) 159 FCR 181, saying:
[53] However, as I have said, I think it is appropriate to apply a forward-looking test and doing so results in the conclusion that, whilst a rehearing may prove futile, the Court cannot be certain that that will be the case. I put to one side for the moment the appellants' challenge to the Tribunal's decision in relation to Konel's sponsorship application which, in any event, for reasons I will give, must be rejected. The Court cannot be certain that a rehearing will be futile because (and I understood the first respondent to concede this) nomination by an approved standard business sponsor is a requirement to be satisfied at the date of decision and it is a possibility that this criterion will be met on a rehearing of the appellants' application for review. It may well be that it will not be met but, in my opinion, unless it is clear that it will not be met, relief should not be refused on the ground of futility. In other words, I do not think that relief should be refused unless it is clear that a rehearing will be futile and I do not think that it is clear in this case.
The result of a “forward-looking” test in that case was to enable an applicant for a visa that required a sponsor an opportunity to obtain an appropriate sponsor prior to the rehearing following the court remitting the matter even though on the evidence the applicant did not have

a sponsor that would fit the visa criteria at the time of the original decision.
In Lee’s case the forward-looking test indicated that a rehearing was not necessarily futile as it was possible that the applicant would find another person to be his sponsor for the purpose of his visa.
The distinguishing feature between Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 151 (where the ‘forward-looking’ test was not applied) and Lee, is that the former is a case under the taxation legislation, whereas the latter is a case involving immigration. Notably, both cases involved a party who was denied procedural fairness.
The article by Lord Justice Bingham, “Should public law remedies be discretionary?” 1991, Public Law 64 at 72-73, referred to by Besanko J, refers to Sir William Wade’s comments describing the exercise of the discretion not to grant relief as “the dubious doctrine that a hearing would make no difference”. Bingham goes on to outline six reasons for which he expected that refusal to remit a matter for rehearing in a procedural fairness case would be rare:
(i) Unless the subject of the decision has had an opportunity to put his case, it may not be easy to know what case he could or would have put if he had had the chance.
(ii) As memorably pointed out by Megarry J in John v Rees, experience shows that that which is confidently expected is by no means always that which happens.
(iii) It is generally desirable that decision-makers should be reasonably receptive to argument, and it would therefore be unfortunate if the complainant’s position became weaker as the decision-maker’s mind became more closed.
(iv)In considering whether the complainant’s representations would have made any difference to the outcome, the court may unconsciously stray from its proper province of reviewing the propriety of the decision-making process into the forbidden territory of evaluating the substantial merits of a decision.
(v) This is a field in which appearances are generally thought to matter.
(vi) Where a decision-maker is under a duty to act fairly the subject of the decision may properly be said to have a right to be heard, and rights are not to be lightly denied.

The comments of Megarry J in John & Rees [1969] 2 All ER 274; [1970] Ch 345 at 402 are:
…as everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment from those who find a decision against them has been made without there being afforded any opportunity to influence the course of events.
In the present case the Minister relies heavily upon the findings made by the Tribunal to the effect that the applicant could relocate within Pakistan to avoid the serious harm that falls within the ambit of the convention grounds. It is argued that there is not serious harm, or factual circumstances, which are arguably outside of the ambit of the convention, but which may fall within the complementary protection provisions. As a result, counsel for the Minister argues that the Tribunal’s finding that the applicant could relocate within Pakistan addresses all of the concerns the applicant raised.
On a practical level it is apparent that neither the tribunal member, nor the applicant’s advisors, turned their mind to the complementary protection provisions prior to the hearing or at any point during the process. As a result, it is not unlikely that the applicant’s advisors would not have explored risks to the applicant that were outside the ambit of the convention, but may potentially be within the ambit of the complementary protection provisions.
Importantly the wording of the provisions relating to the convention and the complementary protection provisions are different, indicating at least some slight difference in the test that must be applied. Whilst there was not technically a denial of procedural fairness in this case, as the applicant did receive a hearing, the practical effect of the events is substantially the same. That is, as no-one addressed, nor turned their minds to the complimentary protection provisions, the circumstances are no different to a failure to hear the application on this aspect of the case.
As a result, I am not able to be satisfied that it would be certain that a rehearing would be futile in this case.
In the circumstances I must therefore remit the matter to the Tribunal for rehearing and therefore I will allow the application and order accordingly.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 14 May 2013