MZZRL v Minister for Immigration

[2014] FCCA 1724

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZRL v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1724

Catchwords:
MIGRATION – Application of judicial review of Refugee Review Tribunal decision – whether Tribunal’s failure to call person nominated by applicant to give evidence gave rise to jurisdictional error – where applicant and his agent not mentioning witness either during Tribunal hearing or in post-hearing submissions – jurisdictional error not made out.

Legislation:  

Migration Act 1958, ss.91R(3), 425A, 426, 426(2), 426(3)

Minister for Immigration and Citizenship v SZGUR [2011] 241 CLR 594
Minister for Immigration and Citizenship v SZIAI 259 ALR 429
Chava v Minister for Immigration and Border Protection [2014] FCA 313

Applicant: MZZRL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REIVEW TRIBUNAL

File Number: MLG 1406 of 2013

Judgment of: Judge Burchardt

Hearing date: 13 June 2014

Date of Last Submission: 13 June 2014

Delivered at: Melbourne

Delivered on: 12 August 2014

REPRESENTATION

Counsel for the Applicant: Mr Watters

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Smith

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The applicant’s application for an extension of time pursuant to s.477 of the Migration Act 1958 is dismissed. 

2. The applicant is to pay the first respondent’s costs fixed in the sum of $5,800. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1406 of 2013

MZZRL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. The applicant seeks an extension of time to review a decision of the Refugee Review Tribunal (“the Tribunal”) dated 13 December 2012.  The application was filed on 2 September 2013.  It is immediately apparent that the application is very substantially out of time. 

2. In my view, the primary matter advanced by the applicant to justify the application is the merits of his application, which centrally revolve around whether or not the Tribunal fell into jurisdictional error by failing to contact Reverend Williams, the person who had baptised the applicant. 

3. For the reasons that follow, I do not think that the Tribunal did fall into error in the manner asserted, and it follows that the application must be dismissed with costs. 

Background to the claim

1. The applicant is a citizen of Iran of Azeri ethnicity who arrived in Australia on 13 April 2012 as an irregular maritime arrival.  He asserted a claim to fear harm if he was returned to Iran on the basis of his religion and his basis of a particular social group, namely apostates of the Shia Islamic faith, and on various other grounds.  

2. The only aspect of the applicant’s claims that continues to be relevant is his claim to fear persecution as a Christian convert.

3. It should be noted that having arrived in Australia on 13 April 2012, the applicant was baptised by Reverend Patricia Williams on 10 June 2012.  The evidence taken as a whole shows that the applicant had not converted to Christianity before he arrived in Australia, so, as the Tribunal noted during the hearing, this was a relatively rapid process of conversion. 

4. The decision of the delegate of the first respondent is at CB90-112.  At CB106, the delegate relevantly found:

   “On the basis of the information before me, I am not satisfied that the applicant investigated Christianity and was baptised in Australia for any reason other than to strengthen his claims to be a refugee.  I find that the applicant has engaged in this conduct in Australia for the sole purpose of strengthening his refugee claims.”

5. It has to be accepted, as the first respondent submits, that the applicant, who was represented at all material times by a migration agent, would have understood that the sincerity or otherwise of his conversion to Christianity was a matter central, or likely to be central, to the outcome of his claims. 

The application for review to the Tribunal

1. The application for review is at CB114-118.  It lists a Mr Kevin Bede of Playfair Visa and Migration Services as the applicant’s representative.  An invitation was sent to that representative inviting the applicant to appear before the Tribunal to give evidence and present arguments, which is set out at CB131 and is dated 10 September 2012.  Accompanying that letter was a letter directed to the applicant personally dated 10 September 2012 (CB133-134) which inter alia informs the applicant that:

   “The Tribunal has considered the material before it but it is unable to make a favourable decision on this information alone.”

2. On 15 October 2012, the applicant’s solicitor and registered migration agent forwarded to the Tribunal a Response to Hearing Invitation, Appointment of Representative form and legal submissions.  These run from CB138-163. 

3. Noteworthily, at CB139, the applicant requested that evidence be taken orally from the Reverend Patricia Williams, and it was asserted:

   “REV. WILLIAMS CAN TESTIFY ABOUT THE GENUINENESS OF THE APPLICANT’S CONVERSION AND THE CONTACT SHE HAS HAD WITH HIM IN BECOMING A CHRISTIAN.”

4. At the head of the page, it was stated:

   “You may request that the tribunal take oral evidence from a person or persons.  If you make such a request, the tribunal will consider your request carefully but may decide that it is not necessary to obtain the evidence.”

5. The written submissions from CB141-163 made no mention of Reverend Patricia Williams, other than a request that evidence be taken from Reverend Williams, “who can testify to the preparation she took the Applicant through for baptism and why she believes his conversion is genuine” (CB141). 

6. At CB167-172, the RRT Hearing Record of the hearing that was held before the Tribunal on 18 October 2012 is set out.  It notes at CB167 that, inter alia, the applicant, his representative on the day,

   
   

   (Ms Pavlou), was in attendance, but that Reverend Williams was not. 

7. It will be necessary to return to the transcript of the hearing in due course, but it is sufficient for the moment to note that the applicant’s representative was given 14 days to forward further information to the Tribunal and that the post-hearing submission is at CB175-177. 

8. It should be noted that no mention was made in that post-hearing submission to Reverend Williams or the desirability of calling her to give evidence.

9. On 16 November 2012, the Tribunal wrote to Ms Psihogios-Billington of Playfair Visa and Migration Services giving an invitation to comment or respond to information.  That letter and the attached letter to the applicant are at CB185-188.  An extension of time for the material to be provided was not granted (see CB192) and such material was sent on 30 November 2012 (CB200-201).  Although that material said inter alia: “As to his becoming a Christian, our client asked us to inform the tribunal that, in Melbourne, he is attending church regularly and that his conversion to Christianity is genuine.” no mention was made of Reverend Williams, and no endeavour was made to forward any statement or material from her. 

The material filed in support of the application for an extension of time

1. Leaving aside the substantive merits of the claim, the only material filed in support of the extension of time is an affidavit of the applicant filed 3 June 2014.  The applicant deposed that the Tribunal’s decision dated 13 December 2012 was sent directly to his representative and that he did not receive a copy of it, although the agent called him some time in around December 2012 and told him that he had been unsuccessful. 

2. The applicant deposed that his representative had referred the Tribunal’s decision to Victoria Legal Aid on 6 February 2013, and that Victoria Legal Aid responded on 21 February 2013.  According to the applicant’s affidavit, the Victoria Legal Aid letter of response informed him that it would take some time to assess his matter, and that the 35 day time limit to make an application to this Court had expired on 17 January 2013, and that if he wished to preserve his appeal rights, he could file an application out of time. 

3. The applicant said that he did not receive assistance in filing any application, and that he had not understood that he had to file an application within 35 days as he cannot read English.

4. The applicant deposed as to further delays caused by an endeavour to obtain an audio recording of his hearing and the way in which Victoria Legal Aid, so to speak, processed his Claim.  He ultimately filed his application on 2 September 2013 following an assessment of merit which itself took time. 

5. Given that the applicant was represented at the hearing before the Tribunal by Ms Pavlou, who described herself, no doubt correctly, as an experienced migration agent, it is not altogether easy to accept the applicant’s insouciant assertions as to his lack of understanding of the 35 day time limit. 

6. The very fact that Playfair Visa and Migration Services referred the decision to Victoria Legal Aid in February 2013 shows that that firm was still involved, and the written submissions filed on 15 October 2012 on the applicant’s behalf are extremely thorough and show a sophisticated appreciation of migration law. 

7. Nonetheless, I am prepared to give the applicant the benefit of the doubt.  I accept that the process whereby Victoria Legal Aid processes applications such as that of the applicant must necessarily be an attenuated one given that there is a very significant demand which overburdens the resources of Victoria Legal Aid.  

8. In truth, both parties approached this matter, correctly and properly in my view, on the footing that the applicant’s extension of time application should in the ultimate be determined by the force or otherwise of his substantive claim. 

The grounds of application

1.The Tribunal constructively failed to exercise its jurisdiction by failing to contact Reverend Williams regarding the genuineness of the Applicant’s conversion to Christianity. 

Particulars

(a)    the Applicant claimed to fear persecution on the basis, inter alia, of his conversion to Christianity and resultant apostasy.

(b) In its decision, the Tribunal found that the Applicant’s conversion was not genuine and excluding it from consideration pursuant to s 91R(3) of the Migration Act.

(c)    By letter dated 15 October 2012, the Applicant had requested that the Tribunal consider calling Reverend Williams, the Applicant’s pastor, to give evidence on the genuineness of his conversion.

(d)    The Tribunal did not contact Reverend Williams regarding the genuineness of the Applicant’s conversion or any other matter. 

(e)    The Tribunal may fall into jurisdictional error where it fails to make an obvious enquiry about a critical fact which is easily ascertainable.

(f)     In this case,

(i)The genuineness of the Applicant’s conversion was plainly a critical fact in that it bore upon the application of s 91R(3) and on whether the Tribunal was required to further consider the Applicant’s claim to fear persecution as a Christian/apostate in Iran;

(ii)Contacting Reverend Williams was an obvious inquiry, given that it had been expressly suggested to the Tribunal; and

(iii)It would have been easy to ascertain Reverend Williams’ view on the genuineness of the Applicant’s conversion, as he was within the jurisdiction.

(g)    Accordingly, the Tribunal’s failure to contact Reverend Williams amounted to, in all the circumstances of this case, jurisdictional error. 

2.Alternatively, if the Tribunal decided not to contact Reverend Williams, it was an unreasonable exercise of its discretion under s 426:

Particulars

(a)     Every statutory discretion conferred on a decision maker must be exercised reasonably.

(b)    Insofar as the Tribunal declined to call Reverend Williams, it acted unreasonably:

(i)For the reasons set out above, the evidence of Reverend Williams was obviously of central importance to the proper resolution of the Applicant’s case;

(ii)The Tribunal did not identify any reason for failing to call Reverend Williams nor did any such reasons exist.

(c)    Accordingly, the Tribunal committed jurisdictional error by unreasonably failing to call Reverend Williams.

3.Further, or alternatively, the Tribunal erred by failing to consider the Applicant’s request that Reverend Williams be called:

1. This third ground, which turned upon the terms of s.426(3) of the Migration Act 1958 (“the Act”) was expressly abandoned at trial. It was conceded that the request dated 15 October 2012 was outside the seven-day time limit from the Tribunal’s s.425A notice which was sent on 10 September 2012 and thus did not come within the terms of s.426(2) of the Act.

The parties’ positions

1. In a sense, the parties’ positions can be paraphrased shortly.  The applicant said that the Tribunal’s failure to call Reverend Williams constituted jurisdictional error because it was, in all the circumstances, so obviously a critical matter and would have been so easy to do that a failure to do so must, one way or the other way, give rise to jurisdictional error. 

2. The first respondent’s position by way of contrast was to the effect that it was for the applicant to make his case.  No request was made at the hearing or in the post-hearing submissions either to call Reverend Williams or to append any material from her.  It was submitted that the weight of authority was such that it was for the applicant to make his case and his failure to do so meant that there was no obligation to, on the Tribunal, to call Reverend Williams. 

The transcript of the proceeding

1. It is apparent from the materials in the Court Book (“CB”) that the person having carriage of the applicant’s case, who appears to have been Ms Psihogios-Billington, a very experienced person in these matters to this Court’s knowledge, sought to be excused from attendance on the basis of a funeral.  Accordingly, it is no surprise that when the proceedings started, the person appointed in their stead, Ms Pavlou, applied for an adjournment at P-2. 

2. Ms Pavlou had been contacted by Playfair Visa and Migration Services the previous afternoon and, as she described at P-2-P-3, she had had but little time to familiarise herself with either the materials and/or her three clients (two other applicants who are not presently relevant but who are related to the applicant were at the hearing, but their cases were not reached). 

3. At P-3, Ms Pavlou made it clear, not only that she had only met her clients for the first time that morning, but that she was concerned whether she would be adequately able to represent her clients.  She also confirmed that she was an experienced migration lawyer.

4. The presiding Tribunal member at P-3, indicated that he had not “had an adjournment request previously” and adjourned to seek guidance.  The solution which he reached at P-4 was that the hearing would proceed, but that time would be given after the hearing to put in a submission.  The Tribunal was of the view that there had been enough notice for the hearing and that there had been enough time to brief somebody else in any event. 

5. At P-5, the Tribunal member told the applicant that after his evidence was finished, he would give the adviser an opportunity to clarify “anything that has been said or put forward any additional comments”. 

6. Having traversed a number of other matters the Tribunal, at P-20, came to deal with the issue of the applicant’s Christianity.  The Tribunal member traversed the extent to which the applicant might have had an interest in Christianity in Iran and the applicant, who had confirmed his claim to be Christian, gave details of an Armenian Christian with whom he had had contact in Iran. 

7. At P-21, the applicant confirmed that he attends church in Glenroy and the fact of his baptism. At P-23, the applicant, who had said he had compared the Bible with other books, said he had compared it with the Torah. His answer to the questions as to how he had compared it with the Torah strikes me as being extremely unconvincing. At P-27-P-28, the Tribunal traversed with the applicant his knowledge of the various branches of Christianity (the applicant said he was a Baptist) and at P-29, the Tribunal expressly alerted the applicant to s.91R(3) of the Act and its effect, namely that if the Tribunal believed the applicant had undertaken action for the sole purpose of improving his claim while in Australia, it could ignore those actions.

8. At P-36, the Tribunal put doubts to the applicant about his history of contact with the alleged Armenian Christian and at P-37, put to the applicant doubts about his Christianity, given that he had not mentioned it at his first interview and traversed the apparent speed with which the applicant had been baptised. 

9. At P-42, it is recorded that there was an adjournment from 12.51 pm until 1.44 pm which gave the applicant’s agent and representative an opportunity to seek instructions and the Tribunal permitted Ms Pavlou to put to the Tribunal the burden of her instructions without taking the evidence directly from the applicant. 

10. Ms Pavlou dealt with the question of the Tribunal’s doubts about the Armenian and at P-53 and following, she dealt with the doubts the Tribunal had expressed about the question of conversion.  It should be noted that nowhere in the relatively lengthy interchange between Ms Pavlou and the Tribunal was any reference made to Reverend Williams and certainly no endeavour was made to call her as a witness. 

11. At P-57, the Tribunal gave Ms Pavlou 14 days for a post-hearing submission. 

12. As earlier indicated, time was extended for that submission and it was forwarded on 30 November 2012 (CB200-201) although, as I have indicated, it was asserted that the applicant is attending church regularly, no mention was made of Reverend Williams. 

Consideration

Ground 1.  The alleged constructive failure to exercise jurisdiction by failing to contact Reverend Williams

1. The first point to make is one already partly referred to.  The applicant’s written submissions assert at paragraph 4:

   “Essentially, the Applicant’s submission is that by either failing to call Reverend Williams or failing to consider calling Reverend Williams, the Tribunal deprived itself of crucial evidence and fell into jurisdictional error.”

2. It should be noted that it is now conceded that s.426 of the Act does not apply to the circumstances in this case because, as earlier indicated, the nomination of Reverend Williams as someone the applicant desired to have called was well outside the seven-day time limit prescribed by s.426.

3. The question then becomes whether, given that there is an express time limit in the Act, the Tribunal’s failure to act upon its own motion gives rise to jurisdictional error in any event.

4. It is certainly the case, and I think it would be common cause, that the question of the applicant’s alleged conversion to Christianity was a critical matter at the centre of his claims.  The question is, what one should make of the failure to call Reverend Williams? 

5. In Minister for Immigration and Citizenship v SZGUR [2011] 241 CLR 594 at [20], French CJ and Kiefel J, with whom Gummow J does not appear to me to have disagreed and with whom Hayden and Crennan JJ did agree said:

   “[20] Section 427(1)(d) is ancillary to s 424. Those two provisions and s 415, which confers upon the tribunal all the powers and discretions of the person who made the decision under review, give the tribunal wide discretionary powers to investigate an applicant’s claims. But they do not impose upon the tribunal a general duty to make such inquiries.16 Relevantly to the present case, as 119 ALD 1 at 7 Gummow and Hayne JJ observed in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (at [43]):17

   [43] … whilst s 427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. [Footnote omitted.]

   That observation was made in a context in which the tribunal had considered it highly likely that the applicant for review was suffering from post-traumatic stress disorder. The court, by majority, held the tribunal was under no duty to inquire as to the effect of that condition.”

   Whilst section 427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so.(footnote admitted)

1. At [22], their Honours continued:

   “The question whether s 427(1)(d) imposes a legal duty on the tribunal to consider whether to exercise its inquisitorial power under that provision was answered in the negative by the Full Court of the Federal Court in WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs.21 The court held that absent any legal obligation imposed on the tribunal to make an inquiry under s 427(1)(d) “[b]y a parity of reasoning … there is no legal obligation to consider whether one should exercise that power”.22 That view is correct. That is not to say that circumstances may not arise in which the tribunal has a duty to make particular inquiries. That duty does not, when it arises, necessarily require the application of s 427(1)(d).”

2. The decision continued at [23]:

   “In Minister for Immigration and Citizenship v SZIAI23 the court considered the implications of its designation, in earlier decisions,24 of tribunal proceedings as “inquisitorial”. As was pointed out in that case, the term “inquisitorial” has 119 ALD 1 at 8 been applied to tribunal proceedings to distinguish them from adversarial proceedings and to characterise the tribunal’s statutory functions.25 As the plurality judgment stated (at [25]):26

   [25] The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.”

3. That passage in Minister for Immigration and Citizenship v SZIAI 259 ALR 429 was, not surprisingly, relied upon by the applicant in this case. But SZIAI has been considered recently by Mortimer J in the case of Chava v Minister for Immigration and Border Protection [2014] FCA 313, where her Honour said at [80]:

   “There is no reason to consider the Tribunal itself in those circumstances should have made any inquiry of its own motion as a necessary part of exercising its jurisdiction to review. There was no vulnerability, incapacity, or infirmity in the appellant or his circumstances which might have made some proactivity on the part of the Tribunal necessary. Especially so when he was represented by a migration agent. It would be inappropriate to adapt obiter statements such as that in SZIAI (2009) 259 ALR 429 ; [2009] HCA 39 to become the means to remedy what at least appear to be failures of professional obligations in migration agents appearing before the Tribunal.”

4. Here, the applicant’s pre-hearing application, (albeit out of time for the purposes of s.426), was for Reverend Williams to be called.  Reverend Williams was, so to speak, before the Tribunal in the sense that the Certificate of Baptism was in the materials before the Tribunal.  The fact, however, of the applicant’s baptism was not itself in issue. 

5. The question to be asked is whether the Tribunal, in fact, exercised its jurisdiction or did not. 

6. Even though the applicant’s representative at the Tribunal hearing itself asserted, very understandably, a lack of familiarity with the materials in the case and unsuccessfully sought an adjournment, the Tribunal gave the applicant and his advisers an express further opportunity to file further material.  The clear inference is that this was done to enable those advisers to remedy any deficiencies arising out of the short notice given to Ms Pavlou to attend. 

7. In circumstances where no reference was made by the applicant to his experiences with Reverend Williams in Darwin whatever, and no endeavour was made to agitate the possibility of the reception of evidence from Reverend Williams after the hearing, on balance, in my view, this does not fall into the category of cases where the Tribunal’s failure of itself to press for evidence from Reverend Williams vitiated its exercise of its function. 

8. The Tribunal was well aware of the question it had to address, namely whether the applicant was a person to whom Australia owed Convention or Complementary Protection obligations.  The Tribunal was well seized of the nature of the applicant’s claims and explored doubts about those claims directly with the applicant at the hearing.  The applicant, furthermore, would clearly have known from the decision of the delegate that the question of his conversion stood at the centre of his case. 

9. Each case turns on its own facts but on the admittedly somewhat unusual facts of this case, I do not think that the failure of the Tribunal to call Reverend Williams gives rise to jurisdictional error. 

10. In circumstances where the applicant’s notification of Reverend Williams clearly did not engage the mandatory terms of s.426, it was for the applicant to make out his case. Given, as I have said, that he never mentioned Reverend Williams, I do not think that a failure of the Tribunal to call her, which to my way of thinking does not indicate either that the Tribunal considered the matter and rejected it or failed to consider it at all, neither being apparent from the terms of the Tribunal’s decision or the materials generally, gives rise to jurisdictional error in any event.

Ground 2.  The unreasonableness of the failure to call Reverend Williams

1. As I have indicated, the failure to call Reverend Williams is not addressed in terms either in the transcript of the hearing or in the Tribunal’s decision.  As a general proposition I would say that this Court should be slow to presuppose that the Tribunal has been remiss in the performance of its duties, but it is not clear whether the Tribunal decided not to call Reverend Williams or simply overlooked the matter, given the failure of the applicant to mention it. 

2. If, which is not established, the Tribunal actively decided not to call Reverend Williams this would not, in my view, in the circumstances I have described, be a decision that would be unreasonable in such a fashion as to constitute jurisdictional error. 

3. At the risk of wearisome repetition, although Reverend Williams was expressed as a witness to be called in response to the hearing invitation that was as far as the matter went.  The fact that the baptism itself, which was, so to speak, half of what the original response indicated, was not in issue.  The applicant said not one word about alleged interaction with Reverend Williams but rather concentrated on his experiences in Melbourne. 

4. In those circumstances, any decision for the Tribunal not of its own motion to contact Reverend Williams could not be said to be unreasonable. 

Conclusion

1. In these circumstances, the two grounds of application pressed are not made out and the application will be dismissed with costs. 

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  12 August 2014