NBKM & Ors v Minister for Immigration & Anor
[2007] FMCA 179
•13 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NBKM & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 179 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – citizen of the People's Republic of China – where there had been a previous Tribunal hearing – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.422B, 425 |
| SZAGF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1448 SZHQG v Minister for Immigration and Anor [2006] FMCA 1275 M v Minister for Immigration & Multicultural Affairs [2006] FCA 1247 Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201 SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 |
| First Applicant: | NBKM |
| Second Applicant: | NBKN |
| Third Applicant: | NBKO |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2874 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 February 2007 |
| Date of Last Submission: | 13 February 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 February 2007 |
REPRESENTATION
| Applicant: | In Person |
| Solicitor for the Respondent: | Mr Leerdam |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Second Applicant in NBKM is appointed litigation guardian of the First Applicant NBKM.
The title of the First Respondent is changed to Minister for Immigration and Citizenship.
The Application is dismissed.
The Second and Third Applicants are to pay the First Respondent's costs fixed in the sum of $4,500.00.
I allow five (5) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2874 of 2006
| NBKM |
First Applicant
| NBKN |
Second Applicant
| NBKO |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal that was signed on 7th September 2006 and handed down on
19th September 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant to the three Applicants Protection (Class XA) visas.
Background
The Applicants are citizens of the People's Republic of China. They arrived in Australia on separate occasions. The First Applicant is the son of the Second and Third Applicants. He is not yet an adult, and in the circumstances I have taken the decision to appoint his father, the Second Applicant, as the litigation guardian of the First Applicant for the purpose of these proceedings.
The Second Applicant, the father, had spent two periods of time in Australia. He left Australia in 1993, and returned on 12th December 1995. The other two Applicants, mother and son, arrived in Australia on 8th May 1997. They applied for Protection (Class XA) visas on 3rd March 2003, and those visas were refused by a delegate of the Minister on 29th May 2003. The Applicant sought a review of that decision by means of an application to the Refugee Review Tribunal.
The Tribunal affirmed the delegate's decision on 10th February 2004. The Applicants then sought judicial review of that decision, and on
29th May 2006 in the Federal Magistrates Court of Australia, Emmett FM made orders by consent, setting aside the Tribunal decision. The orders that were made relevantly are these:
i)A writ of certiorari issue to quash the decision of the Refugee Review Tribunal handed down on 2 March 2004.
ii)A writ of mandamus issue to compel the Refugee Review Tribunal to reconsider the review application in accordance with law.
The Court noted that the reason for the orders were that the Minister accepted that the Tribunal's decision was affected by an error of the type described by the Full Federal Court of Australia in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] FCAFC 2.
The Tribunal wrote to the Applicant on 6th July 2006 inviting the Applicant to provide information including any documents or written arguments not previously provided. There was no response to that letter.
On 27th July 2006, the Tribunal again wrote to the Applicant. That letter was written in accordance with the provisions of s.424A (1) of the Migration Act, and invited the Applicant to comment on nine pieces of information. The letter asked for the comments to be in writing and in English, and to be received at the Tribunal by 21st August 2006.
The letter, a copy of which appears on pages 116 to 118 of the Court Book, contained within it a warning in block capitals as follows:
IF YOU DO NOT GIVE COMMENTS BY 21 AUGUST 2006 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE.
The letter went on to advise the Applicant that the Tribunal Member would listen to the tape recording of the hearing conducted before the Tribunal on 9th January 2004. The letter said this:
Please note that the Member who is now considering your case will listen to the tape recording of the Tribunal hearing on
9 January 2004. He may decide, having done so, and having considered your response to this letter and the other evidence currently before the Tribunal, that he is able to make a decision, which may be either favourable or unfavourable. It is therefore in your interests to submit with your response to this letter, all further evidence or submissions you wish the Tribunal to consider.
The Tribunal forwarded a copy of that letter to the Second Applicant. What then happened then is that the Second Applicant wrote to the Tribunal on 19th August 2006. A copy of that letter, which was faxed to the Tribunal, appears on page 124 of the Court Book. The Second Applicant said, relevantly:
In response to your letter dated 27 July 2006, I am busily preparing comments.
As I need more time to get the comments completed, may I ask a time extension for one week to lodge the comments?
The Tribunal replied, on 21st August. A copy of the letter appears at page 127 of the Court Book, and the relevant parts of the letter say this:
On 21 August 2006 you requested more time to comment on the information provided by the Tribunal on 27 July 2006.
The Tribunal Member has not formally granted an extension of time for providing of comments. However the Member requests that your comments be received at the Tribunal by 29 August 2006.
IF YOU DO NOT GIVE COMMENTS BY 29 AUGUST 2006 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE.
By means of a submission dated 26th August 2006, which appears to have been faxed to the Tribunal on the evening of 28th August, the Second Applicant, through his migration agent, commented on the matters contained in the Tribunal's letter of 27th July 2006. A copy of that letter appears at pages 128 through to 132 of the Court Book.
The Tribunal went on to make a decision. There was no further hearing. It is clear that the Tribunal made the decision on the basis of the written material and on the Tribunal Member listening to the tape of the hearing. The Tribunal also considered the description of the hearing contained in the earlier Tribunal decision.
The Tribunal quoted from that summary of the proceedings of the hearing, and those quotes appear at pages 153 to 155 of the Court Book.
The Tribunal went on to say that it had listened to the tape recording of that hearing, and was satisfied that the summary was a fair summary of the evidence given by the father and mother. The other Applicant, the son, did not give evidence.
The Tribunal considered subsequent information provided to the Tribunal by the Applicant father, and also considered the written comments provided by the Applicant father in reply to the s.424A letter of 27th July. A summary of those comments appears at pages 158 and 159 of the Court Book.
The Tribunal’s findings and reasons
The Tribunal's findings and reasons are set out on pages 160 through to 163 of the Court Book. The Tribunal referred to a number of inconsistencies in the claims by the Applicant father and the Applicant son, and particularly considered the fact that the parties had had recourse to the services of no fewer than three migration agents. In passing, it would appear that one of the migration agents appears not to have served the Applicants very well.
The Tribunal went on to find that the father's evidence about activities in China between 1993 and 1995 was vague and lacking in detail, and did not accept that the father was the target of an investigation by the authorities in the People's Republic of China during that time.
The Tribunal did not accept that the father is, or was, regarded as a dissident, and was not satisfied that would be placed at risk of persecution if he were to return to China, and was not satisfied that the other two Applicants would face a risk of persecution because of any association with him.
The Tribunal noted that the son had appeared to have made inconsistent claims, and that an assertion in the original statement had been effectively denied by the mother at the Tribunal hearing, and denied by the father in the submission dated 28th August 2006.
The Tribunal noted that in the absence of anything to indicate that the son had any political views of his own, the Tribunal found that he did not face persecution in China because of any political opinions held by him.
The Tribunal went on to note, at page 161 of the Court Book, that the remainder of the son's claims were based upon assertions that his father was involved in political activities of various kinds, and that the family had suffered persecution as a result, but went on to note the son's claim that he had been refused an education in China because of his father's adverse political profile.
The Tribunal referred to its letter of 27th July 2006, where the Applicant had made no such assertion in his original statement. He in fact stated that he had attended school in China between 1996 and 1997. The Tribunal did not accept the evidence about the claim that the son's education had suffered as a result of the father's activity.
In short, the Tribunal was not satisfied that any of the Applicants had a well founded fear of persecution in China for a Convention reason, and affirmed the decision not to grant the Applicants Protection (Class XA) visas.
The application for judicial review
The Applicants have sought a review of this decision from this Court. In an amended application filed on 8th December 2006, the Applicants complained that the Tribunal's decision is in breach of s.425 of the Migration Act because the Tribunal did not invite the First Applicant, or either of his parents, to appear to give oral evidence.
The amended application goes on to set out particularly those claims as follows:
(a)The Tribunal did not comply with its obligations under s.422B of The Migration Act 1958 (‘The Act’) of natural justice hearing rule.
(b)The Tribunal did not comply with its obligations under s.425 (1) of the Migration Act 1958 (‘The Act’) to invite me to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(c)
The Tribunal did not comply with its obligations under
s.425 (2) (a) of the Migration Act 1958, to decide the review in my favour without inviting me to appear before the Tribunal.
(d)
The Tribunal did not comply with its obligations under
s.425 (2) (b) of the Migration Act 1958 to decide the review without my appearing under my consent.
The application goes on to say that there were procedural errors in the Tribunal's decision constituting an absence of natural justice.
The Second Applicant father attended Court to make submissions on behalf of all three Applicants. I asked in particular him to expand on the claim of a breach of procedural fairness or a denial of natural justice under s.422B.
The explanation of that claim goes back to the basic claim of a failure by the Tribunal to invite the Applicants to attend the hearing to give evidence.
The Applicant father said he had provided comments in answer to the Tribunal's letter of 27th July 2006, within the time limit provided by the letter of 21st August 2006. In short, the entire claim is that the proceedings were fatally flawed by the failure of the Tribunal to hold another hearing.
For the Respondent Minister, Mr Leerdam, solicitor, has provided both written and oral submissions to the effect that there was no requirement under s.425 of the Act for the Tribunal to invite the family to a second hearing to give further evidence.
He submitted that it was clear from the Tribunal's decision that the Member had listened to the tape recording of the first hearing and found that the decision was a fair summary of the evidence given by the Applicant mother and father.
After considering that evidence, the Tribunal sent a letter the provisions of s.424A of the Act, of the Applicant, and after receiving a response was satisfied that the decision was able to be made on the current material.
The Respondents rely on the decision of the Full Court of the Federal Court of Australia in SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 at [39], where the Full Court said, quote:
Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s.414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.
At the hearing, Mr Leerdam made an oral submission that in the alternative to the contention that there was no obligation to provide a second hearing when the application was remitted to the Refugee Review Tribunal, that if there had been such an obligation then the right to a hearing would have been lost by means of failure to comply with the time limit for comments contained in the Tribunal's letter of 27th July 2006.
The letter of the Tribunal to the Applicants dated 21st August 2006 did not make a formal extension of time insofar as any rights to a hearing are concerned, but did take a commonsense approach by allowing a further period of time to provide comments.
I was referred to the decisions of the Federal Court in M v Minister for Immigration & Multicultural Affairs [2006] FCA 1247; Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201.
In my view, the situation in this case is not identical to the factual situation in either M v Minister for Immigration and Multicultural Affairs or Minister for Immigration, Multicultural and Indigenous Affairs v Sun.
In any event, the letter of the Tribunal of 21st August, which makes no mention of the effect of, say, s.424C of the Migration Act, does not, to my mind, do anything more than provide an extension of time for providing written comments in reply to the letter of 27th July 2006.
It contains an undertaking that the Tribunal would not make a decision on the review until 29th August 2006, the deadline set out in the letter, had expired. It does no more than that, and it should not be read as doing anything more than that.
In my view, that point is somewhat academic, as the basic matter to be decided is whether or not the Tribunal breached s.425 of the Act by not inviting the Applicants to attend the further hearing.
The fact is, of course, that there was no obligation to hold a second hearing. The Full Court has made that quite clear in SZEPZ, to which I have previously referred.
The matter has also been dealt with on earlier occasions in SZAGF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1448 at [13], [16] and [17], and in SZHQG v Minister for Immigration and Anor [2006] FMCA 1275 at [27].
The contention by the Applicants that the Tribunal was under the obligation to hold a second hearing is misconceived. The Tribunal had held a hearing. The Tribunal was entitled to take into account information of claims that had been made to the earlier Tribunal at the hearing. The Migration Act and the Migration Regulations do not require that the Tribunal, in the decision under review before me, should have treated the hearing before the earlier Tribunal as if it had never existed.
When the Court made orders by consent setting aside the decision of the Tribunal, it was the decision that was set aside. There was no finding that the hearing itself was in some way invalid, or that there was some failure of a procedural nature in the hearing.
It was not the hearing that was set aside, and the Tribunal had no obligation to regard the evidence before the Tribunal hearing as if he had not been given. It was the decision that was set aside, and in the Court remitted the Applicant's application to the Tribunal for re-determination.
The Court did not order a re-hearing, even if it had the power to do so. What the Tribunal did was consider the evidence given to the Tribunal at the first hearing.
It then, in a lengthy letter of 27th July 2006 under the provisions of s.424A of the Migration Act, sought comments from the Applicants on some nine points, and made quite clear to the Applicants why that information was important, and why there was a necessity to comment.
The Tribunal gave a de facto extension of time to provide comments, and it is clear from the decision that the Tribunal considered those comments. But that in no way required the Tribunal to hold a further hearing.
The Applicant father has told the Court that he was expecting a further hearing so that he could provide clarification for things that needed to be clarified. He was not able to say what they were, and I see no reason why, if clarification was required, that such clarification could not have been in writing, as indeed the Applicant's migration agent provided a submission of some length and detail in answer to the Tribunal's letter of 27th July 2006. If there was anything else that needed to be clarified, then the opportunity was provided in the submission to the Tribunal.
I am satisfied that no jurisdictional error has been made out. The decision is a privative clause decision under the provisions of s.474 of the Migration Act.
It follows that the application will be dismissed.
There is an application for costs on behalf of the Respondent Minister against the Second and Third Applicants, who are both adults. No costs are sought against the First Applicant, who is an infant. The Second Applicant has told the Court that he and his wife do not have the funds required to meet that order for costs.
I am quite prepared to accept the fact that they do not have those funds. As the Applicant said, if they had that amount of money they would have obtained the services of a lawyer to appear for them. Whilst I am satisfied that the Applicants do not presently have the funds, that is not, of itself, a reason not to make a costs order in favour of a successful party.
The Applicants have been wholly unsuccessful in their claim, and there is no reason to depart from the usual practice, that a successful party should be entitled to a costs order. It is a matter that I will take into account and allow you time to pay. In the circumstances I will allow five months to pay. I am satisfied the amount of $4500 which is sought is an appropriate figure.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 21 February 2007
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