SBRF v Minister for Immigration
[2008] FMCA 163
•1 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SBRF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 163 |
| MIGRATION – Judicial review of third Refugee Review Tribunal decision – application for protection visa – application of s.91S of the Migration Act – utility of relief – application refused. |
| Migration Act 1958, ss.91S, 417, 424A and 476 The Constitution, paragraph 75(v) Migration Legislation Amendment Act 2001 |
| Plaintiff S157 v The Commonwealth (2003) 195 ALR 24 NBKM v Minister for Immigration and Citizenship (2007) FCA 1413 |
| Applicant: | SBRF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | ADG 267 of 2007 |
| Judgment of: | Lindsay FM |
| Hearing date: | 31 January 2008 |
| Date of last submission: | 31 January 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 1 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Burns |
| Solicitors for the Applicant: | McDonald Steed McGrath |
| Counsel for the Respondents: | Mr D’Assumpcao |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application for judicial review filed on 21 September 2007 do stand dismissed.
The Applicant do pay the First Respondent’s costs of, and incidental to, these proceedings fixed in the sum of FIVE THOUSAND DOLLARS ($5,000.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 267 of 2007
| SBRF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL |
Respondents
REASONS FOR JUDGMENT
Before me is an application for judicial review filed on 21 September 2007. The application is made pursuant to s.476 of the Migration Act 1958 (the “Act”). The applicant seeks orders by way of judicial review. This Court has the same original jurisdiction in relation to judicial review of migration decisions as the High Court has under paragraph 75(v) of the Constitution of the Commonwealth of Australia.
None of the provisions of s.476 of the Act which deal with the circumstances in which the Court cannot exercise the jurisdiction apply; in particular, the decision is not a primary decision. Section 474 of the Act, however, does apply, and the decision the subject of this application is a privative clause decision and must be regarded as final and conclusive unless the decision can be demonstrated to have been vitiated by jurisdictional error, as that concept was explained in relation to the provisions of the Act relating to migration decisions in Plaintiff S157 v The Commonwealth (2003) 195 ALR 24 and, more generally, as the concept was explained in cases such as Craig v The State of South Australia (1995) 184 CLR 163.
These proceedings are in fact a review of a third decision of the Refugee Review Tribunal in relation to this applicant. The first review was conducted in 2000. The applicant was unsuccessful, both before the delegate of the minister and before the Refugee Review Tribunal at that time. The application at that time was made on grounds entirely different to those advanced in the second and third Refugee Review Tribunal hearings.
The nature of the claim advanced by the applicants in 2000 is conveniently set out at CB 375. The applicant at that time contended that his name was Mark Sutufi. The female applicant associated with the principal applicant was then promoting herself as having the name of Denada Kabashi. The applicant contended that his entitlement to a protection visa and to refugee status under the Refugee Convention arose from a fear of his being persecuted by Serbs, arising out of what he said was his forced conscription into the Kosovo Liberation Army.
As I indicated, the applications that were promoted in 2000, both before the delegate and before the first Refugee Review Tribunal, were conducted by the parties under different identities. Notwithstanding the lack of success of that first hearing the minister, in 2001, exercised his discretion under s.417 of the Act and provided the applicants with three-year protection visas on humanitarian grounds. In 2004 they reapplied under the same identities they had applied under in 2000 and on essentially the same grounds; that is, in summary form, a fear of persecution by Serbian persons arising out of the applicant’s forcible service in the Kosovo Liberation Army.
In 2006, however, their false identities were uncovered. The delegate of the Minister refused their application and no claim under their real identities was pursued before the delegate at that time. Those circumstances are conveniently set out in the recitation of events which appears at CB 370. However, in respect of the application to the Refugee Review Tribunal arising from that second application the applicants were successful.
Before the second Refugee Review Tribunal in October 2006 the applicant now pursued a claim arising from his membership of a particular social group, said to be constituted by his family. This was a claim that had been successfully promoted by the applicant’s brother in 2000. In promoting this application the applicant said that their use of false names upon their arrival in Australia was related to their fear as to what would happen to them if they were to return to Albania under their real names.
The actual source of the blood feud said to give rise to the convention‑related fear is set out conveniently at CB 373, in particular at para. [27]. It was contended that in June 1999 the applicant’s cousin, one Martin Lleshi, killed someone by the name of Fran Kohler. His family invoked the traditional laws of the Kanun. Lleshi disappeared and hence other males of the Leschi family were at risk. The applicant’s brother Leke left Albania in December of 1999 and both he and his son made claims for protection when they arrived in Australia.
They were found to be refugees by the Tribunal, differently constituted in 2001. At CB 373 at para. [27] the Tribunal said:
… the decision record in that case has been submitted to me, along with a number of the documents used by Leke in support of his claim. The information about Leke’s claim – and its relevance to the present applicant – is set out below.
As I say, the applicants were successful before the second Refugee Review Tribunal but the decision of that Tribunal was successfully reviewed, on the Minister’s application, in proceedings that were determined by Brown FM. His Honour’s decision on that review commences at CB 331. The reasons why the Minister’s application on review was granted is set out at paras. [33] to [35] of His Honour’s reasons, which appear at CB 341:
33. I am satisfied that the present case turned on the consideration of one central question by the Tribunal, namely whether the first respondent was entitled to protection status because of his membership of a particular social group, namely the “L” family. This question clearly involved the necessity for the Tribunal to consider the application of section 91A to the circumstances of the first respondent’s case. As such, the Tribunal was required to disregard the fears of persecution held by the first respondent’s cousin “ML”. The cousin’s fears were based on his apprehension of retribution occurring to him because of his commission of a criminal act, namely the murder of a member of the “K” family. The Tribunal accepted that “L” shared the fears of his cousin “ML” for the same reason. Accordingly, pursuant to section 91S(a) the Tribunal was required to disregard the fears of both “L” and “ML” in assessing the first respondent’s claims for refugee status.
34.Although in its reasons, the Tribunal did acknowledge that article 1A(2) of the Refugees Convention had been qualified by section 91S of the Act, its reference was cursory and non-specific. In my view, it is clear from the Tribunal’s reasons that it did not consider its jurisdictional requirement to disregard the fears of both the first respondent’s cousin and brother, in assessing his claim for protection status.
35. In my view, it is clear that the Tribunal did not follow any of the exercise required of it by section 91S. Rather the Tribunal assumed that because of the fears of “ML” and “L”, the first respondent had similar fears. In my view, this amounted to a jurisdictional error in the sense envisaged by Craig’s case and Yusuf’s case.
The remitted hearing arising from Brown FM’s decision was heard by Tribunal member Wyndham. His decision is dated 14 August 2007. He affirmed the decision of the delegate of the Minister and these proceedings are in fact a review of his decision.
The Tribunal, in reaching its third decision, conducted no oral hearing. There were a series of s.424A letters set out in the determination, which canvassed matters that concerned the Tribunal. Essentially the Tribunal sets out in these letters their concerns in relation to what it says were lies told during the first application before the delegate and before the Refugee Review Tribunal, and what was said to be lies promoted by the applicants during the hearing before the delegate in respect of the decision before the member. Attention was drawn, in the s.424A letters, to the Tribunal’s concern that the whole substance of the earlier applications promoted by the applicants had been a complete fabrication.
Things got somewhat worse for the applicants during the course of the proceedings before the third Tribunal in that the Tribunal found that evidence had been provided to it of criminal activity on the part of the applicant, in Italy and Switzerland, which criminal activity was perpetrated under a variety of names. This material was put to the applicants during the course of the s.424A correspondence and was essentially denied by them. The denial has included the provision of an email from someone said to be an Italian policeman, which email the Tribunal found, itself, to be a fabrication.
The Tribunal’s findings in relation to credibility are most conveniently set out at CB 382 in two passages I propose to read into the transcript. Firstly, at 382.2 the Tribunal says this:
In the circumstances, I have no faith in any documents admitted by the applicant in support of his present application and I give them no weight. Neither do I have any faith in any claim made by the applicant since I have no way of knowing when he will stop attempting to mislead Australian authorities and tell the plain, unvarnished truth. He clearly has not stopped in relation to his written statements to the Tribunal presently constituted.
Further, at about point 3 on that same page:
Accordingly, I do not accept the applicant’s family is involved in a feud with the Kohler family. I therefore do not accept any of the claims that flow from that claim. I therefore do not accept that there is a real chance of his suffering harm amounting to persecution, in Albania, from such a feud.
The Tribunal noted that the applicant’s brother had succeeded on a similar claim. The applicant’s brother’s claim had been made prior to the amendments to s.91S of the Act that were effected by the Migration Legislation Amendment Act 2001. The effect of these amendments is described in the decision of the High Court in STCB v Minister for Immigration (2006) 231 ALR 556.
The Tribunal also had this to say at CB 382. Again I propose to set these matters out in full. This begins at about point 6:
Even if I were satisfied, which I am not, that the applicant’s family were involved in such a feud, the applicant’s claims amount to a claim to fear persecution for reason of membership of a particular social group; namely, his family. In considering such a claim, section 91S of the Migration Act would be relevant and in interpreting that provision I would be bound by the terms and reasons of the High Court’s decision in STCB v Minister for Immigration and Multicultural and Indigenous Affairs (2006) HCA 61 ….
Following that decision, and applying s.91S(a) it is clear that the applicant’s cousin, Martin’s fear of persecution would be for a reason other than those mentioned in Art 1A(2) of the Convention - namely, revenge for murder. Section 91S(a) would then require that fear of persecution to be disregarded. Section 91S(b)(i) would then require the applicant’s fear of persecution to be disregarded, since it would be reasonable to conclude that that fear would not exist if his cousin’s fear had never existed. And s.91S(b)(ii) would require that his father’s and brother’s fear of persecution be disregarded, since it would be reasonable to conclude that neither of those fears would exist either if the cousin’s fear had never existed. The result of disregarding the fears of persecution of the cousin, the applicant, the father and the brother would then be that the applicant would be treated as not having a well-founded fear of persecution for the reason of membership of a particular social group that consists of the (sic) his family.
The grounds upon which the application was made to this court were essentially two in number. Firstly, that there should have been a fresh oral hearing conducted by the third Refugee Review Tribunal; that is, that the whole review process had to be started again. Alternatively - and this was ground 2 - that the s.424A letters triggered the need for such a fresh hearing.
I am not persuaded by either of those contentions. The issue of the requirement of a fresh hearing upon a remitted review was dealt with by Siopis J in the decision of NBKM v Minister for Immigration and Citizenship (2007) FCA 1413. His Honour at [23] of that judgment relies upon an earlier decision of Liu v Minister for Immigration and Multicultural Affairs (2001) FCA 1362 in establishing that there is no absolute right to a hearing before the Tribunal member who decides the review.
Mr Tredrea, who appeared on behalf of the Minister before me, was not reliant on that decision, perhaps because it was a decision made at a time when the Migration Act was in somewhat different form, but Mr Tredrea did rely on the decision of SZEPZ v Minister for Immigration (2006) FCAFC 107, which decision in turn had been relied upon by the Federal Magistrate whose decision was the subject of the appeal before Siopis J.
At [16] of the decision in NBKM His Honour sets out a passage from SZEPZ, which was a decision of the Full Court of the Federal Court, at [39] as follows:
Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under section 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.
That is not the end of the matter, of course. There will sometimes be circumstances arising in a case which will mean that a second hearing is required. That circumstance is discussed by Siopis J in NBKM at [25] to [32] of his judgment, perhaps most conveniently encapsulated in his conclusion, in the second sentence of [32] as follows:
There was, therefore, no material change in circumstance which had the potential to expand the scope of the relevant issues beyond those the subject of the first hearing and the first decision.
An example of a case where a further hearing was required is that which is described in SZILQv Minister for Immigration and Citizenship (2007) FCA 942, and that was a case relied upon by Mr Ower who appeared on behalf of the applicant before me. The particular circumstances of that case which gave rise to the need for the second hearing are conveniently set out at [32] of that decision, which is a decision of Buchanan J.
There is nothing, in my view, inconsistent with what his Honour says in SZILQ with either the decision of NBKM or the Full Court decision of SZEPZ.
I am not sure, however, if the decision of Cowdroy J in SZHLM v Minister for Immigration and Citizenship (2007) FCA 1100 takes the principle further than those cases, when referring to SZILQ at [33] and [34]. In [34] in particular, Cowdroy J says this:
There is a further consideration. The original decision of the Tribunal, having been set aside had ‘no operative effect’: see SZILQ (2007) FCA 942. The reconstituted Tribunal was required to carry out its statutory functions as if the first hearing had not taken place. The Tribunal’s duty required it to seek further information under section 424A(1) and in the absence of a finding in favour of the appellant was required to invite the appellant ‘to appear before the Tribunal to give evidence and present arguments relating to the issue arising in relation to the decision under review’ pursuant to section 425 of the Act: see Applicant NAFF of 2002 221 CLR at 26 to 27.
If His Honour is there speaking of an invariable need for a fresh hearing on review - and I am not certain that he is - then what His Honour has to say there is contrary to the decision of the Full Court in SZEP and accordingly would not be followed by me.
In any event, even if I were wrong about that point, the other matter that arises in the context of this application is the utility point; perhaps better expressed as a futility point, which in my view is a matter that, in the circumstances of this case, is determinative.
There can be no doubt that the grant of relief after the finding of jurisdictional error is discretionary. There is no point in granting prerogative relief if the remitted review arising from the grant of such relief is bound to fail. Failure in this context must be, to use the expression used by Besanko J in Lee & Ors v Minister of Immigration and Citizenship (2007) FCA 62 at 48, “quite clear”.
I agree with Mr Ower that the test in respect of futility is forward looking, as described by Besanko J in that same decision at paras. [49] to [52] thereof.
As I have already indicated in the passage cited from Brown FM’s determination of the review from the second Refugee Review Tribunal hearing, His Honour has explicated the s.91S issue at the heart of the claim, after it was finally articulated by the applicants when they pursued their claim under their real identities. The third Refugee Review Tribunal hearing, unlike the second Refugee Review Tribunal hearing, considered the s.91S issue. In my view the consideration given to the s.91S issue in the passages previously referred to is clearly correct. In any event there was no challenge to those particular conclusions during the course of the application before me.
In the circumstances of this case, to hold that the grant of relief would have utility would entail me in positing that at the remitted hearing the applicant would jettison the claim as advanced before the delegate and as advanced before the Refugee Review Tribunal on two occasions. I am not prepared to do that. In particular, I am not prepared to do it because the applicant did not purport to eschew the fundamentals of his claim in that regard in the proceedings before me.
For the foregoing reasons the application for judicial review will be dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N. Julius
Date: 18 February 2008
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