SZAGF v Minister for Immigration & Anor

[2005] FMCA 1448

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAGF v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1448

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 – Applicant a citizen of Serbia and Montenegro claiming a fear of persecution for political reasons.

Judiciary Act 1903 (Cth), s.39B.
Migration Act 1958 (Cth), s.475A.

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Commissioner for Australian Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27

Applicant: SZAGF

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG 3391 of 2004

Delivered on: 23 September 2005

Delivered at: Sydney

Hearing date: 17 August 2005

Judgment of: Scarlett FM

REPRESENTATION

Counsel for the Applicant: Mr Archibald

Counsel for the Respondent: Mr Bromwich

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That leave be granted to join Refugee Review Tribunal as Second Respondent.

2. That the Application is dismissed.

3. That the Applicant is to pay the First Respondent’s costs fixed in the sum of $5,650.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3391 of 2004

SZAGF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 30^th September and handed down on 26^th October 2004. The decision of the Tribunal was to affirm the decision of the delegate of the Minister not to grant a protection visa to the Applicant.

2. The Applicant is a citizen of Serbia and Montenegro, having been a citizen of the former Yugoslavia, who last arrived in Australia on

   
   

   13^th February 2001. He applied for a protection visa on 10^th August 2001 claiming a well-founded fear of persecution for political reasons, especially as his father had been appointed as the Yugoslav consul in Sydney by the former government of Slobodan Milosevic. 

3. A delegate of the Minister refused his application for a protection visa so he applied to the Refugee Review Tribunal for a review of that decision.  The Refugee Review Tribunal affirmed the decision of the delegate not to grant the application for a protection visa. The Applicant sought a review of the Tribunal's decision by the Federal Court which quashed the Tribunal's decision and remitted the matter to the Tribunal.  A differently constituted Tribunal heard his application for review on 22^nd July 2004.  The Tribunal made its decision on

   
   

   30^th September and handed the decision down on 26^th October 2004.  The Tribunal affirmed the decision not to grant a protection visa to the Applicant.

The Applicant's Amended Application

1. In his Amended Application filed on 31^st  March 2005 the Applicant seeks orders:

   i)That the RRT decision be declared void;

   ii)That the application for review of the delegate's decision should be remitted to the Tribunal for rehearing according to law; and

   iii)Costs.

2. The Amended Application sets out two grounds: 

   1)     that the Refugee Review Tribunal erred in the exercise of its jurisdiction in that it took into account irrelevant considerations and failed to take account of relevant considerations in a manner sufficient to constitute jurisdictional error; and

   2) the Tribunal in the exercise of its jurisdiction failed to comply with a requirement of the natural justice hearing rule, that being section 424A of the Migration Act 1958.

3. The Applicant particularised the first ground in this way: in its decision the second Tribunal took into account the second Tribunal's understanding of the evidence given by the Applicant at the hearing before the first Tribunal on 10^th February 2003. This was an irrelevant consideration in that the first decision had been quashed. 

4. The Tribunal in the decision under review referred extensively to the evidence before the previous member. In its findings and reasons the Tribunal made a finding in relation to a claim that the Applicant had made at the hearing before the first Tribunal and even found this claim to be implausible. This was an irrelevant consideration as the first decision had been quashed.  The Tribunal in the decision under review expressed its agreement with the view of the first presiding Tribunal member that there was no reason that the Applicant would be considered different from the many other people in Serbia who had supported Milosevic.  The views of the first presiding Tribunal member were irrelevant to the exercise of the Tribunal's jurisdiction.

5. The particulars of the second ground, namely failing to comply with the natural justice hearing rule being section 424A of the Migration Act, were these:

   i)The reason or part of the reason for the Tribunal's decision to affirm the decision of the delegate comprised the evidence given by the Applicant at the first hearing and the Tribunal's understanding of it;

   ii)The fact that the second Tribunal member expressed agreement with the finding of the first Tribunal that there was no reason why the Applicant would be considered different from the many other people in Serbia who had supported Mr Milosevic; and

   iii)The Tribunal in this decision failed to give this information to the applicant in the manner required by section 424A and failed to ensure that the Applicant understood why it was relevant or invite the Applicant to comment on that information.

The Applicant's submissions

1. In his submissions on behalf of the Applicant Mr Archibald of counsel made these points about the first ground:

   i)The Tribunal had relied on its understanding of the evidence given by the Applicant to the earlier Tribunal hearing to find against him on the basis of a lack of credibility.  That understanding came from the text of the first Tribunal decision which had been set aside by the Federal Court;

   ii)By acting in this way the Tribunal had made a jurisdictional error or failed to exercise the jurisdiction conferred on the Tribunal by the Migration Act;

   iii)The function of the Tribunal under sections 411 and 414 of the Act was to review the decision to refuse to grant a protection visa to the Applicant;

   iv)By section 420 of the Act the Tribunal is required to exercise its jurisdiction in a manner that is fair, just and according to substantial justice. There is a failure of substantial justice and a lack of fairness in the Tribunal relying on its understanding of a claim made at the earlier hearing and extracted from the text of the decision that has been set aside;

   v)The Tribunal's error went to a critical matter, the Applicant's credibility, and was based on matters specific to the Applicant; that is, his earlier evidence;

   vi)The Tribunal did not put its understanding of that evidence to the Applicant before deciding against him.

2. As to the second ground, failure to comply with section 424A of the Act, Mr Archibald submitted that:

   i)The Tribunal's understanding of the earlier evidence does not come within the exception contained in section 424A(3)(b);

   ii)If the Tribunal considered that this information would be the reason or part of the reason for affirming the delegate's decision, the Tribunal was obliged to give particulars of that information to the Applicant and to ensure, as far as was reasonably practicable, that the  Applicant understood why it was relevant to review;

   iii)The Tribunal's understanding was not information that the Applicant gave for the purpose of the application.  It was the earlier Tribunal's summary of that evidence in the earlier decision upon which the Tribunal relied;

   iv)To the extent that it may be said that the Tribunal took into account the evidence given by the Applicant to the earlier hearing rather than the Tribunal's understanding of that evidence, this should have been given to the Applicant under section 424(1). That evidence does not come within the exception in section 424A (3) (b) as it was not information that the Applicant gave for the purpose of the application; that is, the second application to the second Tribunal. But rather, it was information given to the first Tribunal.

3. In summary, counsel for the Applicant submitted that when the Tribunal expressed agreement with certain conclusions reached by the first Tribunal and referred to country information cited in the earlier decision the Tribunal was relying on matters that occurred at the first Tribunal hearing and aspects of the earlier decision.  To this extent the Tribunal was not exercising an independent mind in the decision‑making process. 

4. Finally, and in summary, the Applicant's counsel put to the Court that the Tribunal had erred by taking into account the earlier decision that had been set aside by the Federal Court. Section 424A applied to the earlier decision to the extent that the Tribunal relied upon that decision.

5. For the Respondent minister Mr Bromwich of counsel made these submissions about the Applicant's first ground:

   i)The proposition that information provided to the first Tribunal hearing and the reasoning process as set out in the first Tribunal decision was irrelevant considerations is misconceived. Taking into account a particular consideration or failing to take into account a particular consideration cannot constitute jurisdictional error unless the consideration is one which on the proper consideration of the Migration Act or Migration Regulations is "made compulsorily relevant" or is prohibited (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J). There is nothing in the Act or Regulations that prohibits the Tribunal from taking into account the claims made and evidence given by the Applicant to the first Tribunal;

   ii)The Tribunal was required to consider all the claims that the Applicant put forward in support of his application for review, including those that had been put before the earlier Tribunal, so long as they had not expressly or impliedly been abandoned (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389);

   iii)The Tribunal member was entitled to take into account information and claims that the applicant had made to the first Tribunal in assessing the Applicant's credit;

   iv)The Tribunal did consider the Applicant's claim made to the earlier Tribunal that the Applicant was the only person under the age of 30 who supported the Milosevic regime, but rejected that claim as being implausible for the same reason that the earlier Tribunal had done;

   v)A conclusion that there is an inconsistency between two pieces of information is not of itself information for the purposes of section 424A(1);

   vi)A decision-maker is not required to expose his or her reasoning process and advise of any adverse conclusion that has been arrived at which would obviously be open to it on known material (see Commissioner for Australian Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592);

   vii)The transcript of the hearing and the reasons of the second Tribunal member make it clear that although he agreed with the earlier Tribunal in certain respects, the member was applying his own reasoning process and drawing his own conclusions on the material before him;

   viii)The second Tribunal member did not err by taking the earlier decision into account merely because it had been set aside by the Federal Court on different grounds;

   ix)The Migration Act and Regulations do not require that the Tribunal in the decision under review should have treated the earlier hearing and reasons, particularly claims made and evidence given before that earlier Tribunal, as if they had never existed.

6. In respect of the second ground, Mr Bromwich submitted that it is not correct to say that the exception in section 424A (3) does not apply to information given by the Applicant to the first Tribunal hearing. The word "application" referred to in section 424A(3) is the application for review to the Tribunal, not a particular hearing of that application by a particular Tribunal member (see Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 at 33-34, paragraph 17, 38-39 paragraph 35). Information provided by the Applicant to the earlier Tribunal was plainly caught by section 424A (3) (b) so that section 424A (1) does not apply.

Conclusions

1. In my view, with respect, the submissions by counsel for the Respondent set out the law as I understand it to be. I adopt those conclusions.

2. Whilst it should be quite clear that the earlier decision was set aside by the late Hill J in the Federal Court, it was the decision that was set aside or quashed and not the hearing itself.  It was not the information or evidence given to that Tribunal that the Federal Court's ruling made inapplicable, but the decision reached by the first Tribunal member on the basis of that evidence and information.  In my view, therefore, it was open to the Tribunal to consider the evidence and other information given to the earlier Tribunal hearing. 

3. The understanding of the second Tribunal as to what evidence was given to the first Tribunal hearing is, to my mind, no more than a recounting or a summary of what that evidence was.  It does not contain within it an interpretation or, more seriously, a misinterpretation of what that evidence was.  It should be borne in mind that the decision by the Federal Court did not lead to the conclusion that the understanding of the first Tribunal as to the evidence before it was somehow incorrect or flawed. 

4. The country information which was recited by the second Tribunal in its decision was purely a quote from the country information given to the earlier Tribunal. In my view, the Migration Act and the Migration Regulations do not prohibit a Tribunal from taking into account earlier material.

5. In particular, I am of the view that I should follow the decision in Al Shamry.  The reasoning that I take from Al Shamry is that information means information given for the general purpose of the application rather than to a specific and separate hearing which in this case had its decision quashed. 

6. I would comment that it is perhaps inadvisable for a Tribunal member in the case of the second Tribunal member on considering information or evidence in an earlier hearing to express a conclusion in the terms of agreeing with the earlier conclusion.  It must be made clear that the consideration of the earlier material involves a consideration of that material but the Tribunal making its own decision as to what conclusions should be drawn from that material. 

7. Whilst, in my view, I believe that no jurisdictional error can be found in expressing a decision in terms of agreeing with the conclusion of an earlier Tribunal member, to my mind it is a practice that would be better left alone.  The Tribunal member must make it quite clear that he or she is considering information and evidence independently and that the Tribunal member's decision is that of the Tribunal. 

8. To my mind, there is no jurisdictional error and the application will be dismissed. 

9. There is an application for costs on behalf of the Respondent.

   
   

   An amount sought on a party-party basis is $7000.00, which would take into account counsel's fees, what I am told was a directions hearing where the Applicant initially did not attend, the preparation of an affidavit for a later directions hearing in case the Applicant did not attend again, the relatively late service of an Amended Application which contained substantially different but, in my view, well-argued grounds, and a notice to produce which ultimately was not relied on.

10. Mr Archibald of counsel has put to me that even taking those matters into account the amount sought is definitely high. He points out that the notice to produce was in fact resolved by means of a telephone call and it certainly did not play any part in the proceedings before me. 

11. Costs of course are discretionary and whilst I do consider that this is an appropriate situation where the party who has been successful should be entitled to an award of costs, the amount of costs that I would award on a party-party basis is one which I will take into consideration the various matters including the significant size of the Court Book, and I will also take into consideration the lump sum set out in the Federal Magistrates Court Rules. In my view, a figure that would be appropriate in the circumstances would be $5650.00. The Applicant is to pay the Respondent's costs fixed in the sum of $5650.00.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  4 October 2005