SZAHW v Minister for Immigration - [2003] FMCA 520

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAHW & ORS v MINISTER FOR IMMIGRATION

[2003] FMCA 520

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Fiji – whether applicant misled by RRT into believing that favourable country information had been received and considered – whether the applicant could have altered the outcome by referring to that information.

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
NAAF v Minister for Immigration [2003] FCAFC 52

NADR v Minister for Immigration [2002] FCAFC 293
NADZ v Minister for Immigration [2003] FCA 118

Re Minister for Immigration; ex parte Lam (2003) 195 ALR 502
S53 of2002 v Refugee Review Tribunal [2003] FCA 1173

First Applicant:

Second Applicant:
Third Applicant:

SZAHW

SZAHX
SZAHY

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ462 of 2003

Delivered on:

14 November 2003

Delivered at:

Sydney

Hearing date:

14 November 2003

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Solicitors for the Applicant:

Adrian Joel & Co

Counsel for the Respondent:

Mr S Lloyd

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

For the purposes of Part 11 of the Federal Magistrates Court Rules 2001 (Cth), SZAHW is appointed as litigation guardian of SZAHY, and SZAHW is relieved of the obligation of filing an affidavit of consent or of notifying the respondent of his appointment.
The application is dismissed.
The first and second applicants are to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ462 of 2003

SZAHW, SZAHX, SZAHY

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 20 March 2002 and handed down on 16 April 2002. The RRT affirmed a decision of a delegate of the Minister not to grant protection visas to the applicants. There are three applicants, a husband, wife and child. The relevant claims were made by the husband. I will refer to him in these reasons as the applicant.
The general background to the matter is set out in paragraph 1 of written submissions prepared by Mr Zipser, for the applicants, and I adopt that paragraph for the purposes of this judgment:
The relevant facts in this matter are as follows:
a)In March 1998 the applicants arrived in Australia. (court book, page 77.1) The applicants comprise the primary applicant who is the husband, his wife and child.
b)In January 2001 the applicants applied to the Department of Immigration and Multicultural Affairs for protection visas. (court book, page 77.1).
c)On 1 March 2001 a delegate of the Minister made a decision refusing to grant the applicants protection visas. (court book, pages 46-55) The reasons for the delegate’s decision are contained in a document titled “Protection Visa Decision Record”. In Part B of the decision, titled “Evidence before me”, the delegate lists the country information documents used in making the decision. (court book, page 50) The delegate refers to and quotes a further document at page 5 of the decision. (court book, page 52.7) These documents are referred to in these submissions as “the Part B documents”.
d)The applicants applied to the RRT for review of the delegate’s decision. (court book, pages 59-62).
e)On 2 April 2001 the RRT sent a letter to the primary applicant (court book, pages 64-65). The letter stated in part:
We have asked the Department to send a copy of its documents about your case to the Tribunal. When we receive the Department’s documents, the Tribunal will look at your papers and decide whether it has jurisdiction to consider your application. If so, it will then look at your papers along with any other evidence on the Tribunal file to determine whether it can make a decision in your favour.
f)On 21 February 2002 the RRT sent a further letter to the primary applicant (court book, pages 67-68). The letter stated in part:
The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone.
g)On 19 March 2002 there was a hearing before the RRT (court book, page 67).
h)On 20 March 2002 the RRT made a decision. (court book, pages 76-90). The RRT affirmed the delegate’s decision not to grant the applicants protection visas.
i)The RRT handed down its decision on 16 April 2002. (court book, page 76).
j)In March 2003 the applicants applied to the Federal Magistrates Court for judicial review of the RRT’s decision.
k)The activities of the primary applicant between the date the RRT handed down its decision (April 2002) and the date he filed an application in the Federal Magistrates Court (March 2003) are explained in his affidavit sworn 11 November 2003.
Apart from the application, the applicants rely upon the applicants' affidavits made on 16 October 2003 and 11 November 2003, as well as an affidavit by the applicants' solicitor, Adrian Joel, made on 16 October 2003. The applicant was cross-examined upon his two affidavits. I concluded, as a result of that cross-examination, that the applicant placed his trust in a solicitor, Ms Byers, whom he had instructed to act for him in relation to his visa application, including in relation to the proceedings before the RRT.
The applicant's evidence was that he discussed with Ms Byers correspondence he received from the Department or from the RRT and he relied upon her to deal appropriately with it. The applicant is, of course, not a legal practitioner himself, and reasonably relied upon the skill and judgement of a solicitor whom he had instructed to act for him.
The application asserts that the proceedings before the RRT were unfair, amounting to jurisdictional error, in that the RRT sent a letter to the applicant stating that it had looked at all the material relating to the application, whereas, in fact, the RRT had not looked at all the material relating to the application. It is alleged that the applicant was misled by this representation, and that unfairness thereby resulted. This is, obviously, an argument derived from the decision of the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. Mr Zipser, for the applicants, relies in particular upon the judgment of Hayne J, especially at paragraphs 256 and 257.
I agree with Mr Zipser that, as a general proposition, if a representation is made by the RRT to an applicant which is misleading, and which induces an applicant thereby to act to his or her detriment in relation to the proceedings, by acting on an assumption that particular material assisting the applicant's case is before the RRT and would be taken into account by the RRT when, in fact, the material is not taken into account by the RRT, then procedural unfairness could be established which would vitiate the decision of the RRT.
Mr Zipser also took me to the decision of the Full Federal Court in NAAF v Minister for Immigration [2003] FCAFC 52, in particular at paragraph 31, which deals with the issue of what level of certainty is required on the question of whether the unfairness established in a particular case means that a different result might have been obtained if the misleading event had not occurred. The Full Federal Court observed in that case that it would be sufficient if an applicant could establish that once a non observance of requirements of procedural fairness is established, it is only if it is positively concluded that the observance of the requirements could not possibly have produced a different result that the decision impugned will be allowed to stand. Mr Zipser also took me to the decision of the Full Federal Court in NADR v Minister for Immigration [2002] FCAFC 293, in particular at paragraphs 22 and 24. That decision provides some further useful explanation of the principle established in Muin. That said, it is also clear from the decision of the High Court in Re Minister for Immigration; ex parte Lam (2003) 195 ALR 502 that procedural unfairness is not simply a theoretical concept. It is necessary for an applicant to establish some practical unfairness.
In his written submissions, Mr Lloyd refers to the decision of His Honour Hely J in NADZ v Minister for Immigration [2003] FCA 118, as further elaborating upon the matters that need to be established in order to sustain a case based upon the decision in Muin. The first of those is that the RRT told the applicant that it had asked the secretary to send a copy of the plaintiff's documents, and when they were received it would look at them along with other evidence on the RRTs file to determine whether it could have made a favourable decision. The second is that the RRT informed the applicant that it had looked at the material relating to the application.
The applicant, in his first affidavit, annexed two letters from the RRT. The first is dated 21 February 2002, addressed to him at his home address at the relevant time, and also copied to his solicitor, Ms Byers. That letter relevantly states as follows:
The Tribunal has looked at all of the material relating to your application, but it is not prepared to make a favourable decision on this information alone. You are now invited to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons.
The second letter is dated 22 March 2002, again addressed to the applicant at his home address, and copied to his solicitor. That letter relevantly states:
The Tribunal has considered all the material relating to your case and has made a decision.
The letter then goes on to identify when the decision will be handed down. The applicant deposes that he received both those letters. In his later affidavit, in paragraph 7, the applicant refers to a letter addressed to him dated 2 April 2001 (court book, page 64). That letter was also addressed to the applicant at his then home address, and also copied to his solicitor. That letter explained in some detail how the matter before the RRT would proceed. The applicant deposed that he was not sure whether or not he received that letter, but if he had received it he would have read it roughly and then telephoned his solicitor for an explanation.
On cross-examination, the applicant, while not completely certain, thought that he must have received the letter and the he probably did discuss it with his solicitor. It was apparent from his evidence that all correspondence he received he discussed with his solicitor, probably both to ensure that the solicitor had the correspondence and also to satisfy himself that the solicitor would take any necessary action on it.
The third element of the applicant’s claim to resolve is whether the plaintiff believed that the RRT had received and considered the relevant documents. There is certainly a statement in the letters annexed to the first of the applicant's affidavits that the RRT had considered all the material relating to the application which the applicant could have taken as a representation that the RRT had considered all of the documents that were considered by the Minister's delegate, and referred to generally as Part B documents. It would have been reasonable for the applicant to have drawn that conclusion. However, the applicant must also establish that some of the Part B documents were favourable to him, and that those documents had not been considered by the RRT Member. Mr Zipser identified two documents among the Part B documents which, in his submission, were favourable to the applicant. The first of those appears at page 31 of the annexures to Mr Joel's affidavit and is headed "A Flawed Transition from Village Rulers." The second is a Department of Foreign Affairs and Trade country information report entitled "Fijians Seeking Asylum in Australia", which appears from page 42 of the annexures to Mr Joel's affidavit. Mr Zipser placed particular emphasis on a particular passage of the latter document. It is apparent that the second document must have been considered by the RRT because it was relevantly reproduced in the decision record of the delegate. I find that the second document was considered by the RRT.
The first document is identified in the Part B list of documents, but was not reproduced. The question then is whether it was considered by the RRT member. There is no reference to that particular document by the RRT member in the reasons for decision of the RRT. Mr Zipser submitted, and there is some authority to support his submission, that in those circumstances it is open to a court to conclude that the document was not referred to or considered by the presiding member. However, that does not necessarily follow. It may have been that the document was not considered relevant to the determination of the issues by the RRT. The particular document headed, "A Flawed Transition from Village Rulers" is an article appearing in The Australian newspaper on 14 June 2000. The article refers to comments made by a Lieutenant Colonel Filipo Tarakinikini, in the aftermath of the coup instituted by Mr George Speight. I put to Mr Zipser that the article and the observations by Lieutenant Colonel Tarakinikini could simply be observations on the political situation in Fiji at that time. Mr Zipser submitted that the article and the observations by the Lieutenant Colonel indicated a more deep-seated problem in Fiji in terms of the conflict between ethnic Fijians and Indo-Fijians, and indicated ongoing instability. Both interpretations are open, although on my reading, the article appears more related to the political situation in the aftermath of the Speight coup.
I think it likely that the particular article was not referred to by the presiding member but, in my view, there was no need for the article to be referred to. In the first place, the RRT was dealing with the risk faced by the applicants at the time the RRT was dealing with the matter and at that time it was clear that there had been significant political improvements in Fiji since the Speight coup. To the extent that the article was a commentary upon the political situation in Fiji at a particular point in time, circumstances had changed significantly and the circumstances as they applied on 14 June 2000 were of little, if any, relevance. Secondly, to the extent that the article was a commentary on more deep-seated ethnic tension in Fiji, there was ample other material before the RRT which the RRT did refer to which made the same point.
Mr Lloyd, for the Minister, referred me to page 83 of the Court book, where the RRT had identified country information referring to ethnic tension between ethnic Fijians and Indo-Fijians. It was clear that this was a long standing problem. In addition, the applicant's adviser had herself put material before the RRT, which is referred to by the presiding member (court book, page 89). At that page, the presiding member said:
Should he choose to become involved with another candidate from the Fiji Labour Party and opponents target him I accept the independent material cited above in preference to the material provided through the Applicant's adviser which is dated August 2000 and January 2001. The material cited above is more recent and therefore I give it greater weight and find that the Applicant as an ethnic Indian could access the services of the law enforcement agencies in Fiji and rely on the state for protection from any harm he may fear.
The material put forward by the applicant's adviser is relevantly reproduced on page 81 of the court book. I find that the article entitled, "A Flawed Transition From Village Rulers" did not add, in any material way, to the information already before the RRT in relation to ethnic tension in Fiji. In terms of its commentary upon the political situation in Fiji at a particular time, it was not relevant to the resolution of the issues before the RRT. That circumstance alone is probably sufficient to dispose of the application before me. However, for completeness, I also find that the applicant was not misled into believing that it was unnecessary for him to draw the favourable information identified by Mr Zipser to the attention of the RRT.
The applicant, in his evidence, stated that he relied upon his solicitor to deal with correspondence from the RRT and to put material before the RRT. In the circumstances, the issue is not so much whether the applicant was misled, but whether the applicant's legal adviser was misled. There was no evidence before me that the legal adviser was misled. I note that in S53 of 2002 v Refugee Review Tribunal [2003] FCA 1173 at paragraphs 17 and 18, Her Honour, Branson J reached a similar conclusion. Further, even if the applicant had been misled, and even if he would have taken steps to correct the situation by putting the relevant article before the RRT, I do not think that it could have made any difference.
The RRT was already well aware of the general situation in Fiji and the article in issue did not add materially to that knowledge. I find that there is no real possibility that the applicant could have done anything to alter the outcome before the RRT by specifically drawing the RRT’s attention to the article in question. In fact, when the applicant did appear before the RRT, he did not produce anything further to the RRT, even though he knew, from the correspondence received from the RRT, that the RRT was not prepared to make a favourable decision based on the material before it.
I find that there was no procedural unfairness in the conduct of the proceedings before the RRT, and accordingly, no jurisdictional error.

I will, therefore, dismiss the application.
On the question of costs, the applicant being unsuccessful, Mr Lloyd has sought an order for costs and has informed me that the solicitor and client costs imputed on behalf of the Minister are in the order of $5,500. Mr Zipser has not put any submissions on the question of costs.
I will order that the first and second applicants pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4000.
I will also order for purposes of Part 11 of the Federal Magistrates Court Rules2001 (Cth) that SZAHW be appointed as the litigation guardian of SZAHY. I relieve SZAHW of any obligation to file an affidavit of consent or to give notice to the Minister.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 28 November 2003