FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBRO v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1890 |
| MIGRATION – Review of decision of RRT – whether the Tribunal fell into jurisdictional error through breach of s.424A Migration Act – where the applicant claims that there were several ways in which the Tribunal breached s.424A - where there are differing views on the interpretation of s.424A which purport to bind the lower courts – whether the Tribunal failed to address material claims of the applicant – whether the Tribunal made a material finding in the absence of probative evidence - where the Tribunal member relied upon a personal connection to confirm the veracity of information provided by the applicant – whether or not the decision of the Tribunal was affected by apprehended bias – whether or not the Tribunal ignored information which was found to have been credible, relevant or significant to the applicant’s claims. |
| Migration Act 1958 (Cth), ss.424A, 424A(3), 420(2)(a) |
| Applicant: | SZBRO |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2200 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 22 August 2005 |
| Date of Last Submission: | 5 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 23 December 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Mr J.A. Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The court declares that the decision of the Refugee Review Tribunal NO241315 made on 2 September 2003 is void and of no effect.
The court orders that the application be referred back to the Tribunal…
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- Case
- [2005] FMCA 1890
- Decision Date
CaseChat Overview and Summary
The court found that the RRT erred in its application of the law by not adequately considering the specific circumstances of the applicant. The court noted that the Tribunal’s reliance on a Department of Foreign Affairs and Trade (DFAT) report, which discussed the treatment of Muslim converts to Christianity in Iran, was problematic. The applicant argued that this report was not protected by s.424A(3) of the Migration Act because it pertained to a general class of persons rather than the specific individual. The court agreed with the applicant, finding that the report related to a class of persons rather than the specific applicant, thus it did not meet the specificity requirement under the statute.
The court further held that the RRT did not sufficiently address the specific evidence presented by the applicant concerning his own experiences and potential risks if returned to Iran. The court concluded that the Tribunal’s decision was flawed due to these errors in law and the inadequate consideration of the applicant’s individual circumstances.
The court declared the decision of the RRT void and of no effect. It ordered that the application be remitted to the Tribunal for reconsideration by a differently constituted panel. Additionally, the court ordered the respondent to pay the applicant’s costs in the sum of $5,000.
Orders
Orders of the court
1.
The court declares that the decision of the Refugee Review Tribunal NO241315 made on 2 September 2003 is void and of no effect.
2.
The court orders that the application be referred back to the Tribunal differently constituted to be heard and determined according to law.
3.
The respondent to pay the applicant’s costs assessed in the sum of $5,000.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The relevant parts of this report are extracted at CB 166. That report says: Our sources said it was unlikely/unusual that a member would be checked by authorities outside the church. There were cases where church members were questioned about their activities, but these queries usually came about through the outside contacts the members had had. There were also suspicions that the church might have been ‘infiltrated’ which might have led to greater knowledge by authorities about members’ activities. However, when members were called in for questioning by authorities, this seemed to be a rather ‘proforma’ affair in which they signed a statement declaring they would not get involved in evangelising again: there was rarely much follow up and jail sentences were no longer given out. The members then proceeded as usual with their activities (which were unapologetically evangelistic in nature). Our sources also commented on the situation of Muslim converts to Assembly of God church. Some 80% of the church’s congregation were Muslim converts. Even the pressure on this group had eased considerably since President Khatami took office in 1997. That said, those who had to declare their religion in order to have access to a passport or to do military service could often subsequently face discrimination. Members of the congregation were not allowed to lie about their religion, and telling the truth could and did result in those holding government jobs to be sacked. Conversion from Islam to Christianity still attractive negative attention and that was why many converts chose to go abroad. (DFAT, CIR No. 186/02 19 June 2002 CX65406).The applicant argues that this report was relevant because the Tribunal relied upon it to show that the applicant, as an apostate Muslim and proselytising Christian, would be able to return to Iran and practice his religion, including proselytising, without facing a real chance of suffering serious harm. Leaving aside whether the report does naturally lead to that conclusion, the question is whether or not it is a document that is protected by s.424A (3). The applicant says it is not so protected because the report related to an Iranian male applicant, as can be seen by the complete reproduction of the report found at CB 248. The respondent argues that the exception applies to information and the proper enquiry is to ask whether that information is about a particular person or just about a class of persons to which the applicant might belong. The information set out at CB 166 and in these reasons is clearly information about a general class of persons, being Muslim converts to the Assembly of God, and not the one particular Iranian male from an orthodox Armenian Christian family who was the subject of the DFAT report. The purpose of the exception set by s.424A(3) is to exclude information that can be readily obtained by any applicant and to ensure that information cannot be so obtained because it might be personal to an application or another particular person is provided. In NAMW v Minister for Immigration [2004] FCAFC 264, now partly overruled by SAAP v Minister for Immigration (2005) 215 ALR 162, the Full Court discussed the construction of s.424A(3) and the purpose of the procedural requirements imposed by s.424A. The Full Court quotes that Minister’s Second Reading Speech to the Act introducing s.424A and said at [129]: When s 424A (and its counterpart in respect of the Migration Review Tribunal, s 359A) was enacted by the Migration Legislation Amendment Act (No 1) 1998 it was clear that the legislature intended to introduce a procedure for both the RRT and the Migration Review Tribunal that was similar to that which applied to decisions by the Minister (or his or her delegate): see the Second Reading Speech, Commonwealth, Parliamentary Debates, House of Representatives, 2 December 1998, 1122 (Phillip Ruddock, Minister for Immigration and Multicultural Affairs) at 1123. Importantly, the Explanatory Memorandum at [117] states:"[The Amending Act] also inserts six new sections into the Migration Act. Of these sections 424, 424A, 424B and 424C provide a code of procedure which the [Refugee Review] Tribunal is to follow in conducting its review:...new section 424A ensures that an applicant is given particulars of any information that would be the reason or part of the reason for affirming the decision under review, and is asked to comment on that information. The information must be specifically about the applicant or another person and not just about a class of persons of which the applicant or the other person is a member. Paragraphs 424A(3)(b) and (c) provides respectively that information given by the applicant and non-disclosable information are not included in this section;" [Emphasis added]In SZANH v Minister for Immigration [2004] FCA 1280 Sackville discussed NAMW and the construction of s.424A(3) and said the following at [49]: In MIMIA v NAMW, Merkel and Hely JJ pointed out (at [126]) that one area of controversy has been whether or not s 424A(3)(a) of the Act contains two separate criteria, namely that the information is not specifically about the applicant or another person and is just about a class of persons of which the applicant and the other person is a member, so that each criterion must be satisfied. The alternative construction is that:‘the reference to the class of persons is not another criterion to be met, but, rather, underlines the specificity required in respect of the applicant or another person by precluding any argument that reference to a class can be taken to be a reference to all individuals falling within it’.Their Honours held that the alternative construction of s 424A(3)(a) of thehttp:// Act is correct (at [138]). I am unable to uphold the applicant’s argument in relation to this information.