SZBVM v Minister for Immigration
[2006] FMCA 1392
•22 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBVM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1392 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizens of Russian Federation claiming fear of persecution – credibility issue – visa stamps in passport – where Tribunal found that second applicant did not support evidence of first applicant – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424A – whether Tribunal’s discretion under Migration Act 1958 s.427(1)(d) miscarried. |
| Migration Act 1958 (Cth), ss.91X, 424A, 427, 474 |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 referred to. SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 referred to. SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 referred to. SZDOG v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 213 ALR 439 referred to. Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176 applied. SZHTL v Minister for Immigration and Multicultural Affairs [2006] FCA 1052 applied. MZWMQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1263 followed. |
First Applicant: Second Applicant: | SZBVM SZBVN |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 964 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 August 2006 |
| Date of Last Submission: | 17 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 22 September 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jenkins |
| Counsel for the Respondent: | Mr Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 964 of 2006
| SZBVM |
First Applicant
| SZBVN |
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
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 signed on 24th February and handed down on 7th March 2006. The Tribunal affirmed a decision of the delegate of the Minister not to grant protection visas to the Applicants.
The Applicants seek a writ of certiorari to quash the Tribunal decision, a writ of prohibition directed to the First Respondent Minister and a writ of mandamus directing the Tribunal to reconsider the application for protection visas according to law.
Background
The Applicants are citizens of the Russian Federation. They are a
de facto wife and husband.
The Applicants arrived in Australia on 9th June 2001 and applied for Protection (class XA) visas on 29th of that month. On 25th June 2002 a delegate of the Minister refused their application. The Applicants applied for a review of that decision.
Application for review by the Refugee Review Tribunal
The Applicants applied for review by the Refugee Review Tribunal on 19th July 2002. They accompanied their application with a typed statement, setting out why they disagreed with the delegate’s decision. A Tribunal decision of 30th September 2003 affirmed the delegate’s decision but on 10th November 2005 this Court made orders by consent quashing that decision.
The Tribunal invited the Applicants to attend another hearing and give oral evidence. The Tribunal wrote to the Applicants on 13th December 2005, asking whether their application for a protection visa and other statements made still represented their claims. The Tribunal also wrote another letter that same day about false visas in the Applicants’ passports. The letter pointed out that the information was relevant to their case and may be adverse to it. The Applicants’ migration agent wrote back, confirming that the earlier information was correct and denying that the Applicants were aware of the false or fraudulently obtained visas.
The First Applicant gave oral evidence to the Tribunal on 5th January 2006. The Second Applicant, the husband, relies on his membership of the First Applicant’s family.
The Tribunal wrote again to the Applicants on 6th January 2006, asking for further information, including country information confirming that the authorities, when seeking to harass, arrest or check people who appear to be of Chechen or Ingush heritage do so on the basis of their features or characteristics rather than solely on the basis of their darker skin.
The Tribunal also wrote to the Applicants putting information, including country information to them and asking for comments by
20th January 2006. The Applicants’ migration agent wrote and replied on 17th January 2006, sending a considerable amount of information.
The Tribunal decision
The Tribunal handed down its decision on 7th March 2006.
The decision is set out in full in the Court Book.
The Tribunal’s summary of the Applicants’ claims and evidence appears on pages 195 to 213 of the Court Book. This information included the First Applicant’s claim that she had been subjected to violence, discrimination and persecution at the hands of the “employees of militia”. The First Applicant said that she would be persecuted if she were to return to Russia because she looks like a Chechen and has Chechen roots. She described having been detained about 8 times between 1994 and 2002. On 3rd March 2001 she had been beaten.
The Tribunal referred in its decision to country information from the United States State Department and the European Commission against Racism and Intolerance.
The Tribunal’s Findings and Reasons
The Tribunal’s findings and reasons are set out on pages 214 to 219 of the Court Book.
The Tribunal accepted that the First Applicant is a national of Russia. However, the Tribunal was unable to accept any of her claims.
The Tribunal noted that the Second Applicant, the First Applicant’s
de facto husband, had not attended the hearing. The First Applicant said that he had had to go to work. The First Applicant had been asked about the visa stamps in her passport for travel to the Maldives and Panama, which she said had been placed their without her consent.
The Tribunal had this to say about the Second Applicant’s involvement in the proceedings:
The Tribunal noted to the applicant that her husband[1] had not provided any statement or support for the particular claims that the visa stamps for travel to the Maldives and Panama had been placed in the applicant’s passport without her consent. At the end of the hearing, the Tribunal stated that it would send a letter to the applicant’s authorized recipient as to what it required. As a result, in the s.424 letter dated 6th January 2006, the Tribunal requested that in relation to the placement of visas in the applicant’s passport by the travel agent, further information should ‘include a Statutory Declaration from your partner that this is what happened with his passport and in your passport’. No evidence has been provided to the Tribunal by the applicant’s husband in response. Further, in the s.424 letter sent to the applicant’s agent on 6 January 2006 the following was written:
You should inform (the second applicant)[2] and any reply will be regarded as a joint response unless we are advised otherwise.
In the absence of any response to the Tribunal’s requests for the evidence from the applicant’s husband, and in the absence of any explanation as to why there has been no corroboration by the applicant’s husband, such as difficulties in obtaining a statutory declaration, the Tribunal finds that the applicant’s husband does not support the applicant’s claims. This finding also informs the Tribunal’s following findings.[3]
[1] i.e. the Second Applicant
[2] Whilst the Tribunal Decision quotes the man’s name, the name has not been published in this decision to meet the requirement of s.91X of the Migration Act.
[3] Court Book page 216
The Tribunal placed great weight on this evidence, or lack of it.
The Tribunal regarded the visas, be they authentic or false, as a fundamental issue in the matter. The Tribunal was not persuaded that further investigation was required, having regard to the prima facie acceptance of passports and the assessment made by the Department of Immigration in Russia when considering and assessing the Applicants’ application for a visa to travel to Australia.
Panama and the Maldives in early 2001. The Tribunal found the First Applicant not to be a credible witness. The Tribunal found that the First Applicant had travelled to the Maldives, Panama, Spain, Italy, France, Finland and Sweden during the period of time she claims that she was persecuted. She did not seek protection and returned to Russia.
The Tribunal did not accept any of the First Applicant’s claims and was not, in fact, satisfied that the Applicant is of Chechen/Ingush background. The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason.
The Tribunal also found that the Second Applicant could not satisfy the second criterion in s.36(2) (b) of the Migration Act 1958 and could not be granted a protection visa.
Application for judicial review
The Applicants commenced proceedings by filing an application on 31st March 2006. By means of a further amended application, which was filed in Court by leave, the Applicant claims that the Tribunal’s decision was affected by jurisdictional error, in that:
a)the Tribunal failed to comply with the requirements of s.424A of the Migration Act; and
b)The Tribunal’s exercise of discretion under s.427(1) (d) of the Act not to initiate an investigation into the authenticity of the visas in the Applicant wife’s passport miscarried.
The Applicants’ submissions
In respect of the claim that the Tribunal failed to comply with the provisions of s.424A of the Act, the Applicant’s counsel, Mr Jenkins, submitted that part of the reason for the Tribunal’s affirming the delegate’s decision was the failure of the Second Applicant to make a statement or give evidence to the Tribunal. He submitted that this was information about the Second Applicant and that the Tribunal failed to advise the Applicants in writing of this information or its significance.
The requirements of s.424A are mandatory and failure to follow them will constitute a jurisdictional error (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [200] HCA 24; (2005) 215 ALR 162).
The Second Applicant did not make any comment about the authenticity or otherwise of the visa stamps in the First Applicant’s passport. The Tribunal relied on the absence of corroborative evidence from the Second Applicant as the reason, or part of the reason, for affirming the delegate’s decision.
In SZECF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1200 Allsop J noted that for the purposes of s.424A information can be defined by the form and content in which it is provided, namely that “so much and no more” was said on an earlier occasion (at [30]). The Applicant submits that the protection visa of the Second Applicant, without corroborating information about the stamps in the First Applicant’s passport, was information for the purposes of s.424A.
The First Applicant also submits that, in the alternative, the Tribunal instituted a line of inquiry that resulted in a finding of a lack of corroborative evidence. The Tribunal, it is submitted, made comments at the Tribunal hearing about the absence of the Second Applicant and then sent a letter requesting a statutory declaration from the Second Applicant commenting about the visa stamps in the First Applicant’s passport.
The First Applicant therefore submits that the response, if any, from the Second Applicant, constituted information for the purposes of s.424A. The First Applicant refers to SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2, where Allsop J, referring to photographs on the Internet, had said at [261]:
Although reflecting only a lack of corroborative evidence, that lack of evidence was a part of the reason for the decision. This would be another ground upholding the appeal.
The First Applicant also submits that the Tribunal failed to exercise its discretion and misconceived the apparent utility of having the Document Examination Unit investigate the authenticity of the visa stamps in her passport. It is submitted that the Tribunal’s stated reasons for not doing so, that even if it were determined conclusively that the visas were genuine, it would still not resolve whether the stamps were actually used for travel or placed in the passport at a later stage for the purpose of deception.[4]
[4] See Court Book page 217
The First Applicant submits that the Tribunal’s reasoning is illogical and the Tribunal relied on an irrelevant consideration whilst failing to take a relevant consideration into account.
Counsel for the Applicants submitted that, when exercising procedural discretions, such as under s.427, the Tribunal must balance considerations of procedural fairness with the efficiency of general Tribunal procedures (see SZDOG v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 213 ALR 439 at [33]).
The submission goes that the basis for the Tribunal exercising its discretion is an irrelevant consideration as any subsequent claim made by an applicant concerning the outcome of the examination would not affect the findings of the Document Examination Unit. Any subsequent claims by the Applicant would merely go to the Applicant’s credibility.
The First Respondent’s submissions
Counsel for the First Respondent, Mr Reilly, submitted that no “information” within s.424A (1) was identified that was not put to the Applicants in the Tribunal’s letters of 13th December 2005 and
6th January 2006. The Tribunal’s letter dated 6th January 2006 requesting a statutory declaration was written pursuant to s.424, not s.424A. The fact that the Tribunal relied in part on the failure of the Second Applicant to provide the statutory declaration does not engage s.424A(1), as it does not involve the Tribunal relying on any information concerning the First Applicant, other than information falling within s.424A(3)(b). The use made by the Tribunal of the failure to provide a statutory declaration is a thought process, not information (see SZEEU (supra) at [206]).
Counsel for the First Respondent referred the court to Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176 at [23] and SZHTL v Minister for Immigration and Multicultural Affairs [2006] FCA 1052 at [20] – [21], in support of the proposition that s.424A (3)(b), in its reference to an application, includes joint applications which are combined according to the Regulations.
Conclusions
The letter from the Tribunal to the Applicants of 6th January 2004 requesting a statutory declaration was a letter under s.424 sent to the Applicants’ authorised recipient. It was intended to be read by both Applicants.
The failure by the Second Applicant to provide a statutory declaration was not information for the purpose of s.424A (1) of the Act.
The reference by counsel for the Applicants to SZEEU at [261] has been taken out of context, in my view, and does not constitute authority for the proposition made.
Contrary to the submissions of counsel for the Applicants, the failure by the Second Applicant to file a statutory declaration is not information for the purposes of s.424A of the Act:
Information does not encompass the Tribunal’s subjective appraisals, thought processes or determinations … (per Allsop J in SZEEU at [206]).
The word ‘information’ has been said not to encompass or extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc …(at [207]).
I am satisfied that the Tribunal’s finding about the lack of a statutory declaration by the Second Applicant on an important point is a thought process and not information for the purposes of s.424A.
In any event, the application by the two Applicants is to be construed as the one application, as they are joint applicants. In Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176, Young J held at [23]:
In my opinion, it is consistent with the object and statutory purposes of s.424A(3)(b) to construe its reference to an application as including joint applications which are combined pursuant to the Regulations.
Young J followed and applied the decision of Marshall J in MZWMQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1263 (see also SZHTL v Minister for Immigration and Multicultural Affairs [2006] FCA 1052 at [20] – [21]).
In the circumstances, there is no breach of s.424A of the Migration Act.
I also find that there was no breach of s.427 of the Migration Act.
The section says that the Tribunal may require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review (s.427(1)(d)). There is no obligation on the Tribunal to do so.
The Tribunal gave reasons at page 217 of the Court Book as to why it did not intend to make inquiries with the Document Examination Unit. The reason is that the inquiries, even if they did show that the visa stamps were genuine, would not answer the questions in issue. This, to my mind, is not an illogical reason, nor is it a case of taking an irrelevant consideration into account. I am unable to see how the basis for the Tribunal exercising its discretion can be described as “an irrelevant consideration” (Applicants’ Outline of Submissions paragraph 31). It is the reason why the action would be futile.
This ground has not been made out.
I am satisfied that there is no jurisdictional error. The Tribunal’s decision is a privative clause decision as defined by s.474(2) and consequently is not subject to prohibition, mandamus or certiorari (s.474 (1)).
The application will be dismissed. I will take submissions on costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 18 September 2006
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