SZEUI v Minister for Immigration - [2007] FMCA 2134

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEUI & ORS v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 2134

MIGRATION – Review of RRT decision – whether Tribunal complied with s.425 Migration Act 1958 upon matter being remitted – where Tribunal wrote s.424A letter to applicant – whether letter raised legitimate expectation that other information be provided to applicant.

Migration Act 1958 (Cth), ss. 422B, 424A, 425

SZHLM v Ministerfor Immigration [2007] FCA 1100
Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1
Minister for Immigration v Kurtovic (1990) 21 FCR 193
NBKT v Minister for Immigration [2006] FCAFC 195

First Applicant:

SZEUI

Second Applicant:

SZEUJ

Third Applicant:

SZGAR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 3010 of 2006

Judgment of:

Raphael FM

Hearing date:

19 December 2007

Date of last submission:

19 December 2007

Delivered at:

Sydney

Delivered on:

19 December 2007

REPRESENTATION

Counsel for the Applicant:

Mr T Ower

Counsel for the Respondent:

Mr J Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
First and Second Applicants to pay the First Respondent’s costs assessed in the sum of $4,800.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3010 of 2006

SZEUI

First Applicant

SZEUJ

Second Applicant

SZGAR

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The application before me today seeks review of the third decision of the Refugee Review Tribunal in respect of the applicant family. The grounds of the application found in a further amended application filed on 19 December 2007 are narrow but interesting, and I am grateful to both counsel for their assistance.
The substantive applicant, who is the husband and the father of the other two applicants, did not attend a hearing before the first Tribunal. When that decision was remitted he did attend a hearing before the second Tribunal. When that decision was remitted the third Tribunal had before it the second decision which included a record of the hearing. The applicant was invited to a further hearing by the third Tribunal. He sought to put off that hearing due to an accident to his wife. The Tribunal considered the request and granted a short adjournment but the applicant did not attend on the revised date, which was 21 August 2006.
On that day the Tribunal wrote a letter to the applicant pursuant to the provisions of s.424A of the Migration Act 1958 (“the Act”). The letter [CB88]-[89] advised the applicant that the Tribunal had information that would, subject to any comments he might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa.
It then listed two items of information. The first piece of information related to evidence given to the Department in the primary application form and the apparently inconsistent evidence given to the second Tribunal concerning an attack that the applicant alleged had occurred. It also dealt with a medical certificate provided by the applicant which the Tribunal said was inconsistent with the claim that a shooting had occurred. The second piece of information related to medical certificates provided by the applicant in respect of which the concern alleged was that they had not been provided to the first Tribunal.
The respondent took advantage of the invitation and on the last day available sent a letter [CB91] to the Tribunal. On 8 September 2006, four days after receipt of the letter, the Tribunal affirmed the decision not to grant a protection visa. In the findings and reasons at [CB108] the Tribunal said:
“The present Tribunal gives weight to the evidence the applicant husband gave the RRT on 3 December 2004 about having maintained his job and about having resided at the same address throughout the latter part of 2002 and up to September 2003 when he came to Australia. The second Tribunal put it to him that this was evidence of a stable existence in Pakistan throughout the period of what he claimed was his formal association with Haqiqi and that such a stable existence was at odds with his claims about harm and harassment he was facing at the time. The present Tribunal concludes on the evidence before it that whatever the Applicant husband's political sympathies he was not facing significant difficulty prior to coming to Australia and the Tribunal is satisfied that he does not face a real chance of Convention-related persecution in the event of return to Pakistan.”
The applicant argues that by utilising this information in coming to its decision the Tribunal breached both ss.424A and 425 of the Act. He argues that these are jurisdictional errors that would entitle the court to remit the matter to the Tribunal to be heard and determined according to law.
Section 425 of the Migration Act is in the following form:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
Mr Ower, who appears for the applicant, relies on the decision of Cowdroy J in SZHLM v Ministerfor Immigration [2007] FCA 1100 where his Honour held that in a remitted matter an applicant should have an opportunity to attend at a hearing. SZHLM was a case in which no invitation to attend a hearing had been made. At [32] his Honour stated:
“By sending the first and second s.424A(1) letters it was clear that the Tribunal required additional information to enable it to determine the application before it. If after the receipt of such further information the Tribunal was still unable to make a decision favourable to the appellant it had an obligation pursuant to s.425 of the Act to invite the appellant to appear before it. The fact that a previous hearing was held did not discharge this obligation in view of the fact that the Tribunal had requested further information. The Tribunal made its decision in the absence of making further inquiry of Mr Slater as it was invited to do, and without inviting the appellant to appear at a hearing.”
His Honour concluded that this failure to invite constituted a failure to comply with its statutory obligations by the Tribunal.
Mr Smith, who appears for the Minister, argues that SZHLM can be distinguished from the current case, firstly because the applicant was given an opportunity to attend and chose not to do so. But he also argues that in fact the applicant did attend a hearing, did give evidence, and did present arguments, and did so upon the very matters that are in issue today at the second Tribunal. In that way the obligations under s.425 were twice complied with. I think there is force in both of these arguments. The obligations under s.425 have been the subject of considerable discussion in the courts and any further extension of the type sought by this applicant would seem to me to be stretching the interpretation too far.
The applicant's case under s.424A(1) is that the information that I have extracted from the Tribunal's decision was not included in the letter that the Tribunal sent to the applicant. It is clear that this information was "information" that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The applicant argues that the Tribunal, having written a letter under s.424A(1), should have included this information, because having decided to proceed in the way in which it did, it was obliged to include all information that might influence its decision. Mr Ower put it that the letter raised legitimate expectations in the applicant that anything of concern to the Tribunal would have been raised in the letter.
I have a number of difficulties with the applicant's submissions. Firstly there must be some doubt now as to the extent of any legitimate expectation doctrine following the views expressed by the High Court in Re Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 and the views of Gummow J concerning estoppel in administrative law found in Minister for Immigration v Kurtovic (1990) 21 FCR 193. There is also s.422B of the Act to be taken into account which makes s.424A part of a code and an exhaustive statement of the requirements of the natural justice hearing rule. But the real difficulty with the applicant's case is that this information is information that would normally fall within an exception to s.424A, being information that the applicant gave for the purposes of the application for review (s.424A(3)(b)) and being such information it was not required to be included in any s.424A letter.
Now, it is certainly arguable that all the information contained in that s.424A letter was information within the exception, but the fact that the Tribunal acted in a way that was not necessary does not impose additional obligations upon it. As Mr Smith submitted, the Tribunal cannot alter its statutory obligations by its own actions. Any decision concerning a requirement under s.424A is a decision to be made by the court, and the question whether information is information that is required to be the subject of a letter under that section is a jurisdictional fact that the Court must decide. The court frequently decides that information should have been given by way of letter, and equally that other information should not. The Tribunal's thoughts about these matters are really irrelevant and I cannot see how the court can impose an obligation upon the Tribunal to include in a s.424A letter information that is otherwise excepted just because the Tribunal itself chooses to include such information in relation to different facts.
It follows from the above that I am unable to sustain the applicant's arguments that this Tribunal decision should be subject to review. There was, lightly put, a suggestion that the information did not fall within the exception because it was not evidence-in-chief given to the Tribunal, but no evidence of what was given to the second Tribunal was produced, and the best evidence is that which is contained in the extract. This certainly seems to indicate that the information was provided by the applicant. But perhaps that is of no matter following the decision of the Full Bench in NBKT v Minister for Immigration [2006] FCAFC 195 at [59]:
“At the same time, the weight of authority indicates that artificial distinctions should not be drawn between information that is provided by an applicant in the course of his evidence in chief rather than in answer to questions posed by the Tribunal.”
I dismiss the application.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 21 December 2007