SZEVJ v Minister for Immigration & Multicultural Affairs

[2006] FCA 1588

FEDERAL COURT OF AUSTRALIA

SZEVJ v Minister for Immigration & Multicultural Affairs

[2006] FCA 1588

SZEVJ v MINISTER FOR IMMIGRATION & MULTICULTURAL
AFFAIRS

NSD 1499 of 2006

LINDGREN J
17 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1499 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEVJ Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	LINDGREN J
DATE OF ORDER:	17 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal (‘the Tribunal’) be joined as second respondent to this appeal.

2.        The appeal be allowed.

3.The orders made by the Federal Magistrates Court of Australia on 21 July 2006 in proceeding SYG 2085 of 2004 be set aside, and in lieu thereof, it be ordered that:

(a)       the Tribunal be joined as second respondent to the application;

(b)there be an order in the nature of certiorari to quash the decision of the Tribunal dated 26 May 2004 and handed down on 16 June 2004 in Tribunal proceeding N04/48428 ;

(c)there be an order in the nature of mandamus requiring the Tribunal to review according to law the decision of the delegate of the first respondent made on 23 January 2004;

(d)       there be no order as to costs.

4.        There be no order as to the cost of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1499 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEVJ Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	LINDGREN J
DATE:	17 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this appeal from the Federal Magistrates Court of Australia the solicitor for the respondent Minister contacted my chambers yesterday to advise that the appeal, which was fixed for hearing before me today, had been resolved.  The solicitor forwarded a form of consent orders bearing a signature of the appellant and the signature of a solicitor acting for the respondent. 

2. The consent orders provide for the Refugee Review Tribunal (‘the Tribunal’) to be joined as second respondent, for the appeal to be allowed, for the orders made by the Federal Magistrates Court to be set aside, and, in substance, for the matter to be remitted to the Tribunal  to carry out a review according to law.  I asked my associate to inquire of the solicitor as to the ground on which it was said that the decision of the Tribunal was affected by jurisdictional error.  She did so, and the solicitor, with the appellant’s agreement, conveyed information to her which is reflected below.

3. I do not take the view that, before making the orders sought, I must be satisfied, just as I would need to be following a contested hearing, that there was jurisdictional error.  There is before the Court now that which would not be before the Court on a contested hearing, namely, a concession by the first respondent that the Tribunal committed a jurisdictional error.  This concession does not count for nothing.

4. On the other hand, the orders sought should not be made merely for the asking, and I must be satisfied that at least there is ground for thinking that there was a jurisdictional error.

5. The appellant applied for a protection visa on 15 January 2004.  Question 12 in the form of visa application asked him, ‘your religion (if any)’.  His response was ‘N/A’, meaning ‘Not Applicable’.  There may be a question as to what ‘Not Applicable’ meant as an answer to Question 12.

6. On 23 January 2004, a delegate of the Minister refused to grant the protection visa.  The appellant applied to the Tribunal for review of that decision.  In his application to the Tribunal, in answer to the invitation, ‘Please tell us why you consider yourself to be a refugee’, the appellant responded ‘please refer to my statement at DIMIA’.  The expression ‘my statement at DIMIA’ was, however, ambiguous, because, accompanying the appellant’s application for the protection visa, was a one page ‘statement’ dated 15 January 2004 setting out the reasons why the appellant said he feared persecution if he were to return to China.

7. When the appellant wrote ‘please refer to my statement at DIMIA’, he may well have been referring to this one page statement, and apparently the Minister now takes the view that he was referring to it.

8. By a decision made on 26 May 2004 and handed down on 16 June 2004, the Tribunal affirmed the delegate’s decision.  In its reasons, the Tribunal noted claims made by the appellant that if he were to return to China he would, relevantly, be persecuted for reasons of religion.

9. The Tribunal considered that the appellant had fabricated his claim in regard to religion.  In particular, the Tribunal referred to the appellant’s ‘N/A’ response to Question 12.  The Tribunal also noted that the appellant’s knowledge of Christianity was ‘scant’. 

10. The appellant sought review of the Tribunal’s decision in the Federal Magistrates Court, which, on 21 July 2006, dismissed his application.  In his reasons, the Federal Magistrate referred at some length to the decision of a Full Court of this Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 (‘SZEEU’).  

11. SZEEU was concerned with s 424A of the Migration Act 1958 (Cth). Generally speaking, it can be said, that s 424A requires the Tribunal to give to an applicant particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review, but that this requirement does not apply to information that the applicant gave for the purpose of ‘the application’. The expression ‘the application’ has been understood to refer to the application to the Tribunal.

12. The Federal Magistrate indicated that if the appellant had not ‘republished’ to the Tribunal ‘information in his protection visa application’, he would have found jurisdictional error.

13. The Minister now concedes that the answer ‘N/A’ to Question 12, and the giving of that answer to that question, constituted information within s 424A, that was not given by the appellant to the Tribunal.  The jurisdictional error that the parties have identified is a non-compliance by the Tribunal with s 424A(1) by reason of failure to put to the appellant his answer to Question 12, and the parties have referred to SZEEU.

14. There is reason to think that the position taken by the parties is correct, that is to say, that the appellant did not give that information to the Tribunal, because when he advised the Tribunal, ‘please see my statement to DIMIA’, he was not referring to the form of application for the protection visa, but to his accompanying one page ‘statement’ setting out the reasons why he considered himself to be a refugee.

15. For the above reasons, I make the orders sought by consent.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:
Dated:        22 November 2006

The appellant was unrepresented.
Solicitor for the respondent:	Ms A Radich of Blake Dawson Waldron
Date of Hearing:	17 November 2006
Date of Judgment:	17 November 2006