SZEYJ v Minister for Immigration

Case •

[2005] FMCA 1718

•

22 November 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEYJ v MINISTER FOR IMMIGRATION [2005] FMCA 1718
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91V, 91X, 422B, 424, 424A, 425, 429A, 474, 483A

Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SRFB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 268
SRFB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 252
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293
NAWR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 25
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119
Yo Han Chung v University of Sydney & Ors [2002] FCA 186
NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235
Appellant S106/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 198 ALR 59
VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286
WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 79

Applicant: SZEYJ
Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
File No: SYG2252 of 2004
Delivered on: 22 November 2005
Delivered at: Sydney
Hearing date: 13 October 2005
Judgment of: Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of an interpreter.

Counsel for the Respondent: Mr G T Johnson
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. The application is dismissed.

  2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2252 of 2004

SZEYJ

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

  1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 19 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on


    18 June 2004 and handed down on 8 July 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 29 April 2004 to refuse to grant the applicant a protection (Class XA) visa.  The applicant seeks unstated relief against the decision of the Tribunal.

  2. The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZEYJ”.

Background

  1. The applicant, who claims to be a citizen of India, arrived in Australia on 26 December 2003. On 6 February 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-34) (“CB”). On 29 April 2004 the delegate refused to grant a protection visa (CB pp.37-45) and on 13 May 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.46-49).

  2. According to his protection visa application, the applicant was born in 1975 in the state of Kerala, India.  He is of Christian religious belief but did not nominate any ethnicity in his protection visa application.  He speaks, reads and writes Malayalam and English and speaks Kannada.  The applicant claimed he was unmarried and described his occupation as “nurse”.  He stated he had completed 18 years of education, including tertiary nursing qualifications and was employed in that occupation from December 1998 until August 2003 at the same hospital in Kerala.  The applicant’s parents reside in India (CB p.71).

Applicant’s claim

  1. The applicant claims to fear persecution because of his political opinion and his religion.  He claimed he joined the Students Federation of India (SFI) while undertaking his secondary study from 1990 to 1995 and that the SFI is the student wing of the Communist Party of India (Marxist) (CPI(M)).  The applicant claimed that two years after joining the SFI he was selected as Committee Convenor and in 1994, due to his hard work, the SFI won election at his college, defeating their opposition party, the Kerala Student Union (KSU).  He claimed that he and other SFI members were assaulted by KSU members, resulting in hospitalisation for the applicant.  The applicant stated the incident was reported to the police but “they did not want to interfere in political conflicts” (CB p.72).

  2. The applicant claimed that in 1995 he won the college election and was selected as the chairman of the college Union on behalf of the SFI.  He claimed that KSU members came to his home and assaulted him and his parents, and that he was again admitted to hospital for treatment, but that “as usual, the police did not take any action”.  The applicant claimed he could not finish his study and, with money from SFI members and friends, he went to Karnataka state and joined the nursing college.  He claimed that in Karnataka he joined the CPI(M) (CB p.72).

  3. Following a dispute over payment of fees, the applicant claimed he was excluded from his study and consequently returned to Kerala without passing his exams.  On his return to Kerala, the applicant claimed he continued political activities which resulted in assaults being made on him and his family.  The applicant also claimed that he started to preach Christianity and the Indian National Congress accused him of trying to convert Hindus to Christianity.  Again, he claimed people broke into his house, stabbed him and tried to burn his house down.  He claimed that in 2003 he went to Malaysia and Singapore seeking refugee protection but was forced to return to India.  With the help of friends, the applicant claimed he lived “underground” before travelling to Australia (CB pp.72-73).

The Tribunal’s findings and reasons

  1. A convenient summary of the Tribunal’s findings and reasons was contained in the respondent’s written submissions prepared by Mr G T Johnson and I adopt paragraphs 3-10 of those submissions for the purpose of this judgment:

    [3]The applicant claimed to fear persecution in India because of his political opinion and his religion.  His claims were further detailed by the Tribunal at CB72-73.

    [4]By letter dated 24 May 2004, the Tribunal, at the direction of the member who made the decision now under review (CB 73.6), sent to the applicant an invitation to provide further information under section 424 of the Act. The invitation was a lengthy one. The letter in which it was contained occurs at CB54-57 and the information that the applicant was invited to provide is also recited by the Tribunal in its reasons at CB73-76.

    [5]That letter containing the section 424 invitation concluded with the warning: “If you do not provide the additional information by Thursday 17 June 2004, the Tribunal will make a decision on the review of your case without further notice to you and will not schedule a hearing for you or, if a hearing has been scheduled, will cancel that hearing without further notice to you”.  (Emphasis added).

    [6]The applicant did not respond to the notice.  He neither supplied, nor purported to supply, what was sought.  Nor did he make any application to the Tribunal to allow him more time to provide an answer.

    [7]Upon the same day that the section 424 request was sent to the applicant, the Tribunal also sent a letter inviting the applicant to appear at a hearing on Tuesday 22 June 2004 at 10.30am (CB 58-59). The applicant was there asked to return the enclosed request for hearing form by 10 June 2004 and the completed response to the hearing invitation was in fact received by the Tribunal on 3 June 2004 (CB 60). This letter also warned the applicant that the Tribunal “has considered the material before it in relation to your application but is unable to make a decision in your favour on this material alone” (CB 58.3).

    [8]The applicant did not communicate with the Tribunal at all in relation to the section 424 invitation and let the deadline of 17 June 2004 slip, notwithstanding the abovementioned warning that any scheduled hearing date would be cancelled if the applicant did not provide the requested information by 17 June 2004.

    [9]On 18 June 2004, there having been no response to the section 424 request, the Tribunal wrote to the applicant advising him that the hearing scheduled for 22 June 2004 had been cancelled and that a decision had been made on his application (CB 62). On 21 June 2004 the Tribunal again wrote to the applicant indicating that it had made a decision and this letter advised that the decision would be handed down on 8 July 2004 (CB 63). The handing down proceeded as there indicated (CB 65).

    [10]The Tribunal found that, in the absence of a response from the applicant, there was insufficient evidence or other material before it to satisfy it that the applicant’s claims are true (CB 77.8). The Tribunal further found that the applicant had fabricated his claims in order to extend his stay in Australia, because it found that he had failed to provide documentary or other support for his claims, that his claims were vague and lacking in detail and that his behaviour is inconsistent with a genuine fear of persecution (CB 77.9-78.1). The Tribunal then further detailed its reasons under the headings “Failure to provide support for claims” (CB 78), “Vague claims” (CB 78) and “Behaviour inconsistent with genuine fear” (CB 78.8-79.9). The failure to respond to the section 424 invitation was relied upon under these headings, the Tribunal noting that some of the details requested were, by their nature, matters within the applicant’s own knowledge and experience.

Application for review of the Tribunal’s decision

  1. On 19 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 12 January 2005 the applicant filed an amended application containing the following grounds:

    1.That the Tribunal erred in law by failing to hear the Applicant on 22.06.04, that date being a hearing to which the Applicant had been invited prior to the s.424 notice and to which the Applicant had advised his proposed attendance as the Migration Act 1958 requires.

    2.That the Tribunal erred in law by holding that the hearing of the application before it listed for 22.06.04 was cancelled by reason of the Applicant’s failure to supply further information pursuant to the s.424 notice. The only consequence of a failure to provide information pursuant to a s.424 notice is that the Tribunal is not under a duty to seek requested information elsewhere and is not under a duty to invite an Applicant to a hearing of the application. However, this had already been done. There is no power arising from such failure to permit the tribunal to cancel a hearing already set to which an invitation has been extended and accepted.

    3.That, should this Honourable Court so find, the Tribunal failed to direct itself that it had a discretion whether to hear the Applicant on 22.06.04 following failure to provide information pursuant to the s.424 notice and it thereby failed to consider and exercise a discretion which the Act confers upon the Tribunal.

    4.That, by reason of the matters aforesaid, the tribunal acted in breach of the rules of natural justice and the procedural requirements of the Migration Act 1958 both of which impose duties upon the Tribunal to hear and determine an application according to law.

    5.That the notice of handing down of the Tribunal’s decision (Court Book page 63) inadvertently led the Applicant into an erroneous belief that a fresh hearing date of 08.07.04 had been set whereby there occurred a breach of the rules of natural justice and a breach of the procedural requirements of the Migration Act 1958.

    6.That the decision of the Tribunal to proceed without hearing was an unreasonable determination in the Wednesbury sense given that the Tribunal had already determined that a hearing was appropriate in the circumstance before the Tribunal, had invited the Applicant to attend the hearing (see Court Book page 58) which invitation the Applicant had accepted (Court Book 60) and the information sought by the s.214 notice was clearly in relation to matters that could be addressed at the listed hearing.

    7.That the final determination of the Applicant’s claim upon the basis that it was not satisfied that the materials before it were insufficient was unreasonable in the Wednesbury sense.

    Particulars

    The enquiries made were voluminous and required much detail and required investigations to be conducted overseas in the Applicant’s homeland and the time allowed was only 23 days from the date of the notice.  Consequently, the Tribunal failed to apply and adhere to the principle, which it acknowledged, that where claims made are plausible and credible they should be given the benefit of the doubt unless there is good reason to not do so.  The Applicant’s claims were credible and plausible and there was ample evidence before the tribunal to show the existence of religious and political mistreatment in the Applicant’s homeland at relevant times.  The Tribunal incorrectly gave too much weight to the several factors outlined in paragraphs 34 and 35 of its reasons.

    8.That, it was not open to the Tribunal, on the materials before it, to find that the Applicant’s claims were a fabrication which in fact was the operative determination of the Tribunal.

    9.That the Tribunal’s finding that the Applicant’s claims were a fabrication was an unreasonable decision.

    10.That the Tribunal’s finding that the Applicant’s claims were a fabrication was contrary to s.91V of the Act in that the finding was not an inference that could be drawn reasonably.

The law

  1. The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith:  Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].

  2. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power:  Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Submissions

  1. The applicant appeared self represented with the aid of an interpreter.  The applicant attended a directions hearing on 20 October 2004 and consented to Short Minutes of Order at that time which included the filing and serving of written submissions fourteen days prior to the hearing.  This order was not complied with.  The applicant indicated that he would rely on his amended application and the affidavit filed on 12 January 2005.

  2. Mr G T Johnson of Counsel, appearing for the respondent, filed detailed written submissions prior to the hearing.

Reasons

  1. As the applicant relied upon his affidavit filed on 12 January 2005, Counsel for the respondent sought to cross examine the applicant on the contents of that document.  During cross examination, the applicant conceded that he had received the letter from the Tribunal dated 24 May 2004 (CB pp.54-57) in which the Tribunal put to the applicant a series of questions that were required to be answered by the applicant in respect of his visa application.  The applicant also indicated that he understood the context of the bold print contained in the final paragraphs of the Tribunal’s letter (CB p.57).  The applicant acknowledged that he was obliged to seek assistance in having the letter translated to him where he did not understand aspects of the letter’s contents.  He confirmed that he did read and understand written English.

  2. The applicant was then cross examined on the requirement to respond to the letter by Thursday, 17 June 2004.  The applicant also conceded that he was aware that if he did nothing in response to the letter by the date specified in the final paragraph, that the Tribunal may proceed to make a decision in his case without further notice to him.  He also understood that the Tribunal may not schedule a hearing and in the circumstances where a hearing had been scheduled, the Tribunal may proceed to cancel that hearing without further notice to the applicant.  The applicant confirmed that he understood the consequences of failing to respond to the Tribunal’s letter and the action that the Tribunal could take in the absence of a reply from him.  He indicated that he did nothing in response to the Tribunal’s letter by the specified date and he did not seek any form of extension to the time requirement specified by the Tribunal in its letter.

  3. The applicant’s amended application raised ten grounds of review. The first six of those grounds related to the entitlement of the Tribunal to proceed to determine the matter as it did following the failure by the applicant to respond within the time allowed by the notice under s.424 of the Act. Due to the applicant’s failure to provide the information sought by 17 June 2004 in the s.424 request set out in the Tribunal’s letter of 24 May 2004, the applicant invoked s.424C(1) so that it applied to him on and from 18 June 2004. Once he became a person to whom s.424C(1) applied, s.425(2)(c) operated with the result that s.425(1) no longer applied to the applicant. The consequence being that the applicant was no longer entitled to a hearing before the Tribunal by force of the combination of s.424C(1) and s.425(2)(c).

  4. Counsel for the respondent referred the Court to the decision of his Honour in Hayne J in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (“SAAP”) at [189] where his Honour refers to the effect of a failure to provide within time information requested under s.424. His Honour acknowledged that s.425(2)(c) is engaged if s.424C(1) applies to the applicant (as well as those cases where s.424C(2) applies to the applicant) and said:

    “If a person is invited under s 424 to give additional information to the Tribunal, but does not do so before the time for giving it has passed, s 424C(1) permits the Tribunal to make a decision, without taking further action to obtain the additional information. Section 424C may therefore be engaged where, pursuant to s 424, information is sought from the applicant or from another. Section 425(2)(c) deals with the case where information is sought from the applicant, but not provided in time. In such a case, the applicant is not entitled to appear before the Tribunal.”

  5. Section 425(1) does not continue to apply if and when s.424C(1) or (2) comes to apply to an applicant. That is the effect of s.425(2)(c) and is the situation which applied in this matter. The sequential approach assumed by the applicant in Grounds 1-6 was rejected in SAAP.  Counsel for the respondent submitted that although SAAP was directly concerned with s.424A and not s.424, the majority non-sequential approach to the interpretation of Part 7 Division 4 (which includes ss.422B through to 429A) must apply in relation to s.424 as it does in relation to s.424A.

  1. Mr Johnson pointed out that in SAAP, there are indications that, although s.425 of the Act envisages s.424A usually being used before s.425 is engaged, this does not mean that a sequential approach is contemplated by Part 7 Division 4 and it does not mean that, once the s.425 procedure has been commenced, s.424A no longer has any role to play. There is no reason why s.424 would interact with s.425 any differently in this respect. The majority in SAAP favoured an ambulatory rather than a sequential approach to the construction of Part 7 Division 4: see per McHugh J at [52], [56] and especially [60]-[63], per Kirby J at [154] and [159]-[160] and per Hayne J at [184]-[202].

  2. In the decision of SRFB v Minister for Immigration & Multicultural & Indigenous Affairs per Mansfield J at [32] his Honour supports the non-sequential approach to these provisions that is now to be applied:

    “Section 424C of the Act entitles the Tribunal to proceed to review without taking any further action if the invitation to comment upon potentially adverse material under s 424A is not taken up. Section 425 obliges the Tribunal to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 424C(2) excuses the Tribunal from that obligation if it has already invited comment upon material in accordance with s 424A(1) and there has been no response. Hence, it appears that the normal sequence is that the procedure contemplated by s 424A will be adopted before the hearing, if one takes place, in accordance with s 425 of the Act. But it does not follow that Div 4 of Pt 7 of the Act requires that sequence to be followed invariably. It does not say so, although it could readily have been so prescribed. To adopt such a rigid sequence would mean that the Tribunal, where it learnt of or realised the potential implications of certain information which attracted the application of s 424A only at or shortly before the hearing, would have to cancel or adjourn the hearing without then exploring the significance of that information. There may then be the need for a series of abbreviated hearings if further information comes to light. Such a consequence would not be consistent with the exhortatory terms of s 420 of the Act. Moreover, such a construction, if correct, would preclude the Tribunal from seeking additional information under s 424 because it too is in a sequence in Div 4 which precedes the hearing. It would interfere inappropriately with the Tribunal’s conduct of a review to impose such a rigid sequence of investigation upon it. If, as a result of a hearing or for some other reason, the Tribunal procures additional information under s 424, then depending upon its nature the obligation under s 424A may be enlivened. It does not necessarily lead to the obligation to conduct a further hearing, or to invite the applicant to further appear under s 425. If an invitation to comment upon information is given under s 424A, s 424B(1) makes it clear that the manner of response is to be in ‘the way the Tribunal considers appropriate in the circumstances’. It contemplates a response at interview or in writing: subs 424B(3) and (2) respectively. The expression of those alternatives indicates the legislative intention is not to re-enliven the obligation under s 425 if it has already been complied with, nor always to impose upon the Tribunal the obligation to have a further hearing when s 424A has been enlivened.”

  3. This approach was supported by the Full Court in SRFB v Minister for Immigration & Multicultural & Indigenous Affairs at 252 per Ryan, Jacobson and Lander JJ.

  4. Following an ambulatory and non-sequential approach to Part 7 Division 4, an invitation may be given by the Tribunal to an applicant, under s.424 or s.424A, after an invitation to attend a hearing is issued. So too, therefore, can the consequences, prescribed by the Act, of non-compliance with an invitation under s.424 or s.424A first arise at a later time than the issue of an invitation to attend a hearing. Section 425 is part of a scheme. The applicability of s.425(1) is not to be judged only as at the time that any invitation to attend a hearing is issued. The ambulatory character of s.425 is illustrated in another context by Minister for Immigration & Multicultural & Indigenous Affairs v SCAR at 288-289. Because of what was there seen in SCAR as the continuing operation of s.425(1), it cannot be said that there is no room for s.425(2)(c) to come into play after an invitation to appear before the Tribunal at a hearing has first issued. Once s.425(2)(c) does become operative, s.425(1) does not apply to the applicant and it follows that there is then no continuing obligation on the Tribunal under s.425(1). The effect of s.425(2) is that it “removes” the obligation to an applicant under s.425(1) when s.424C(1) applies to that applicant.

  5. The Full Federal Court in NAWR v Minister for Immigration & Multicultural & Indigenous Affairs per Beaumont, Lindgren and Tamberlin JJ confirmed this interpretation of these sections of the Act at [28]:

    “Section 425(1) of the Migration Act 1958 (‘the Act’) provides that the Tribunal must invite an applicant to appear before it and present arguments. However, s 425(2) removes that obligation in any case where s 424C(1) applies to an applicant, that is to say, where an applicant has been invited to give additional information and does not give it before the time for providing the information has passed.”

  6. Mr Johnson submitted that, accordingly, the Tribunal was entitled to cancel the hearing, as it advised the applicant (by letter dated 18 June 2004) it had done. By 18 June 2004, it was no longer under any obligation to provide the applicant with an opportunity to appear before it. As explained above, the Tribunal was expressly authorised to decide the matter as it did once the applicant’s failure to answer the s.424 invitation within the prescribed time triggered the operation of s.424C(1) and then more relevantly s.425(2)(c).

  7. In regard to the remaining issue in respect of Ground 2 regarding the cancellation of the hearing, there is no evidence that the Tribunal held that the failure to comply with the s.424 invitation itself had the effect of cancelling the hearing. The cancellation of the hearing was a separate step by the Tribunal.

  8. In respect of Ground 3, there is no evidence that the Tribunal failed to appreciate that it had a choice or discretion whether to still hold the hearing once the said prescribed time had passed.  There can be no inference that the Tribunal failed to exercise its discretion in this respect.

  9. In relation to Ground 5, the letter from the Tribunal to the applicant dated 21 June 2004 indicated it had considered all the material relating to the applicant’s case and had made a decision which was to be handed down on 8 July 2004. That this was misunderstood by the applicant to mean that there was to be a further hearing on that date was an erroneous view formed by the applicant. The belief formed and held by the applicant cannot be characterised as a jurisdictional error by the Tribunal. On the face of the letter, the issue in respect to its content and intention could not be interpreted to have been issued for any other purpose than that of handing down its decision. The Tribunal’s actions and the content and presentation of its letter were within the authority of the Act.

  10. Mr Johnson submitted that in Ground 6 there is no basis upon which the applicant could find that the decision of the Tribunal to proceed without a hearing was unreasonable in the Wednesbury sense and that s.424(1) and (2) give wide powers to the Tribunal to request information. It could not be said the information requested fell outside the Tribunal’s authority under those sections. Once the applicant failed to reply with the request, the entitlement of the Tribunal to proceed as it did arose by force of s.424C(1) and s.425(2)(c). Mr Johnson submitted and I accept that there was plainly a jurisdictional basis upon which the Tribunal could proceed as it did and there is simply no evidence or other basis upon which it could be submitted that it was unreasonable for the Tribunal to do so on the material before it. Mr Johnson brought to the Court’s attention that the decision to proceed is not the decision that is under review; rather, the Court is reviewing the final and operative decision of the Tribunal to affirm the delegate’s decision.

  11. Section 424 does not make the need for information requested an objective matter for consideration of the Court. Subsection 424(2) confers the power on the Tribunal, expressly “within limited subsection (1)”, to “invite a person to give additional information”. No condition is placed upon that power, save that the request must be given as provided in subsection 424(3). Subsection 424(1) provides that the Tribunal, in conducting the review, “may get such information as it considers relevant”. Nowhere does the Act demand that any information that a person is invited to give under subsection 424(2) be essential or indispensable, or even necessarily important to the decision to be made. Here, the information requested was, in any event, plainly relevant. Ground 6 cannot be sustained.

  12. Grounds 7-9 as pleaded purport to relate to the way in which the Tribunal reasoned its decision. However, in effect, these grounds are an invitation to this Court to engage in a merits review. Grounds 7-9 claim that the Tribunal’s non-satisfaction upon the material before it was “unreasonable in the Wednesbury sense”. The applicant asserts that “voluminous enquiries” were made, requiring “much detail” and that the applicant needed to conduct overseas investigations in his homeland. The applicant contended that insufficient time was given for him to answer the notice. Despite this claim, the applicant made no request of the Tribunal for any extension of time allowing him to respond to the invitation. The letter containing the request under s.424 had allowed 23 days and the Tribunal had a power under subs.424B(4) to extend the period prescribed in the letter for a further prescribed period. The warnings that the applicant had received had been explicit as to the consequence of not answering the s.424 request within the prescribed period and as to the Tribunal’s inability to make a decision in his favour on the material already available to it. It is within the domain of the Tribunal to determine how much time is to be provided to allow the applicant to respond to the request.

  13. The Tribunal cannot affirm the grant of a protection visa unless it is satisfied that the criteria of the visas sought are fulfilled.  It was its lack of satisfaction by the Tribunal upon which its decision was based.  The Full Court decision in SJSB v Minister for Immigration & Multicultural & Indigenous Affairs per Ryan, Jacobson and Lander JJ at [15] their Honours explain the operation of s.65(1) of the Act:

    “…does not require the decision maker to reach a decision to refuse to grant a visa only if a particular matter is established.  Rather, it requires a refusal if the decision maker is not affirmatively satisfied that the criteria for the grant of the visa in question have been satisfied”.

  14. That passage has been affirmed in the recent Full Court decision of Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 per Black CJ, Sunberg and Bennett JJ at [17]. Similarly, in NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs per Allsop J at [63] his Honour found that the Tribunal was “obliged to refuse the visa” if it was “unsatisfied of the necessary criterion that Australia owed protection obligations to the appellant”.

  15. If illogicality was established, that would not be sufficient to vitiate the decision of the Tribunal.  There is no evidence before this Court in support of this contention however it is considered to ensure that any issue that may arise from the pleadings contained in Grounds 7-9 are complete in the absence of professional representation of the applicant in these proceedings.  This submission assists the Court in independently considering an unrepresented applicant’s position as required by Yo Han Chung v University of Sydney & Ors.  Irrationality is no different from illogicality.  In NACB v Minister for Immigration & Multicultural & Indigenous Affairs (“NACB”) at [24]-[30], a Full Court of this Court considered Appellant S106/2002 v Minister for Immigration & Multicultural & Indigenous Affairs and reached the conclusion at [30] that “… want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional”. In VWST v Minister for Immigration & Multicultural & Indigenous Affairs (“VWST”), another Full Court extracted what was there said in NACB, noting also that special leave was refused by the High Court in NACB and observing, at [17]: “Although not too much can be drawn from the High Court’s refusal of special leave, we note that in NACB the special leave point was said to be: ‘whether judicial review of an administrative decision is available where the requisite satisfaction of the decision maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds’ and that the reason for the refusal of special leave was that there were insufficient prospects of success”.  At, [18], the Full Court in VWST then concluded:

    “We are not convinced that the analysis in NACB is erroneous: see Transurban City Link v Allan (1999) 95 FCR 553 at [26] to [31]. Accordingly we agree that the current state of the law is that want of logic in the reasons of the RRT is not an available ground of review. This point was confirmed by a Full Court in NATC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 52, where NACB was referred to with approval at [25]. See also W404/01A of 2002 v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCAFC 255 at [35].”

  16. More recently, in WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs at [22], a further Full Court held that “illogicality has not been established by the authorities as a proper ground upon which to grant judicial review of a decision of the RRT”, citing NACB at [22]-[30] with approval.

  17. Ground 10 alleged a contravention of s.91V(1) of the Act. From the material contained in the Court Book, the applicant was not given any request under s.91V and the pleading appeared to be a misapprehension as to the nature and effect of that provision of the Act. There was no request by any officer for any statement on oath or affirmation as to the truth of information already given of the kind contemplated by s.91V of the Act. Mr Johnson submitted, and I accept his argument, that this section cannot be used to undermine s.424 and the effect of failure to comply with s.424 in the way the applicant attempts.

Conclusion

  1. I have not been able to identify any ground that the Tribunal has committed jurisdictional error.  The applicant’s claim should be dismissed.

  2. I am satisfied that an order for costs should be made in this matter.


    I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan

Date:  22 November 2005

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

2

Apm19 v Minister for Immigration [2020] FCCA 2513
Hong Yuan Constructions Pty Ltd (Migration) [2017] AATA 705