SZFEOA v Minister for Immigration

Case •

[2005] FMCA 1814

•

7 December 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFEOA v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1814
MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the Applicant a protection visa – Applicant a citizen of Iran – witness – whether Tribunal’s decision not to call a witness at the request of the Applicant constituted procedural unfairness.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 426

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 769
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
VBAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 965
NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744
Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry (2001) 110 FCR 27
M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131
SZFKL v Minister of Immigration & Multicultural & Indigenous Affairs [2005] FCA 931

Applicant: SZFEOA
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 3568 of 2004
Delivered on: 7 December 2005
Delivered at: Sydney
Hearing dates: 9 August and 16 September 2005
Judgment of: Scarlett FM

REPRESENTATION

Counsel for the Applicant Mr Zipser
Counsel for the Respondent: Mr Braham
Solicitors for the Respondent: Phillips Fox

ORDERS

  1. Leave to join Refugee Review Tribunal as a Respondent.

  2. That the Refugee Review Tribunal is joined as Second Respondent to the application.

  3. That there be an order in the nature of certiorari to quash the decision of the Refugee Review Tribunal (“the Tribunal”) made on 29 October 2004 ;

  4. That there be an order in the nature of mandamus requiring the Tribunal to review according to law the decision made by a delegate of the Minister on 30 August 2002 to refuse a protection visa sought by the Applicant.

  5. That the First Respondent pay the Applicant’s costs fixed in the sum of $3,388.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3568 of 2004

SZFEOA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 29th October 2004 after a hearing that took place on 5th December 2003. The Refugee Review Tribunal handed down its decision on 23rd November 2004.

  2. The decision of the Tribunal was to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs made on 30th August 2002 not to grant a protection visa to the Applicant.

Background

  1. The Applicant is a citizen of Iran who arrived in Australia on board ship on 22nd October 2001. He left the ship and applied for a protection visa on 8th November 2001. The application was refused the following year and the Applicant then applied for a review by the Refugee Review Tribunal.

  2. The Tribunal wrote to the Applicant on 18th November 2003, inviting him to attend a hearing on 5th December 2003, after previously scheduling a hearing for 28th November 2003. The Applicant’s solicitor sent back his Response to Hearing Invitation on 27th November 2003 by fax. In that document the Applicant’s solicitor provided details of two witnesses whom the Applicant wanted called. One was his mother in Iran and the other was a man who, like the Applicant, had worked on an Iranian ship.

  3. On 4th December 2003 the Applicant’s solicitor faxed details of four people whom the Applicant wanted to be called as witnesses. Two were the Applicant’s mother and the Iranian seaman previously mentioned, the other two were the Applicant’s brother in England and an Iranian academic in Melbourne.

  4. Again, on 4th December 2003 the Applicant’s solicitor wrote to the Tribunal enclosing copies of the following documents:

    a)A seven page report from Forensic Document Services in relation to a summons mentioned in the delegate’s decision.

    b)A report from the Iranian academic whom the Applicant wanted to call as a witness.

    c)Two documents in the Iranian language that the Applicant left with the solicitor the day before, apparently a summons and a verdict from an Iranian Court.

  5. The Applicant’s solicitor wrote to the Tribunal on 20th January 2004 making further submissions. The letter noted a comment by the Tribunal Member about evidence of the Applicant’s membership of an activist organisation not being “compelling” and pointed out that evidence is not required to be compelling to establish an Applicant’s case. The letter noted the evidence that the Applicant’s brother would have given and the fact that the Tribunal did not take evidence from him.

  6. The Tribunal wrote to the Applicant on 21st May 2004, giving certain information about the Applicant’s documentation provided from DFAT and seeking the Applicant’s comments by 15th June. The Applicant’s solicitor wrote to the Tribunal on 15th June 2004 making submissions in reply to the points raised by the Tribunal’s letter.

  7. The Tribunal wrote again to the Applicant’s solicitor, who replied with a detailed submission on 24th June 2004.

  8. On 8th October 2004 the Tribunal wrote to the Applicant, saying:

    Because of delays which have occurred in finalising the decision in relation to your application, (the Tribunal member) wishes to give you an opportunity to provide final written submissions in relation to your claims.

  9. The letter asked the Applicant to reply to ten questions and also provided advice about information received from DFAT, the Canadian Immigration and Refugee Board and the United States State Department. The Applicant’s solicitor replied on his behalf on 22nd October 2004. The letter also contained a statutory declaration by the Applicant.

The Tribunal’s decision

  1. The Refugee Review Tribunal handed down its decision on 2nd November 2004. The Tribunal decided that the Applicant was not entitled to a protection visa.

  2. The decision gave a summary of the Applicant’s case, described the process of the hearing and included country information. The decision also covered the notice under s.424A sent by the Tribunal and provided summaries of the submissions made by the Applicant’s solicitor.

  3. In the Tribunal’s Findings and Reasons, the Tribunal accepted that the Applicant was an Iranian national, but expressed the view that significant parts of the Applicant’s evidence were implausible and inconsistent with the independent advice before the Tribunal. The Tribunal member also said that the explanations provided by the Applicant provided for problems with his evidence were not persuasive. Overall, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason.

The applicant’s further amended application

  1. The application was listed for final hearing on 9th August 2005. It was scheduled to take half a day but it extended into a second day, which had to be 16th September 2005. On the first hearing day, the Applicant’s counsel, Mr Zipser sought leave to file a further Amended Application.

  2. The further Amended Application contained the following grounds:

    a)The Applicant arranged for four witnesses to give evidence at the hearing before the Tribunal. The Tribunal declined to take evidence from three of the witnesses, at least one of whom would have given evidence supportive of the Applicant’s claims. In the circumstances of the case, the Tribunal denied the Applicant procedural fairness or otherwise fell into jurisdictional error.

    b)The Applicant’s mother gave evidence corroborating the Applicant’s claim that the family home was searched in 2001. The Tribunal placed no weight on the mother’s evidence. For this and other reasons the Tribunal fell into jurisdictional error in dealing with the mother’s evidence.

    c)The Tribunal relied on information provided to it by a person other than the applicant, in contravention of the principle in SAAP v MIMIA [2005] HCA 24. On this basis the Tribunal fell into jurisdictional error.

    d)One reason the Tribunal dismissed the Applicant’s claims was because “his knowledge of the [MKO] was scanty”. The transcript of the hearing before the Tribunal indicates that the Applicant’s knowledge was not scanty. In the circumstances of the case, the Tribunal fell into jurisdictional error.

    e)The Tribunal fell into jurisdictional error in dealing with the three court documents provided by the Applicant to the Tribunal.

    f)The Tribunal ignored the statement provided by Dr T (the Iranian academic), giving rise to jurisdictional error.

Conclusions

  1. In my view, there is no substance to the Applicant’s argument that the Tribunal fell into error by placing no weight on the Applicant’s mother’s evidence. The Tribunal heard the mother give evidence, and rejected that evidence on the grounds of credit. The Tribunal stated that:

    However, the applicant’s mother gave evidence in a very vague and confused manner. In view of this, and given that as the applicant’s mother she cannot be described as objective or impartial, I place no weight on her evidence in this regard.[1]

    [1] See Court Book page 184.

  2. Whilst it would be problematic for a Tribunal member to make it a practice to reject otherwise credible evidence from an applicant’s mother because of a lack of objectivity or impartiality, the Tribunal rejected the mother’s evidence because of the “vague and confused” manner in which it was given. The evaluation of the credibility of a witness is entirely a matter for the Tribunal. There is no jurisdictional error in this regard.

  3. Turning to the ground raised by the Applicant that the Tribunal fell into error by describing the applicant’s knowledge of the [MKO] was scanty, the Tribunal said:

    The applicant’s evidence generally about the MKO was problematic. His knowledge of the organisation was scanty. If he had been a long-term supporter of the organisation, I would have expected him to be able to demonstrate considerably more knowledge of the organisation than he was able to demonstrate at the hearing.[2]

    [2] See Court Book at Page 185.

  4. In my view, this passage is no more than an assessment of the Applicant’s evidence by the Tribunal member. It is entirely a matter for the Tribunal. It is not, in my view, permissible, to rely on the transcript of the hearing to persuade the court that the Applicant had a greater knowledge of the organisation than would be described as “scanty”. To do so would be to embark on a merits review, which is impermissible. There is no jurisdictional error in this regard.

  5. The Applicant claims that the Tribunal fell into jurisdictional error in dealing with the three Iranian court documents provided by the Applicant. In my view, there was evidence available that entitled the Tribunal to dismiss the documents as not being genuine. The Tribunal’s reasons, for doing so relied on the opinions of the two Iranian lawyers consulted by the Australian Embassy in Tehran. The Tribunal said:

    The reasons for the legal opinion that the documents appeared genuine are much more detailed and comprehensive than the lawyer who expressed the view that the documents appeared genuine. In the circumstances, I prefer that opinion to the opinion that the documents are genuine.[3]

    [3] See also at Page 185 of the Court Book.

  6. The Tribunal was entitled to form that view. It is not open to the Court to form its own view of the evidence and substitute that view for the Tribunal’s view. So long as there is evidence available to allow the Tribunal to come to the conclusion that it did, and there was, the Tribunal was entitled to do so.

  7. This ground of review does not succeed.

  8. The Applicant claims that the Tribunal denied him procedural fairness by declining to take evidence from his brother, who lives in London. For the Applicant, Mr Zipser submits that the Tribunal took evidence from the Applicant’s mother but declined to take evidence from the remaining witnesses, including the brother. At the time that the Tribunal member said that the Applicant’s mother was the only witness to be heard, the Tribunal member knew that:

    a)the applicant’s brother in England was involved with the MKO;

    b)the brother had obtained refugee status in England on the basis of his MKO related persecution; and

    c)the applicant was in contact with his brother and they had discussed the MKO.

  9. The request was made to the Tribunal that the Applicant’s brother should be called to give evidence only a day before the hearing. Section 426 of the Migration Act 1958 provides that the Applicant may, within 7 days after being notified of the appointment of a hearing, give the Tribunal written notice that the Applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice (s.426(2)). If the Tribunal is notified by an applicant under subsection (2), the Tribunal must “have regard” to the Applicant’s wishes but is not required to obtain that evidence from the person.

  10. It is clear that the Tribunal was under no obligation to take evidence from the Applicant’s brother. As the notice had only been given to the Tribunal the day before the hearing, the Tribunal was not even obliged to “have regard” to the applicant’s wishes that the Tribunal should take evidence from his brother, nor was the Tribunal obliged to have regard to the Applicant’s wish to take evidence from the Iranian academic.

  11. Section 426 is contained in Division 4 of Part 7 of the Migration Act. Section 422B makes it clear that the subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals.

  12. I am concerned that a refusal to call a witness said to be important to the Applicant may create a perception of unfairness. In this case, the brother was only nominated as a witness a short time before the hearing, whereas the mother was nominated earlier. The Tribunal did accede to the request to take evidence from the Applicant’s mother.

  13. For the Applicant, Mr Zipser conceded whether there has been a denial of procedural fairness depends on the circumstances of the case.  It is also relevant that the presence or absence of an adviser is a factor to be taken into account.

  14. In all the circumstances, I am not satisfied that there has been procedural unfairness such as to constitute jurisdictional error on this ground.

  15. The final issue that needs to be decided is the question of the Tribunal’s reference at pages 183 and 184 of the Court Book to the visit to the Applicant aboard his ship by people whom he said were MKO supporters. The Tribunal did not accept that those people were active with the MKO at the time they visited the Applicant. The Tribunal said:

    In relation to this, I consider it implausible that active MKO supporters would come on board an Iranian government-owned ship to discuss MKO business. During the hearing the applicant claimed that his friends had not given their real names when they signed in. However, the protection visa application states that the applicant’s guests had signed their names in the visitor’s book, “not suspecting that their names were still of adverse interest to the authorities in Iran” – indicating that they were signing their correct names.[4]

    [4] Court Book pages 183-4.

  16. The Applicant’s counsel submits that this is a jurisdictional error. The Tribunal used the evidence against the Applicant but this evidence came from a document that was not prepared by the Applicant. On this basis, the Tribunal should have put the information to the Applicant in writing and given him an opportunity to comment: see SAAP v MIMIA [2005] HCA 24.The failure to put this to the Applicant is, he submits, involved jurisdictional error.

  17. Counsel for the First Respondent Minister, Mr Braham, submitted that the information in the protection visa application does not meet the test identified by VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 and adopted by Sackville J in SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 769. The test is that for s.424A purposes such information was:

    ‘So integral to the reasoning process rejecting the [applicant’s] claim as to require as a matter of fairness that the [applicant] be told that the information (cf s 424A (1) (a) and why it was relevant to the review (cf s 424A (1) (b))’ VAF, at [41]; VUAX, at [53]-[54].

  18. Mr Braham also submitted that where a Tribunal relies on alternative reasoning processes to arrive at the result, a breach of s.424A affecting only one such strand of reasoning is not a basis for setting aside the decision: VBAP v MIMIA [2005] FCA 965 at [33]. He submitted that in the present case the Tribunal arrived at its conclusion on the alternative bases that the Applicant’s guests neither signed their own names, nor assumed names, when accessing the Iranian ship as visitors.

  19. To my mind, this cannot be described as making a finding on alternative bases. What the Tribunal went on to say was:

    In my view, given the attitude of the Iranian government to MKO supporters, I do not accept that an active MKO supporter would ever consider him or herself no longer of adverse interest to the Iranian authorities and would be prepared to take the risk of going on board an Iranian government owned ship, regardless of whether they did so in their own name or an assumed name.[5]

    [5] Court Book page 184.

  20. I consider that the reference to the information in the Applicant’s protection visa application was used by the Tribunal towards rejecting the Applicant’s claim that he was involved with the MKO, which was integral to his claim of a well-founded fear of persecution. As Jacobson J noted in NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744, in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27, the Full Court of the Federal Court held that information to which s.424A (3) (b) refers is information given by an applicant to the Refugee Review Tribunal for the purpose of the application for review, and not information given on the original application for a visa.

  21. In M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131, Gray J considered the situation of a passport and some documents relating to the applicant’s family’s financial circumstances, which had been uses by the Tribunal in affirming the delegate’s decision. His Honour went to held that it was an error to hold that provision of the passport as part of the original application for a protection visa was sufficient to exclude the operation of s.424A.

  22. Against this, in SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931, Madgwick J found that s.424A would not apply to a situation where the Tribunal found inconsistencies between the written claims submitted with the visa application and the appellant’s evidence at the Tribunal hearing.

  23. However, the decision in SZFKL (supra) can be distinguished on its facts, because Madgwick J noted that those inconsistencies had been brought to the appellant’s attention during the Tribunal hearing and he had confirmed to the Tribunal member that he was satisfied of the accuracy of the information in his visa application in the supporting statement (at [7]).

  24. In any event, even the fact situation in SZFKL was not held to be sufficient by Jacobson J in NAZY (supra).

  25. The decisions of NAZY, M55 (supra) and SZFKL are all appeal decisions from Federal Magistrates and are, therefore, all binding on the Federal Magistrates Court.

  1. On the above authorities, I am satisfied that the Tribunal’s use of the information in the Applicant’s visa application formed part of the reason for the Tribunal affirming the decision under review. The Tribunal did not give this information to the applicant and invite him to comment about it. I am not of the view that the information fell within s.424A(3)(b).

  2. It follows that there is a breach of s.424A(1), which constitutes jurisdictional error. I propose to grant the application and make orders in the nature of certiorari and mandamus.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  6 December 2005


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

0