SZFIM v Minister for Immigration - [2005] FMCA 1943

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFIM v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1943

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa –applicant a citizen of Pakistan claiming well-founded fear of persecution for reasons of political opinion – Refugee Review Tribunal must give applicant prescribed period of notice to attend a hearing – 14 days notice – notice must be given by a method specified by Migration Act 1958 (Cth) s.441A – notification may be given by fax – communications must be sent to authorized recipient – when a fax transmission is taken to have been received.

MIGRATION – Reliance by the Tribunal on inconsistency between the protection visa application and the Applicant’s claims made at the Tribunal hearing does not involve any breach of Migration Act 1958 s.424A – ‘information’ does not encompass a failure to mention a matter to the Tribunal – a conclusion on the part of the Tribunal that there is an inconsistency between two pieces of information is not of itself ‘information’ for the purposes of s.424A (1).

MIGRATION – The provision of a file number where required on the RRT application for review form is not a re-publication of the protection visa application for the purpose of the purpose of the RRT review – a letter from the RRT acknowledging receipt of an application for review and informing the Applicant that the Tribunal will consider the DIMIA file does not of itself comply with s.424A (1) – t he RRT letter to comply with s.425 inviting the Applicant to a Tribunal hearing does not constitute compliance with s.424A (1) – compliance with s.424A (1) requires provision of specific information to an Applicant.

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.424, 424A, 474, 441A, 441C, 441G, 494D
Migration Regulations 1994 (Cth) Reg.4.35D

WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276
MZWPK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1256
SZFFC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1447
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1138
SZERV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1221
Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27
SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 769
M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131
SZDMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1034
VUAV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1271
SZEFG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1405
NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744

Applicant:

SZFIM

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG 3772 of 2004

Delivered on:

24 November 2005

Delivered at:

Sydney

Hearing date:

24 November 2005

Judgment of:

Scarlett FM

REPRESENTATION

Applicant:

In Person

Counsel for the Respondent:

Mr Potts

Solicitors for the Respondent:

Clayton Utz

ORDERS

That leave be given to join the Refugee Review Tribunal as a party to the proceedings.
The Refugee Review Tribunal is joined as Second Respondent.
That a writ of certiorari issue to quash the decision of the Refugee Review Tribunal made on 3 December 2004 and handed down on 17 December 2004.
That a writ of mandamus issue requiring the Refugee Review Tribunal to re-determine the matter according to law.
That there be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3772 of 2004

SZFIM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS 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. The Tribunal made its decision on 3 December 2004 and handed down its decision on 17 December 2004.
The decision of the Tribunal was to affirm a decision of a delegate of the Minister for Immigration and Multicultural Affairs made on

10 September 2004 not to grant a protection visa to the Applicant.

Background

The Applicant is a citizen of Pakistan who arrived in Australia on 22 May 2004. He applied for a protection (class XA) visa on 2 July 2004, which was subsequently refused.
On 5 October 2004 the Applicant sought a review of that decision by the Refugee Review Tribunal. He attended a hearing of the Tribunal on 3 December 2004 and gave oral evidence to the Tribunal. He also presented two letters to the Tribunal as evidence to support his case.
The Applicant claims a fear of persecution in Pakistan for the Convention reason of religion. He is a Shi’ite Muslim and claims to have been associated with the Pakistan Muslim League, known as the PML.
At the hearing the Applicant claimed to be a member of a faction of the PML called the PML-N, the Pakistan Muslim League Nawaz. He said that because he was a member of the PML-N he faced being persecuted or even killed by members of the party currently in power in Pakistan.

The Tribunal’s findings and reasons

The Refugee Review Tribunal accepted that the Applicant was a national of Pakistan. The Tribunal also accepted that the Applicant is a Shi’ite, although noting that this was an unsupported assertion.
The Tribunal made these findings at pages 112 and 113 of the Court Book:
The Applicant ultimately failed to support the position that he is an individual sectarian or political target of any group in Pakistan. He showed only a vague familiarity with political issues in Pakistan. His written and oral evidence was inconsistent and in particular his documentary evidence is dismissed as completely fraudulent. The Tribunal is very confident in these findings.
The Tribunal accepts that the Applicant is a moderately educated unskilled labourer in the maritime industry and that he has moved around with his job. The Tribunal does not accept that he has moved around to avoid persecution. The Tribunal finds that when the Applicant left Pakistan it was for employment reasons.
The Tribunal relies on the Applicant’s claims at Part C, Schedule A of his protection visa application and on the evidence of his legal departures from and unremarkable entries into Pakistan in its dismissal of its claims about the authorities seeking to kill him. The Tribunal does not accept that any group is trying to persecute the Applicant.
The Tribunal was not satisfied that the Applicant faced a real chance of Convention-related persecution in Pakistan and affirmed the decision not to grant a protection visa.

The Applicant’s Application and Amended Application

The Applicant filed his application for review on 24 December 2004. He filed an Amended Application on 4 April 2005, but appears not to have served a sealed copy, or any copy, on the solicitors for the Respondent Minister. Accordingly, the Respondents prepared their Outline of Submissions in Reply to the original application, which differed significantly from the Amended Application.
In the Amended Application, the Applicant seeks the following orders:
i)A declaration that the decision of the Refugee Review Tribunal was not a privative clause decision within the meaning of s.474 of the Migration Act 1958 (Cth).
ii)A declaration that the decision of the Refugee Review Tribunal’s decision was made in excess of jurisdiction and is consequently void and of no effect.
iii)A declaration that the Tribunal consider the matter according to law.
iv)Costs.
The Applicant relies on the ground that the Tribunal failed to exercise its jurisdiction by not observing a procedure that it was required by the Migration Act to observe. The particulars of that ground are:
a) Breach of s.425 of the Migration Act;
b)Breach of s.425A;
c)The Applicant did not authorize his migration agent to receive correspondence on his behalf; and
d)When the Tribunal notified the Applicant’s migration agent of the hearing scheduled for 3 December 2004 it did not notify the Applicant at his residential address. It is claimed that the Tribunal failed to notify the Applicant of the hearing.

The Applicant’s Submissions

The Applicant did not file a Written Outline of Submissions. He told the court that he had no idea about English and no knowledge of what his migration agent had put in his application. He could not get in touch with his migration agent. It turned out that his agent was in fact deregistered.

The Respondent’s Submissions

For the Respondent Minister, Mr Potts of counsel submitted that the Applicant’s grounds specified could not succeed. The Applicant had claimed that the Tribunal had breached ss.425 and 425A of the Migration Act by not giving the Applicant notice of the time and place of the hearing not less than 14 days from the date when notice is taken to have been received. The Applicant referred to the definition of “authorized recipient” in s.494D of the Migration Act.
Mr Potts submitted for the Respondent Minister that s.425A(3) provides that the Tribunal must give the Applicant the prescribed period of notice in relation to an invitation to a hearing. Regulation 4.35D(b) provides that the prescribed period is 14 days after the day on which notice is received. Section 425A(2) (b) provides that the notice must be given by one of the methods specified in s.441A. Section 441A (5) provides that one such method is by facsimile (fax) to the last fax number provided to the Tribunal to by the recipient in connection with the review.
In this case, the Applicant authorized the Tribunal to send communications to his adviser[1]. Under s.441G (1) the Tribunal was obliged to give the notice to the adviser. Mr Potts pointed out that whilst the Applicant had referred to s.494D the correct section was s.441G.
[1] A copy of the relevant page of the application for review showing that authorisation appears at page 61 of the Court Book.
Under s.441G (2), by giving notice to the adviser, the Tribunal is taken to have given it to the Applicant. On 18 November 2004 the Tribunal sent its letter dated 17 November[2] to the adviser by means of a fax transmission. Under the provisions of s.441C(5), the fax transmission is taken to have been received by the end of the day on 18^tNovember. Accordingly, the prescribed period of 14 days after the day on which the notice was received expired on 2 December 2004. As the hearing was scheduled for 3 December 2004 the prescribed period was given.
[2] A copy of that letter appears at pages 66 and 67 of the Court Book.

Conclusions

In my view, counsel for the Respondent Minister has cited the law correctly. It follows that the Applicant’s claim that he did not authorize Mr Mollah to receive correspondence on his behalf without the need for that correspondence to be sent to him personally will not succeed.
If a person is listed on the form as an ‘authorised recipient’, it is open to the Tribunal to send all correspondence to that person, which is what the Tribunal did in this case. I am also satisfied that the Tribunal, by sending its letter to the Applicant’s authorised recipient by fax on

18^th November 2004, complied with the requirement of s. 425A to give the prescribed period of notice.
The Applicant’s claim that the Tribunal fell into jurisdictional error in regard to the notification of the time and place of the Tribunal hearing cannot be sustained.
The Tribunal referred to the Applicant’s claims in his protection visa application in its decision. There are two s.424A issues that arise, or at least need to be considered.
First, counsel for the Respondent submitted that, to the extent that the Tribunal relied on any inconsistency between the Applicant’s protection visa application and the claims made at the hearing, this did not involve any breach of s.424A. “Information” does not encompass a failure to mention a matter to the Tribunal and it does not extend to an observation that the Applicant did not refer to a particular matter in his or her evidence. (See WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 at [26]; MZWPK v Minister for Immigration & Multicultural & Indigenous Affairs[3] [2005] FCA 1256 at [14]; and SZFFC v Minister for Immigration & Multicultural & Indigenous Affairs[4] [2005] FCA 1447 at [12]).
[3] An appeal from a decision of the Federal Magistrates Court
[4] Also an appeal from the Federal Magistrates Court.
In MZWPK v MIMIA (supra) at [14], Heerey J said:
The real problem from the point of view of the appellant’s case which the Tribunal has identified was simply the lack of any information. The word ‘information’ in s 424A (1) I think imports at least some positive factual material.
Similarly, in SZFFC v MIMIA (supra) at [12], Bennett J held:
‘Information’ does not encompass the Tribunal’s subjective appraisals, nor does it extend to identified gaps, defects or lack of detail or specificity in evidence, or to conclusions arrived at by the Tribunal by reference to gaps in the evidence (VAF v Minister for Immigration and Multicultural and Indigenous affairs (2004) 206 ALR 471 at [24(iii)]). Information does not encompass a failure to mention a matter to the Tribunal; information does not extend to an observation that the appellant did not refer to a particular matter in his evidence: WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276 at [26]).
Her Honour quoted with approval the decision of Heerey J quoted at paragraph 23 above.
The Full Court in WAGP of 2002 v MIMIA (supra) at [33] also held that a conclusion on the part of the Tribunal that there is an inconsistency between two pieces of information is not, of itself, “information” for the purposes of s.424A(1). (See also SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1138 at [21]-[22]; SZERV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1221 at [11]. Both of these decisions are appeal decisions from the Federal Magistrates Court).
In my view, counsel’s submission on this issue is clearly correct and I adopt it. There is no jurisdictional error in so far as the Tribunal relied on inconsistency between the Applicant’s protection visa application and the claims made at the hearing.
The second issue raised by counsel for the Respondent Minister arises from this passage from the Tribunal’s decision, at page 113 of the Court Book:
The Tribunal relies on the Applicant’s claims at Part C, Schedule A of his protection visa application and on the evidence of his legal departures from and unremarkable re-entries into Pakistan in its dismissal of his claims about the authorities seeking to kill him. The Tribunal does not accept that any group is trying to persecute the Applicant.
As counsel points out, the evidence of departures from and re-entries into Pakistan came from the Applicant’s passport, which was provided to the Tribunal at the hearing. There is a potential ‘Al Shamry’[5] issue in the Tribunal’s reference to the information in Part C, Schedule A of the Applicant’s protection visa application. In my view, it is more than a “potential” issue.
[5] Minister for Immigration & Multicultural Affairs v Al Shamry (2001) 110 FCR 27.
Counsel for the Respondent Minister made three submissions in support of his contention that the Tribunal had complied with s.424A.

I will deal with each of them in turn.
First, he submitted that the Tribunal’s findings in reliance on Part C, schedule A of the protection visa application were not sufficiently integral to the Tribunal’s decision such that they could be said to be “part of” the Tribunal’s reasons for its decision, thereby attracting the operation of s.424A.. (See SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 769 at [55]).
In SZDQL v MIMIA (supra) at [55], Sackville J sets out five propositions relevant to this issue that appear to be established by the authorities, which I will summarize:
i)In assessing whether information is the reason, or a part of the reason, for the RRT’s decision, the question is to be judged retrospectively, in the light of the RRT’s reasons, notwithstanding that s.424A(1) addresses the matter prospectively.
ii)Section 424A(1) requires identification of the reason for affirming the decision under review. It is usually the RRT’s lack of satisfaction that the applicant has a well-founded fear of persecution for a Convention reason, but some ‘unbundling’ of the immediate reason for the decision is required for the purposes of s.424A (1).
iii)The fact that the RRT acknowledges in its reasons that the information has some relevance to its determination does not necessarily mean that the information forms ‘a part of the reason’ for the decision.
iv)The approach that should be taken is set out in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [33]:
When a Tribunal’s reasons are to be evaluated for s.424A(1) purposes, the court as a matter of judgment is required to isolate what were the integral parts of the reasons for the Tribunal’s decision. That task, necessarily, is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy – and made the more so by less than explicit indications in the reasons themselves as to what the Tribunal itself considered to be integral.
v)A useful test is whether the 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 information and why it was relevant to the review (VAF at [41]).
It appears to me that the Tribunal’s findings about the Applicant’s claims at Part C, Schedule A of the Applicant’s protection visa application were integral to the Tribunal’s decision to affirm the decision of the delegate. The Tribunal says as much in the very words used:
The Tribunal relies on the Applicant’s claims at part C, Schedule A of his protection visa application and on the evidence of his legal departures from and unremarkable re-entries into Pakistan in its dismissal of his claims about the authorities seeking to kill him[6].
[6] Emphasis added.
I therefore reject counsel’s first submission.
Mr Potts then went on to make a second submission, that even if the Part C, Schedule 5 material was “information” that was “part of” the Tribunal’s reasons for its decision, by providing the DIMIA file reference number to the Tribunal[7], the Applicant effectively re-published the protection visa application to the Tribunal. (See M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131 at [25]; SZDMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1034 at [5]-[6]; VUAV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1271 at [10]; SZEFG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1405 at [34]-[36]. He submitted that the decision in NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744 is distinguishable.
[7] See page 61 of the Court Book
With respect, I disagree with this submission. The document to which counsel refers is the Applicant’s application to the Refugee Review Tribunal to review the delegate’s decision. At page 61 of the Court Book. The passage referred to by counsel is at Section

E of the form, where the Applicant was asked to tick a box to indicate the type of decision to be refused. He ticked the box for “a decision to refuse a protection visa”.

The form then contains two other boxes for the applicant to complete. The first box is for “Date of DIMIA letter notifying you of the DIMIA decision on your case”. The Applicant filled in the date 10/09/04. The next box is for “DIMIA file reference (if known):” The Applicant wrote down the number of his DIMIA file in that box.
I do not regard the provision of a file number in a box on the application for review as doing anything more than identifying the particular Departmental file containing the decision that the Applicant seeks to have reviewed. It cannot in any way be said to be a re-publication of the protection visa application for the purpose of the merits review to be conducted by the Refugee Review Tribunal.
Accordingly, I do not accept that the Applicant, by providing the file number when asked to do so in the Tribunal’s own form, re-published the protection visa to the Tribunal.
The third submission is to my mind even less persuasive. The submission is that the Tribunal sent to the Applicant a letter which was compliant with the tribunal’s obligations under s.424A of the Act. On

8 October 2004 the Tribunal sent to the adviser and the Applicant a letter which stated, inter alia:
We have asked the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) to send us its file so that the Tribunal can review your application for a protection visa.
When we get your file, we will decide if we can consider your review application. If we can consider it, a member of the Tribunal will look at the information you and DIMIA have given us and information about your country.
You should
·Immediately send us any documents, information or other evidence you want the Tribunal to consider…
That letter alone is not nearly sufficient to comply with the Tribunal’s obligations under s.424A. It is far too general to meet the requirements set out by Sackville J in SZDQL at [55]. The letter does not go near to identifying the reason for affirming the decision under review. It is far too vague and tentative to give the Applicant any idea of information that is ‘integral’ as opposed to ‘inessential’ (VAF at [33]), let alone informing the Applicant of anything that is so integral to the reasoning process that as a matter for fairness it should be told to the Applicant, together with its relevance to the review (see VAF at [41]).
The submission continues:
33. If this letter alone was insufficient, it was, read in conjunction with the letter of 17 November 2004[8], sufficient to comply with s.424A. The 17 November letter told the Applicant that the Tribunal had considered the material before it, but was unable to make a decision on that material alone. It invited the Applicant to a hearing to present oral evidence and arguments. It invited him to send any written arguments he wanted the Tribunal to consider. This, in combination with the earlier letter, complied with s.424A.
[8] See Court Book pages 66-67
In my view, neither letter complies with s.424A, either singly or together. The letter of 17 November 2004 is nothing more than the Tribunal’s standard s.425 letter that invites Applicants to a hearing because “The Tribunal has considered the material before it and is unable to make a decision in your favour on this information alone”. It undoubtedly complies with the requirements of s.425, but it does not, nor was it ever intended to, comply with the requirements of s.424A.
The authorities make it clear that, to comply with s.424A(1), the Tribunal must give to the applicant particulars[9] of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review. The very use of the word ‘particulars’ implies specific information, something that is different from other items of information and, in this case, is a piece of information that is integral to the decision that the Tribunal makes in the particular applicant’s case.
[9] My emphasis
Section 424A (1) requires specific information, rather than general information. Without that specificity, there cannot be compliance with s.424A (1).
In short, I do not accept the Respondent Minister’s third submission.
It must follow that the Tribunal’s findings in reliance on Part C, Schedule A in the Applicant’s protection visa application shows that this information was integral to the Tribunal’s decisions so as to form part of the Tribunal’s reasons for affirming the decision under review. The Tribunal did not give particulars of that information to the Applicant.

The Tribunal has not complied with s.424A(1) of the Act, which is a jurisdictional error. I propose to grant the application for relief. The Applicant is not and has not been legally represented, so I will make no order for costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: Virginia Lee

Date: 23 December 2005