SZFQN v Minister for Immigration
[2006] FMCA 1257
•1 September 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFQN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1257 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether second Refugee Review Tribunal hearing a fresh review – whether material before originally constituted Refugee Review Tribunal was before differently constituted Refugee Review Tribunal – use by differently constituted Refugee Review Tribunal of material before originally constituted Refugee Review Tribunal required compliance by differently constituted Refugee Review Tribunal with s.424A of Migration Act 1958 (Cth) – whether Refugee Review Tribunal exercised caution in adverse credit findings. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.414; 424A; 424A(1); 474; pt.8 div.2 |
| SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 Thuraisamy v Minister for Immigration & Multicultural Affairs [1999] FCA 1632 |
| Applicant: | SZFQN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG290 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 10 August 2006 |
| Date of last submission: | 10 August 2006 |
| Delivered at: | Sydney |
| Delivered on: | 1 September 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser |
| Counsel for the Respondent: | Mr G. Kennett |
| Solicitors for the Respondent: | Mr I. Muthalib, Blake Dawson Waldron |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG290 of 2005
| SZFQN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated
11 July 2003. The Refugee Review Tribunal decision affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) dated 15 October 2002. The application for a protection visa was refused on the basis that the applicant is not a person to whom Australia has protection obligations in accordance with the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
This is an application for review of a second decision of the Refugee Review Tribunal after an order made by Driver FM on 6 October 2004, remitting the matter to the Refugee Review Tribunal for “further consideration”.
The applicant is a 38 year old male, born 10 January 1968 in India, who claims to be a citizen of India and of Hyderabadi ethnicity and Islam faith (“the Applicant”).
The Applicant arrived in Australia on 25 August 2002, having legally departed from India on a passport issued in his own name and a visa issued on 19 June 2002.
On 24 September 2002, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by authorities due to his involvement in the Hyderabad Muslim Student Federation and in a social group he formed called Muslim Student Welfare Association to fight against discrimination being practised against Muslim students.
On 15 October 2002, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 12 November 2002, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. The Applicant did not attend the hearing before the Refugee Review Tribunal as originally constituted (“the First Tribunal”), and, on
11 July 2003, the First Tribunal affirmed the decision of the Delegate not to grant a protection visa. On 20 August 2003, the Applicant lodged an application in this Court seeking judicial review of the decision of the First Tribunal.
On 21 October 2004, by consent, the matter was remitted to the Refugee Review Tribunal. The Applicant attended a hearing before the Refugee Review Tribunal differently constituted (“the Second Tribunal”), who affirmed the Delegate’s decision under review on
24 December 2004.
On 3 February 2005, the Applicant filed an application in this Court seeking judicial review of the decision of the Second Tribunal.
The Second Tribunal proceeding
The decision of the Second Tribunal is accurately summarised by the First Respondent in her written submissions as follows:
“Briefly, the Applicant claimed that he had been discriminated against because of his religion (Islam) and that he had been harassed, beaten and “roped in many false cases” by Hindu extremists because of his activity in two Muslim student organisations.
The Tribunal had before it a request made to the Applicant by the earlier Tribunal for more detailed information about aspects of his claims, and a submission from the Applicant (with numerous attachments) in response. In the course of its reconsideration of the matter, the Tribunal received a further submission from the Applicant and two letters, purporting to be from the student organisations in which he had been active and supporting his claims (“the letters of support”). The Applicant also gave oral evidence at a hearing on 10 December 2004.
The Tribunal noted that, despite “repeated questions”, the Applicant’s answers had been “general and vague” and that he had been unable to answer some questions. It gave several examples of answers which “demonstrate the vagueness and generality of the applicant’s responses.”
The Tribunal also noted that the letters of support failed to confirm, and in some respects contradicted, the claims which the Applicant had made. It concluded that the letters were not authentic.
Overall, the Tribunal was “satisfied that the applicant is not a credible witness.” It concluded that he had “fabricated a number of his claims” and his application for a protection visa was “baseless”. Specifically, the Tribunal did not accept that the Applicant had been involved in any way with the two student organisations. Accordingly it did not accept “that the applicant has suffered any of the claimed harm”.
Further, the Tribunal noted that the Applicant had left and returned to India on several occasions (including one visit to Australia) at times when he claimed to have been in fear of persecution. In view of these matters and the evidence as a whole, it concluded that he did not have a “genuine fear of persecution.””
The proceeding before this Court
The Applicant was represented by Counsel, Mr Zipser, at the hearing before this Court. By consent, the Applicant filed in Court a further amended application that relied on the following two grounds:
“1. The Tribunal based its decision in part on information the applicant provided or did not provide to a previous Tribunal. If this was information to which s 424A of the Migration Act applied, then the Tribunal contravened s 424A, giving rise to jurisdictional error.
2. The Tribunal found that the applicant did not have a genuine fear of persecution. One reason for this finding was “the [applicant’s] delay in lodging a protection visa application”. Courts and commentators in the field of refugee law have commented that decision-makers must exercise caution before rejecting a claim on the basis of delay in making the claim. The Tribunal has contravened this principle. As a result, there was jurisdictional error.”
Ground 1 –Was information used by the Second Tribunal in breach of s.424A of the Act
Counsel for the Applicant contended that the Second Tribunal erred in having regard to questions from the First Tribunal contained in a letter, dated 17 June 2003 and the answers provided by the Applicant’s advisor in a letter dated 18 July 2003. Counsel for the Applicant contended that the findings by the First Tribunal of the inadequacy or general and vague nature of the answers in the letter from the Applicant’s advisors, dated 18 July 2003, was information provided to the First Tribunal for its review and was part of the reason for the First Tribunal affirming the decision of the Delegate to refuse the Applicant a protection visa.
Counsel for the Applicant contended that the Second Tribunal was conducting a fresh review and was therefore required, pursuant to s.424A(1) of the Act, to give that information in writing to the Applicant for comment where the vagueness of the answers in the letter, dated 18 July 2003 from the Applicant’s advisors, was part of the Second Tribunal’s reasons for affirming the decision under review.
The passage relied upon by the Applicant in support of this contention is in the following terms:
“Throughout the hearing on 10 December 2004 and in response to repeated questions by the [Second] Tribunal, the applicant continued to provide general and vague answers in relation to his claims. Indeed, at times, he was simply unable to answer some questions. This is important given the fact that the previous [First] Tribunal had sought specific details about a number of the applicant’s claims, clearly putting the applicant on notice that his claims were lacking in details.”
Counsel for the Applicant’s written submission on this point is in the following terms:
“The fact that “the previous Tribunal had sought specific details about a number of the applicant’s claims” and the previous Tribunal had put “the applicant on notice that his claims were lacking in details” is “a part of the reason [of the Second Tribunal] for affirming the decision that is under review”.
If the term “information” in s 424A means information provided to the present Tribunal but not information provided to a previous Tribunal, then the Second Tribunal failed to comply with s 424A in the present case.
The applicant contends that the term “information” in s 424A means information provided to the present Tribunal but not information provided to a previous Tribunal. This contention turns on the meaning of the word “application” in s 424A(3)(b).
There are two reasons why the term “application” in s 424A(3)(b) means the application before the Second Tribunal and does not include the application before the First Tribunal.
First, in MIMA v Wang (2003) 215 CLR 518 at [68] and [76]-[77] Gummow and Hayne JJ stated:
“On that second review the respondent, as applicant for a visa, could be expected to appear to give evidence and present arguments, and, so far as the court’s orders were concerned, it was a review to be conducted in the ordinary way…
“There is a further important consideration which bears upon the correctness of the direction which the Full Court gave about the constitution of the tribunal. It relates to the task that the tribunal will have to perform on a reference bank. When the tribunal reviews a decision to refuse a protection visa it must decide whether the applicant is, at the time of the tribunal’s decision, a person to whom Australia owes protection obligations. So much follows from the fact that the tribunal exercises afresh the powers of the original decision-maker.”
It is implicit in these statements that, where the Tribunal makes a decision and a court subsequently quashes the decision on a judicial review application and remits the matter to the Tribunal to be redetermined according to law, unless the court qualifies its orders in some way, the Tribunal must conduct a second review “in the ordinary way”. On remitter, the matter is treated as a fresh application.
Second, in MIMA v Al Shamry (2001) 110 FCR 27 at [17] Ryan and Conti JJ stated:
“If… there is ambiguity in the expression as used in s 424A(3)(b), it should be resolved against the Tribunal since subs (3) operates to relieve the Tribunal from affirmative obligations imposed by s 424A(1) for the benefit of the applicant. Consistently with established principles, a construction should be adopted which preserves, rather than diminishes, that benefit.”
If this Court agrees that the term “application” in s 424A(3)(b) means the application before the Second Tribunal, it follows that there was non-compliance with s 424A and hence jurisdictional error.”
In his oral submissions, Counsel for the Applicant conceded that this Court is bound by the decision of the Full Court of the Federal Court in SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 (“SZEPZ”), which held that:
“[39] In any event, when ss 421, 422 and 422A refer to ‘a particular review’, they identify the review initiated under s 414(1) and culminating in a decision in accordance with s 430, being the review that a particular person, namely the applicant for review, has initiated in respect of an RRT-Reviewable Decision. The expression does not depend upon the identity of the particular member constituting the Tribunal. Rather, it refers to the function of the Tribunal to review a decision. Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.” [emphasis added]
In accordance with the principle expressed above by the Full Court of the Federal Court in SZEPZ, there is only one application for review before the Refugee Review Tribunal.
In the case before me, on 12 November 2002, the Applicant lodged with the Refugee Review Tribunal his application for review of the Delegate’s decision. The First Tribunal decision was the subject of an application filed in this Court on 14 April 2004, in which the Applicant sought Constitutional writ relief in respect of the First Tribunal’s decision, and on 6 October 2004, by consent, on the basis that the Refugee Review Tribunal’s decision was affected by jurisdictional error, Driver FM remitted the matter to the Refugee Review Tribunal to be determined according to law.
In those circumstances, the Refugee Review Tribunal had not discharged its duty under s.414 of the Act upon initiation of a valid application by the Applicant to conduct a review and make a decision according to law.
However, the Full Court in SZEPZ made it clear that the materials or information that was validly obtained by the First Tribunal for the purposes of the review initiated by the Applicant was still before the Second Tribunal even though the decision of the First Tribunal had been set aside.
In the circumstances, the Second Tribunal was not obliged to give to the Applicant any information already given to the First Tribunal by the Applicant. Because there is only one review being conducted by the Refugee Review Tribunal and the Applicant’s advisor’s letter dated
18 July 2003 was given by the Applicant to the First Tribunal, that letter is also before the Second Tribunal for the purposes of the Applicant’s review.
There is only one review (SZEPZ at [39]). Accordingly, where the decision of the First Tribunal was affected by jurisdictional error, the statutory process of review has not been completed until a decision is made pursuant to a valid process of review. The review of the Delegate’s decision conducted by the Refugee Review Tribunal pursuant to the only application for review lodged by the Applicant is concluded only by a valid decision of the Second Tribunal.
In the circumstances, there is no enlivenment of the obligations imposed by s.424A of the Act did not impose on the Second Tribunal any obligation on the Second Tribunal to give to the Applicant information that the Applicant had given to the First Tribunal in connection with the only application for review that had been made.
Accordingly, this ground is not made out.
The Applicant relied on a further particular of an alleged breach by the Tribunal of s.424A. However, Counsel for the Applicant conceded that, if I were to find, as I do, that the review by the First Tribunal was part of the only review being conducted by the Refugee Review Tribunal, then this particular must fail because it also related to material that was validly before the First Tribunal and was therefore before the Second Tribunal.
Accordingly, ground 1 is rejected.
Ground 2 – Whether the Second Tribunal was sufficiently cautious in considering the Applicant’s evidence of delay in seeking protection
Counsel for the Applicant contended that the Second Tribunal erred in making an adverse credit finding in respect of the Applicant based on his delay in applying for a visa application in Australia on 20 September 2002.
Counsel for the Applicant submitted that decision makers should be cautious about rejecting an applicant’s claim on the basis of delay in making the claim and should consider sympathetically, explanations for any delay in the making of claims (Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558; Thuraisamy v Minister for Immigration & Multicultural Affairs [1999] FCA 1632 at [10]).
A fair reading of the Second Tribunal’s decision makes it clear that, whilst the Second Tribunal had regard to the delay in lodging a protection visa application, the Second Tribunal also had regard to the Applicant’s return to India from Saudi Arabia on at least three occasions prior to coming to Australia at a time during which he claimed to have feared persecution in India. The Second Tribunal also noted that the Applicant had come to Australia initially on 3 October 2001 and did not apply for a protection visa. The Second Tribunal noted the Applicant’s explanation that he did not know that he could apply for a protection visa, but did not find it persuasive.
In those circumstances, the Second Tribunal’s finding that the Applicant does not hold a genuine fear of persecution was not based solely on the delay of the Applicant in lodging his protection visa application on 20 September 2002, having arrived in Australia on
25 August 2002.
Accordingly there is no error, let alone jurisdictional error, in the manner in which the Second Tribunal considered the evidence of the Applicant’s delay in applying for a protection visa.
In the circumstances, the conclusion of the Second Tribunal that, having considered all the evidence, it was not satisfied that the Applicant suffered the harm claimed was a conclusion that was open to it on the evidence and material before it and for which it gave valid reasons.
Accordingly, Ground 2 is rejected.
Conclusion
There being no jurisdictional error in the Second Tribunal’s decision, it is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S. Tsang
Date: 1 September 2006
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