SZGME v Minister for Immigration
[2007] FMCA 178
•23 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGME v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 178 |
| MIGRATION – Review of Refugee Review Tribunal decision [conflict of binding authority] – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.45, 46, 47, 65, 69, 91X, 416, 483A Migration Regulations 1994 (Cth), reg.2.07, 2.10 |
| Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 Collector of Customs (NSW) v Brian Laylor Automotive Pty Ltd (1979) 41 FLR 338 Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Kundu v Minister for Immigration [2000] FCA 560 Minister for Immigration v Ahmed (2005) 143 FCR 314 Minister for Immigration v Li (2000) 103 FCR 486 Phanouvongv Minister for Immigration [1999] FCA 1489 Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57 SAAP v Minister for Immigration [2005] HCA 24 SCAT v Minister for Immigration (2003) 76 ALD 625 SZECD v Minister for Immigration [2006] FCA 31 Transurban City Link Ltd v Allan (1999) 95 FCR 553 Uddin v Minister for Immigration [2005] FCAFC 218 Yilmaz v Minister for Immigration (2000) 100 FCR 495 Zubair v Minister for Immigration (2004) 139 FCR 344 |
| Applicant: | SZGME |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1472 of 2005 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 19 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 23 February 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Foreman |
| Solicitors for the Applicant: | Mr N Dobbie of Parish Patience |
| Counsel for the Respondents: | Mr G Kennett |
| Solicitors for the Respondents: | Ms T Quinn of DLA Phillips Fox |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The name of the first respondent be amended to read ‘Minister for Immigration and Citizenship’.
The application filed on 7 June 2005 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1472 of 2005
| SZGME |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
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 7 June 2005 for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 20 October 1998, affirming a decision of the delegate of the first respondent made on 19 June 1997, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZGME”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
For the purposes of this application, the following affidavits have been tendered and were admitted into evidence:
a)Affidavit of the applicant, affirmed 13 June 2006 (“first affidavit of the applicant”);
b)Affidavit of the applicant, affirmed 14 June 2006 (“second affidavit of the applicant”);
c)Affidavit of Etienne de Villiers Hugo, solicitor, affirmed 13 June 2006 (“affidavit of Mr Hugo”)
A Court Book (“CB”) prepared by the respondents’ solicitors was filed on 5 August 2005.
Background
The decision of Tribunal member Mr J Godfrey, reference N97/17349, contains the following background information. The applicant and her husband and daughter are from Armenia and arrived in Australia on
18 January 1996. On 25 November 1996, they lodged a combined application for a protection visa with the Department of Immigration under the Act. On 19 June 1997, a delegate of the Minister refused to grant a protection visa and on 23 June 1997, the applicants sought review by the Tribunal of the delegate’s decision.(CB 118)
The applicant’s husband was born in Tabriz, Iran. The applicant was born in Karabakh, what is now Azerbaijan, and the applicant’s daughter in Yerevan, Armenia. They claimed they lived in a small village of Atabek, that they carried passports issued by the former Soviet Union, and were “non-persons” and not actually Armenian.They said that life in Armenia was dangerous because they were not native born. They claimed they were the subject of beatings, discrimination, threats, and inferior career paths because of their ethnicity. They said that when the present crisis began in 1991 they left their village. They said that refugees in Armenia had difficulty in obtaining citizenship. Their home was destroyed in fighting and they lost all their possessions and all possibility of a normal life. They said that their only source of funds was money sent by their son in Australia.(CB 120)
On 28 May 1997, a Departmental officer was contacted by a person who said that the applicant and her family had included false information in their application for a protection visa. The informant said that they were not from Atabek village, but had lived in Yerevan for the past 17 years. Following receipt of this information, the department contacted the Australian Embassy in Moscow and was advised that the visitor visa applications lodged by the family gave their address as Yerevan. The Embassy also advised that an application for migration lodged by the applicant’s daughter had been rejected in Moscow, as had the original application for visitor visas.
In subsequent applications, lodged after the Departmental decision had been made, the applicants said that they came from a village captured during the fighting. Despite this, they said, the Armenian authorities were saying that people from the disputed territory must return home. This, they said, would result in their certain death.(CB 121)
Facts of the visa application
The applicant’s outline of submissions prepared by Mr Dobbie, the applicant’s solicitor, sets out the details of the protection visa application made by the applicants. I adopt paragraphs 2 to 18 of those submissions for the purposes of this judgment:
2.On 25 November 1996, the Mother, her husband (“the Father”) and her daughter (“the Daughter”) lodged a Form 866B, entitled “Application for a Protection Visa”.
3.On the Form 866B, the Daughter was listed as the first applicant, the Father was listed as the second applicant, and the Mother was listed as the third applicant. All three signed the Form 866B. By ticking the relevant box:
a) the Daughter indicated that she had her own claims to be a refugee;
b) but the Mother and the Father indicated that they did not have their own claims to be a refugee.
4.Next to the relevant box to be ticked, the Form 866B provided that:
a) where an applicant does not have his or her own claims to be a refugee, “You must complete a Form D”; and
b) where an applicant does have his or her own claims to be a refugee, “You must complete a Form C”.
5.The Daughter completed a Form 866C dated 25 November 1996, which was lodged at the same time as the Form 866B (“Daughter’s Form 866C”). In answer to questions 36, 37, 38, 39 and 40, the Daughter’s Form 866C provided “STATEMENT TO BE [ILLEGIBLE].”
6.By letter dated 3 February 1997, an officer of the Department of Immigration and Multicultural Affairs (“the Department”) wrote to the Daughter acknowledging that it had received her application.
7.Under cover of a letter dated 11 March 1997 which was headed “RE: FILE NO: N97/1633 [THE DAUGHTER’S NAME] DOB 19/7/76”, a migration agent provided a copy of what was described in the covering letter as “…further information recently supplied by our client”. The document enclosed was signed by all three applicants and purported to be on behalf of all of them.
8.Following matters not presently relevant, by letter dated 1 May 1997, an officer of the Department wrote to the Daughter in the following terms:
“On 25 November 1996, you lodged an application form for a Protection Visa with the Department of Immigration and Multicultural Affairs. As your parents appear to have their own claims for refugees status, they will both need to complete a copy of Form C (Application for a Protection Visa (866)) enclosed.
NOTE: If your parents do not have their own claims to be a refugee, they should still fill out the enclosed Form D.”
9.The Mother never provided either a Form 866C or a Form 866D to the Department.
10.On 19 June 1997, a delegate of the First Respondent determined the Daughter’s application for a protection visa. The delegate:
a) noted that the Mother and the Father had not made their own specific claims;
b) indicated that her source of power was section 65 of the Migration Act 1958 (Cth);
c) assessed the claims of the Daughter; and
d) concluded that the Daughter was not a person to whom Australia has protection obligations under the Refugees Convention.
11.The delegate also concluded that, as the Daughter had not been granted a protection visa, the Mother and the Father were not entitled to a protection visa.
12.By letter dated 19 June 1997 from the delegate, the Daughter was informed of the delegate’s decision. In that letter, the delegate stated:
“As you have been refused a Protection Visa, the following members of your family unit who were included in your application but had no claims of their own to be a refugee have also been refused a Protection Visa: [THE MOTHER’S NAME AND THE FATHER’S NAME].”
13.On 23 June 1997, the Daughter applied to the Refugee Review Tribunal (“RRT”) for review of the delegate’s decision. The Mother and the Father were included in the application for review.
14.On 24 June 1997, the RRT wrote to the Daughter acknowledging her application. The letter indicated that the Daughter would be given the opportunity to lodge additional evidence and make submissions in due course, but that if she wished to submit any evidence or make any submissions at this time she may do so. The letter indicated that the daughter should not send any documents or written arguments which have already been given to the RRT or the Department.
15.By letter dated 28 June 1997, the migration agent wrote to the RRT in the following terms:
“Please find enclosed the state on behalf of our client, [THE DAUGHTER] (DOB 19-07-76), which includes her parents [THE FATHER] (DOB 14-04-44) and [THE MOTHER] (01-08-49).
The application was refused on the 19th of June 1997 and the view form lodged on the 23rd of June 1997.
The case officer thought that the applicants parents [sic] could be seen to have their own claims, and invited them on the 1st of May to submit their own claims on form C’s. These did not reach the case officer in time, and so we ask the Tribunal that they now take them into consideration.
Please find herewith, our clients [sic] reasons for disagreeing with the rejection.”
16. The letter dated 28 June 1997 enclosed:
a) a document entitled “STATEMENT OF [THE DAUGHTER] (DOB 19-0797) [sic]” which was signed by all three applicants;
b) a Form 866C on behalf of the Father; and
c) a Form 866C on behalf of the Mother (“Mother’s Form 866C”).
17. On 8 October 1998, the RRT heard the applicant for review.
18.On 20 October 1998, the RRT delivered its decision affirming the delegate’s decision. The RRT heard, and determined, separate claims on behalf of the Daughter, the Father and the Mother. For example, in relation to the Mother, the RRT concluded:
“The Tribunal is not satisfied that [THE MOTHER] has a well founded fear of persecution for any Convention reason should she return to Armenia now or in the reasonably foreseeable future.”
Tribunal’s findings and reasons
The Tribunal made separate findings with respect to all three applicants and set those findings out under separate headings. In each case, the Tribunal accepted published evidence in respect to the conflict between Azerbaijan and Armenia over the disputed territory of Nagorno-Karabakh. One consequence was the destruction of a number of villages and the displacement of people. The Tribunal accepted a large number of displaced people from this conflict (over 300,000) were assisted by the Armenian government with international aid. The Tribunal also accepted that, despite the cease fire in 1984, the war of words between Azerbaijan and Armenia continued and very few people returned to Nagorno-Karabakh.
The Tribunal accepted that the family originally lived in the village of Atabek in Karabakh. The Tribunal further accepted that the family moved to Yerevan to escape the conflict and that they were provided with temporary accommodation by the authorities. The Tribunal formed the view that while there was continued political rhetoric on the part of the general population, which would have made life uncomfortable for the displaced people, those conditions did not amount to persecution. The applicants did not identify any specific claims of suffering at the hands of either the authorities or the general population. This was limited to the husband, who complained of frequent checking of his papers by the military authorities, being detained briefly, and being physically manhandled on some occasions. However, the Tribunal was not satisfied that the applicants had a well-founded fear of persecution by any Convention reason should they be returned to Armenia now or in the reasonably foreseeable future.
Application for review of the Tribunal’s decision
On 7 June 2005, the applicant filed an application in this Court for review under s.39B of the Judiciary Act. On 14 October 2005, she filed an amended application which contained the following grounds:
1.The delegate of the Minister constructively failed to exercise her jurisdiction or acted in excess of her jurisdiction under the Act.
Particulars
i) The delegate purported to make a decision on a Protection visa application made by the Applicant on 25 November 1996, when that application was invalid.
(a) The Applicant was included in Form 866B, lodged with an office of Immigration, on 25 November 1996. However, for her application to be valid, she had to complete Form 866C or Form 866D and give either of those forms to an office of Immigration. Neither Form 866C nor Form 866D was given to an office of Immigration. As such, her application was invalid and the delegate was not permitted to consider and make a decision on her application, other than to deem it invalid: s65 of the Migration Act 1958: see also ss45-47 of the Act and Regulations 2.07(3) and 2.10.
2.The Refugee Review Tribunal constructively failed to exercise its jurisdiction or acted in excess of its jurisdiction under the Act.
Particulars
i) The RRT did not have jurisdiction to affirm the delegate’s decision, as the Protection visa application made by the Applicant on 25 November 1996 was invalid.
ii) The RRT failed to accord the Applicant procedural fairness by:
(a) failing to inform her that it considered that she was a citizen of Armenia.
(b) failing to put to her that it did not consider that her husband was beaten by the military on the street for a non-Convention reason.
(iii) The RRT failed to consider and or make findings on the following claims made by the Applicant, the Applicant’s husband or daughter:
(a) that the Applicant faced persecution because of her husband’s religion, background and having been born in Iran and because of her birth in Azerbaijan.
(b) that the Applicant would be considered an informer and her husband as a spy because of their previous political connections.
(c) that the Applicant and her family had been assaulted, beaten and insulted.
(d) that the Applicant was being pressured by neighbours and ‘all the people’ to return to her home village.
(e) that the Applicant’s husband had been taken away by the military and that the military had asked after her son.
iv) The RRT’s finding that the Applicant’s husband’s beating by the military in Armenia on the street was not for a Convention reason was arbitrary.
v) The RRT failed to ask a question it was required to ask:
(a) why the Applicant’s husband was beaten by the military on the street.
(b) whether the Applicant was a person who was considered to be a citizen of the former Armenian Soviet Socialist Republic permanently residing in Armenia on the day of the adoption of the constitution (on 5 July 1995).
(c) whether the Applicant had otherwise made a declaration to acquire Armenian citizenship.
Submissions and reasons
Both counsel appearing in this matter have analysed the case as having conflicting authorities, namely Minister for Immigration v Li (2000) 103 FCR 486 (“Li”) per Ryan, Sackville and Emmett JJ on one side and SZECD v Minister for Immigration [2006] FCA 31 (“SZECD”) per Bennett J on the other. Mr Foreman for the applicant submits that the conflict should be resolved by preferring the approach in Li. Mr Kennett argues that SZECD discussed conflicting authorities in existence at the time, namely Li on one side and Yilmaz v Minister for Immigration (2000) 100 FCR 495 (“Yilmaz”), Minister for Immigration v Ahmed (2005) 143 FCR 314 (“Ahmed”) and Uddin v Minister for Immigration [2005] FCAFC 218 (“Uddin”) on the other.
Mr Kennett submits that Her Honour decided that the preferable way to resolve the conflicting authorities was by rejecting the approach in Li. Any argument about whether SZECD is correct, whether the weight of authorities supports that decision and whether Her Honour should have been more cautious in rejecting the Full Federal Court in Li, are arguments to be conducted before the Federal Court. Also that the proper course for this Court is to follow SZECD, which is binding on it.
I understand from both counsel that the essential facts in this application are not relevantly in dispute. There is no factual conflict. The matter for this Court is an application for judicial review by the applicant mother (SZGME). On 25 November 1996, the mother, her husband and her daughter lodged a Form 866B with the Department, being an application for a protection visa. In that document the daughter was listed as the first applicant and it was the daughter who made claims on the form. The father and mother were listed as the second and third applicants and, while they all signed the relevant form, they indicated that they did not have claims of their own. Despite a requirement to do so, the mother never provided either a Form 866C or a Form 866D to the Department, which is significant as a matter of construction of the legislation.
The daughter’s Form 866C contained various claims made by her. On 19 June 1997, a delegate of the first respondent determined the daughter’s application for a protection visa. That decision was to refuse the daughter’s application on the basis that she did not make out a Convention ground. As a result of that decision, the delegate determined that the mother and father’s applications for a protection visa had to be refused.
An application for review of the delegate’s decision was made to the Tribunal. Prior to that determination, Form 866C on behalf of the mother and the father, which had previously been requested by the delegate was sent to the Tribunal, having never been sent to the Department. In those forms, the mother and father set out their relevant claims. The Tribunal delivered its decision in which the claims of all three applicants were rejected. Specifically, the mother's and father’s applications were treated on the basis that they in fact had made claims.
Primarily, the mother's argument is that the original application that was made to the Department is invalid because she did not comply with the relevant forms. Therefore, the decision of the delegate is also invalid. The argument formulated by Mr Foreman is that having regard to Li, the proper course for the Tribunal was to set aside the decision on the basis that no valid application had ever been made.
The applicant’s argument is that as she never made a valid application for a protection visa, the Act prohibited the delegate from considering the application. Therefore, the decision of the delegate and the Tribunal should be set aside. Mr Foreman submits that these provisions were considered in Li and Kundu v Minister for Immigration [2000] FCA 560 (“Kundu”) which adopted the construction which he submits should apply here. The Full Federal Court found in that case that there had been a partial completion of a Form 866. Claims were not made to the Department but were made to the Tribunal. As a valid application had not been made, the decision of the Tribunal was set aside.
Mr Foreman referred the Court to reg.2.07(3) of the Migration Regulations 1994 (Cth) (“the Regulations”) which provides:
(3)An applicant must complete an approved form in accordance with any directions on it.
Consequently, once the mother ticked the question on the form which asked, “Do you have claims?” she was obliged to complete it in accordance with its directions. However, the direction that she complete Form 866D was not complied with. Therefore, an invalid application was made: Li. Mr Foreman submits that the only way in which this visa in question can be obtained is for it to be made on Form 866. Compliance or substantial compliance with statutory requirements for an application for a protection visa is necessary for the validity of that application.
An application in the required manner is an essential precondition to the Minister or a delegate exercising the power to consider and grant a visa. The Tribunal cannot make an application valid if the relevant material was not also provided to the Department.
Mr Foreman then discussed Li, which referred to ss.45, 46, 47, 65 and 69 of the Act and reg.2.07 of the Regulations. Their Honours concluded that not completing the relevant section of a form is a breach of the Regulations, which causes the application to be invalid. The proper course in the circumstances is for the review Tribunal’s decision to be set aside. Their Honours stated at [61], [75] and [77]:
61.It was common ground in the appeals that neither of the "applications" lodged with the Department had been completed in accordance with the directions stated on Form 866. It follows that neither respondent complied with reg2.07(3) and the applications, as originally submitted, were not valid applications: s46(1)(b). The Minister was therefore precluded from considering each of the "applications" for a protection visa: s47(3).
75. Reg2.10(1)(b), objectively viewed, prescribes the way in which an application for a visa is to be made, namely at an office of Immigration. The regulation applies in specified circumstances, namely where an application is to be made in Australia. It is therefore a regulation that prescribes the way for making an application in specified circumstances within the meaning of s45(2)(a) of the Migration Act. If an application does not comply with reg2.10(1)(b), the consequence is that the purported application is invalid: s46(1)(b).
77.…There could be neither a valid application, nor the making of an application, until the information necessary to complete the Form 866 had been supplied. The effect of reg2.10(1)(b) is that the additional information had to be supplied at an office of Immigration, not to the RRT. The same analysis applies in Kundu.
Mr Foreman submits that the relevant material as described above was not provided at any stage to the Department. That being Form 866D, which the applicant was required to fill out on the basis of her earlier Form 866B. Although there was some material provided to the Tribunal in Form 866C by the applicant, it is submitted that the provision of that material to the Tribunal does not remedy what is an otherwise invalid application: Li; Kundu.
Mr Foreman indicated that he wished to raise a number of issues in respect of SZECD, which was relied upon by the respondents. Mr Foreman submits that in order to understand the reasoning of Bennett J in SZECD, it is necessary to consider Yilmaz which came before Li. In Yilmaz, an application for a protection visa was made and the relevant material required by the Regulations was not submitted to the Department as at the time of the delegate’s decision. However, information was subsequently provided to the Department. Justice Gyles, with whom Spender J agreed, held that the otherwise invalid application had been rendered valid by the provision of the material to the Department.
Mr Foreman submits that whatever comments were made or whatever inferences one can draw from the decision of Gyles J in Yilmaz as to the different situations where material is provided to the Tribunal only, those comments are obiter dicta. It is submitted that the binding decision is the subsequent decision in Li, which specifically considered Yilmaz and distinguished it on the basis of receipt of the information.
Mr Foreman argues that the first error in SZECD is that Her Honour did not apply the correct test in whether or not to depart from the previous decision of the Full Federal Court, see Transurban City Link Ltd v Allan (1999) 95 FCR 553 at [29]:
A differently constituted Full Court would, of course, decline to follow the decision of another Full Court if it concluded that the previous decision was clearly erroneous. It would be wrong to do this merely because the matter was one on which minds might differ: cf Magman International v Westpac (1991) 32 FCR 1 at 20 per Hill J.
Mr Foreman submits that SZECD makes no such conclusion. Her Honour simply says at [26]:
The weight of authority supports the approach of Yilmaz, that is that missing information can complete an invalid application when submitted to the Department or Tribunal…
Mr Foreman submits that there is no conclusion that Li was clearly erroneous or plainly wrong. Mr Foreman respectfully submits that Her Honour has not applied the correct test when departing from a previous Full Federal Court decision. Her Honour did not consider the legislative provisions but simply discussed previous decisions, in particular, the decision in Yilmaz.
Mr Foreman submits that Her Honour purported to rely on implied obiter dicta by Gyles J in Yilmaz in respect of a matter not before His Honour, and in the face of a subsequent Full Court decision precisely on point. It is submitted that Gyles J did not distinguish between material provided to the Tribunal or provided to the Department. Mr Foreman submits that Yilmaz, Ahmed, Uddin,Phanouvongv Minister for Immigration [1999] FCA 1489 and Zubair v Minister for Immigration (2004) 139 FCR 344 (“Zubair”), leads to the conclusion that this Court should follow Li rather than SZECD.
Mr Kennett for the respondent acknowledged that the issue between the parties is when material submitted to the Department is insufficient, but is later submitted correctly to the Tribunal. Mr Kennett submits that the most recent decision on that issue is SZECD.
In SZECD, the applicant was claimed that the first Tribunal decision had been made without any authority. Mr Gormly, appearing for the applicant in that case, submitted that s.416 of the Act did not apply to the first Tribunal decision because that decision was made in respect of an invalid application. Accordingly, the first Tribunal had no jurisdiction to review or determine the delegate’s decision in respect of that invalid application. Mr Gormly argued that the invalidity was not cured by the appellant sending the promised statutory declaration and materials to the first Tribunal: Li.
Mr Johnson, who appeared for the Minister in SZECD, put a contrary submission based on a series of cases including Yilmaz. Mr Johnson raised the question whether Li, which was directly on point, ought to be followed. Justice Bennett considered Yilmaz and noted the comments of Gyles J that the application could be completed later and there was no reason why this should not take place in the course of the Tribunal review. Her Honour then referred to Li and discussed the way in which the Full Federal Court dealt with and distinguished Yilmaz. Her Honour noted that the High Court, in distinguishing Yilmaz, did not refer to the reasoning of His Honour Gyles J. Her Honour then considered Phanouvong v Minister for Immigration and noted a deficiency in Li not coming to terms with the decision of Gyles J in Yilmaz.
Her Honour noted that the respondent also relied on Zubair, which followed Yilmaz, together with Ahmed and Uddin. That group of cases is authority for the proposition that a decision of the delegate which is invalid due to failure to comply with the requirements of the Act, is a decision capable of being reviewed by the Tribunal. Ahmed and Zubair endorsed the principles in Collector of Customs (NSW) v Brian Laylor Automotive Pty Ltd (1979) 41 FLR 338 (“Brian Laylor”).
Mr Kennett submits that the delegate’s decision in Ahmed was flawed for want of compliance and for not giving notice to an applicant. As the notice of intention to cancel the applicant’s visa was not in the proper form, the process of cancellation had never properly begun. Nevertheless, the Full Court applied principles from Brian Laylor and said that once a decision has been made and the applicant seeks review of that decision by the Tribunal, the Tribunal has jurisdiction to deal with it.
Mr Kennett contends that in light of Ahmed and Uddin (both of which post-date Yilmaz and Li), Li appears anomalous because of its view that a proceeding without a valid visa application cannot be fixed by an application to the Tribunal.
Mr Kennett submits that his primary submission is that this Court is bound to follow SZECD. I acknowledge the detailed arguments placed before this Court by both Mr Foreman and Mr Kennett. However, SZECD remains undisturbed and this Court is bound by that authority.
The applicant identified five claims which, she contends, the Tribunal failed to consider. All are said to have been raised in the statement signed by her, the father and the daughter, which was submitted to the Tribunal and is hereafter referred to as “the joint statement”.(CB 81) The first claim relates to the father’s background and birth in Azerbaijan. The joint statement did not claim that the applicant would be persecuted because of her husband’s religion, background or place of birth. It noted that the family was “of mixed races and ethnic backgrounds” and that the father had been born in Iran.(CB 80-81) The only basis that it identified as to why the mother might be persecuted was the daughter’s statement that “Armenian people will most likely consider my mum an informer because that is their way”.(CB 81) This statement did not assist the Tribunal in identifying a Convention reason for harm that the applicant might suffer.
The applicant’s own detailed statements, in so far as they related to Armenia (which the Tribunal took to be her country of citizenship), confined itself to claims that she would be repatriated to Azerbaijan (CB 100, 102, 104) or persecuted as “not native born”.(CB 101, 102) The ambiguous remarks in the joint statement must, in that context, be read as an aspect of the claim that the applicant would be treated with hostility by people from Armenia because she was an outsider. That claim was squarely dealt with by the Tribunal in its “Findings and Reasons”:
…The Tribunal accepts that while there was rhetoric from the Armenian Government about reclaiming the land lost to Azerbaijan in Karabakh there was no attempt on the part of the Armenian Government to forcibly return the displaced people to that region. While this rhetoric, and hostility on the part of the general population, it is accepted, would have made life uncomfortable, the Tribunal finds that it does not amount to persecution.(CB 128-129)
The Tribunal noted that the applicant made no claim about any specific harm she suffered at the hands of either the authorities or the general population of Armenia.
The second claim relates to “previous political connections”. The joint statement asserted that the father “would probably be considered a spy or informer because of his previous political connection”.(CB 81) No such reasoning was attached to any harm the applicant herself might suffer, and her “political connections” were not identified. As noted in the first claim, the applicant based her fears of persecution in Armenia firmly on the policy of repatriation and the hostility she faced as a displaced person.
The third claim relates to being “assaulted”.(CB 80) The claim that members of the family had been “assaulted” was not an integer of the applicant’s claims: SCAT v Minister for Immigration (2003) 76 ALD 625 at [29]. It was not, in itself, “a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason”: Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [46]. Rather, it was a piece of evidence which, if accepted, added weight to the claim that the applicant had a well-founded fear.
The fourth claim relates to “pressure to return to home village”. This claim was not made in the joint statement, although a claim of this kind was made by the applicant in her own statement. It was clearly an aspect of the “hostility” from people in Armenia which, the Tribunal accepted, the applicant might face. The Tribunal dealt with this claim with the following observation:
…The Tribunal accepts that there may well have been hostility on the part of resident Yerevan population to the influx of displaced persons.(CB 128)
The fifth point relates to the father being “taken away by military”. This is also not mentioned at all in the joint statement. The relevant assertion was made by the applicant in the course of her evidence at the hearing. It was put to the applicant as part of the “pressure” that led her to leave Armenia. Like the claim of being assaulted, this was part of the evidence about what the applicant had experienced which, if accepted, added weight to her claims. It did not identify a distinct basis for a fear of persecution and was therefore not a “claim” which required separate attention from the Tribunal.
Under the applicant’s second ground, it is claimed that the Tribunal failed to accord her procedural fairness. Mr Kennett, in his written submissions, submits that the Tribunal did not make any express finding in dealing with the applicant’s claims as to why her husband had been beaten. However, it did conclude, in dealing with the father’s claims, that any rough treatment he had suffered was not “persecution for his political beliefs, ethnicity or for any other Convention reason”.(CB 129) It is submitted that if the Tribunal’s conclusion had any significance for the applicant’s case, it was that the evidence that her husband had been beaten, while it may be true, did not add anything to her claims. This was because the beating was not related to the reason why she said she was being persecuted. Mr Kennett argues that the principles of procedural fairness do not require an administrative decision-maker to expose its thought processes to an applicant: Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576. Nor do they require the decision-maker to the applicant feedback on the likely success of his or her claims: Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57 at [31]. Similarly, those principles do not require a decision-maker to explain to an applicant why it does not regard some aspects of his or her evidence as irrelevant or not probative.
The other aspect of the claim that the Tribunal failed to accord the applicant procedural fairness relates to the reason why the father may have been beaten. There was no relevant error in the Tribunal’s characterisation of the reasons why the father might have been beaten. Mr Kennett submits that the Tribunal expressly turned its mind to whether the events might have occurred for a Convention reason. It was entitled to take the view that the evidence did not disclose any such reason.
There are two discretionary grounds to be addressed. Mr Kennett submits that the applicant should not be granted relief on the invalid application ground if that were the only ground to succeed. If the invalid application ground was made out, relief should be denied because the position now taken by the applicant is so inconsistent with the position she took in the Tribunal that it amounts to an abuse of the Tribunal and this Court’s process. The applicant attempted to establish she was a refugee and she would have been happy with the Tribunal decision if it was in her favour. Now some years later, she seeks to have this Court grant relief to the effect that the whole process was misconceived, illegal and a nullity. In the circumstances, I do not believe it necessary to make any decision in respect of this issue.
The second discretionary ground relates to the delay in bringing these proceedings. However, this was not pressed because during the substantial part of this delay period the applicant was a member of a class action.
Conclusion
As I have indicated in my reasons, I believe this Court is bound by SZECD and that the matter should not be dispensed with on the basis that the original visa application was invalid and therefore set aside.
I am also satisfied that none of the other grounds of review identified in the amended application filed on 14 October 2005 can be sustained. Consequently, the application for review should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 22 February 2007
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