SZHBW v Minister for Immigration
[2007] FMCA 150
•28 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHBW v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 150 |
| MIGRATION – Whether privative clause decision – depends on whether it is infected with jurisdictional error – if not a privative clause decision the statutory time limit for review does not apply. |
| Migration Act 1958, s.424 |
| S157/2002 211 CLR 476 Gararth v Minister for Immigration and Multicultural and Indigenous Affairs 2006 FCA 316 (applied) Lay Lat v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 151 FCR 214 (applied) |
| Applicant: | SZHBW |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2499 of 2005 |
| Judgment of: | Turner FM |
| Hearing date: | 14 December 2006 |
| Date of Last Submission: | 14 December 2006 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2007 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondents: | Ms. K.C. Morgan |
| Solicitors for the Respondents: | Ms T. Quinn of DLA Phillips Fox |
ORDERS
The application, amended application, and further amended application by the applicant are dismissed.
The applicant is to pay the costs of the first respondent fixed in the amount of $5000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2499 of 2005
| SZHBW |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
An application was filed on 7 September 2005 for review of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant filed an amended application on 10 November 2006 seeking an order to show cause. A further amended application was filed in Court, by leave on 14 December 2006. This also seeks an order to show cause.
Objection by the first respondent
On 12 October 2005 the First Respondent filed a Notice of Objection to Competency, objecting to the jurisdiction of the Court to try this application on the grounds that:
Ground 1
Subsection 477(1A) of the Migration Act 1958 provides that an application for review must be lodged with a Registry of the Court within 28 days of the notification of the decision.
Ground 2
The applicant was notified of the RRT decision by letter dated 28 September 2004 and he filed an application for judicial review of the decision on 7 September 2005, which has not been filed within 28 days of notification of the decision as required by subsection 477 (1A) of the Act.
The first issue to be decided is whether the decision under review is a “privative clause decision”. The test of whether the decision is a privative clause decision within s.474 of the Migration Act 1958 is whether it is free from jurisdictional error. If no jurisdictional error occurred in its making, it is a privative clause decision. If it is a privative clause decision it cannot be challenged (s.474 – inserted 2 October 2001). If it is not a privative clause decision, the statutory time limit for challenging it does not apply: S157/2002 211 CLR 476 at [87], Gararth v Minister for Immigration, Multicultural and Indigenous Affairs 2006 FCA 316 para 61.
The application
This application for review filed on 7 September 2005 sets out two grounds:
A1. “That the Tribunal erred in law or an error in (sic) the face of the record to the facts.”
The particular alleged is:
“The Tribunal’s failure, having a file of country information, in misstating the applicant’s oral and written evidence”.
A2. “That the material shows grounds for a political opinion to be imputed to the applicant, by his persecutors.”
The amended application
The amended application filed on 11 November 2006 sets out three grounds:
B1. Whether the Tribunal’s member erred in failing to put country information at the interview or in writing before the handing down of the decision to the applicant.
The particulars alleged:
The Tribunal member was biased in saying that the applicant had fabricated his claims;
The Tribunal must tell the applicant about her concerns on the country information well before making a decision
The Tribunal must communicate what would be the reason, or part of the reason, for affirming the decision under review (before reaching a decision)
B2. “Whether the Tribunal’s decision lacks procedural fairness by not supplying country information…according to s.424A.”
The particulars alleged:
“that the Tribunal did not inform the applicant of its real reason for affirming the delegate’s decision before handing down its decision, which was not in accordance with the Principal Member Direction of 5 October 2005 (s.424A). The applicant then quoted a passage from the decision where the Tribunal found that the applicant is not a witness of credit and that his key claims were fabricated because his evidence and material was very vague and incorrect (in that it was not supported by independent country information)”.
B3. “Alternatively, the Tribunal member’s failure to consider the relevance of the Refugee Convention in case of ambiguity, vagueness, and or confused (sic) in the applicant’s oral evidence.”
The applicant then alleges he was implicitly intimidated. During the hearing the Court sought clarification of that allegation, and the applicant stated the ground as:
Whether the Tribunal’s decision lacks procedural fairness but (sic) (by) not supplying information about her advice concerning writing to the applicant regarding her remarks made in the interview to the applicant in order to give him an opportunity to comment on it.” (Transcript p.13 line 45).
The Court understands this to be an allegation of a breach of s.424A. The particulars complain that the view that the applicant fabricated his claims, when tested against country information was not put to the applicant.
On 14 December 2006, by leave, the applicant filed in Court a further amended application. The further amended application sets out three grounds:
C1. “Whether the Tribunal member erred in failing to put her concerns regarding her adverse remark in a way of questioning during the interview to the applicant as can raise issue of no credible witness, in order to reject the applicant’s claims.”
The particulars allege bias in the Tribunal by it saying that the applicant fabricated his claims. The applicant states that the Tribunal should have informed him of any adverse concerns before it made its decision. He again alleges a breach of s.424A.
C2. “Whether the Tribunal’s decision lacks procedural fairness by not supplying written information about…adverse concerns…and remarks made in the interview…to give him an opportunity to comment on them before a final decision was made.”
The particulars allege that the Tribunal did not inform him in writing before handing down its decision why it would affirm the decision under review, which was a breach of the Principal Member Direction (sic) and a breach of s.424A.
The applicant repeats his concern, set out in the particulars of ground B2 above, as to the finding that he is not a witness of credit, and that he fabricated his claims.
C3. “Alternatively, the Tribunal member (sic) failure to consider the bias rule.”
The particulars detail how the applicant felt “implicitly intimidated” by the adverse remark, made by the Tribunal member as the applicant was leaving the room, that the “applicant’s claims were a fabrication.” The applicant complains that the statement about fabricating his claims was not put to him during questioning.
Alternatively, the applicant complains that because he was unrepresented at the hearing he could not claim alleged breaches of s.424A. The applicant claims that the Tribunal was bound to apply the policy principles in the Procedure Advice Manual (which states the binding effect of precedents).
The applicant filed an outline of submissions, an affidavit and notice of objection to the respondent’s outline of submissions. The applicant did not add anything of substance to his grounds when making submissions to the Court.
The first respondent filed written submissions and made oral submissions to the court.
Findings of the Court
Ground A1
This alleges that the Tribunal erred by not putting country information to the applicant in the hearing. The Court notes that the applicant gave the Tribunal country information for the purpose of the hearing (CB 43-85). As to that material, there was no breach of natural justice as the applicant had knowledge of that information. Also, that information is covered by the exclusion in s.424A(3)(b) of the Migration Act 1958. As to the other country information, that is covered by the exclusion in s.424A (3)(a).
Section 422B specifies the full extent of the natural justice procedural requirements that apply under the Migration Act 1958. In Lay Lat v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 151 FCR 214, the Full Court held that s.422B eliminates any common law obligation to provide procedural fairness. However, in any event, the Court finds that the applicant has not established a denial of procedural fairness. No breach of s.424A has been established. The Court rejects this ground.
Ground A2
Ground A2 alleges that the material shows grounds for a political opinion to be imputed to the applicant. The Court refers to the findings by the Tribunal that the applicant’s claims about the UP (Patriotic Union) were fabricated (CB 136); and that the applicant “is not a witness of credit” and that “his key claims have been fabricated” (CB 139). Those findings were properly open to the Tribunal and cannot be reviewed. The Court rejects this ground.
Ground B1
Ground B1 is that the Tribunal erred in failing to put country information to the applicant in writing before handing down its decision.
The Court refers to and repeats its reasons in relation to Ground A1. The applicant has alleged bias, but has not shown anything that establishes bias or a basis for perceived bias. The fact that the Tribunal made a comment about the applicant within his hearing, about his credibility and fabrication of claims, does not show bias; it shows nothing more than part of the objective reasoning of the Tribunal in its deliberations which the applicant was aware of. The Court rejects this ground.
Ground B2
Ground B2 is whether the Tribunal’s decision denied procedural fairness by not supplying the country information…according to s.424A. The Court finds that there was no breach s.424A and procedural fairness was accorded. The findings as to credit and fabrication were properly open to the Court. The Court rejects this ground.
Ground B3
Ground B3 is that the Tribunal failed to consider the relevance of the Refugee Convention to where (sic) the applicant’s evidence is confused, ambiguous, or vague. The Court takes this to mean that the Tribunal did not take into account that the applicant was likely to be confused or vague in the hearing before the Tribunal, and therefore it should not have regarded vague and ambiguous responses as showing lack of credibility. The Court finds that the decision shows that the Tribunal analysed the evidence in a thorough and fair way, and that its conclusions were properly open to it. The Court rejects this ground.
The applicant alleges that he was intimidated by a remark made about fabrication. The Court finds that there was no error of law or breach of natural justice in the Tribunal making that remark. In fact, making that remark made the applicant aware that the Tribunal had concerns about his credit and fabrication. He therefore had an opportunity to deal with those issues at the hearing, and apparently failed to do so. The Court finds that no error of law or denial of natural justice has been established, and it rejects this ground.
Ground C1
Ground C1 is that the Tribunal erred by failing to put to the applicant during the interview, that it had concerns about his credibility and fabrication by him. The Court finds that the Tribunal is not required to put to the applicant its objective reasoning in considering a matter. In any event the applicant was alerted to concerns, and apparently failed to address the Tribunal on those concerns when the interview resumed.
The Court finds no error of law or denial of procedural fairness. The applicant alleges that the Tribunal was biased because it said that his claims were fabricated, and he again alleges a breach of s.424A. The Court finds that the making of that statement merely reflected a concern about the credibility of the witness after hearing from him, and does not show bias. No breach of s.424A has been established. The Court rejects this ground.
Ground C2
Ground C2 alleges a breach of procedural fairness by not supplying the applicant with written material about its adverse concerns and remarks, and failing to give him an opportunity to respond.
The Court finds that the concerns and remarks by the Tribunal are not information to which s.424A applies. The Court finds also that the applicant was made aware of the concerns and given an opportunity to respond, and apparently failed to do so. The applicant objects that guidelines in the Principal Members Direction were not followed. The Court finds that they are procedural guidelines only and no breach has been established. The Court rejects this ground.
Ground C3
Ground C3 complains of bias and how the applicant felt intimidated by remarks made by the Tribunal, and that he had no opportunity to respond. The Court rejects these complaints for the reasons set out above and rejects this ground.
The Court therefore finds no error of law or denial of natural justice occurred and rejects all grounds raised by the applicant.
The first respondent refers to a possible ground of challenge not raised by the applicant, being references by the Tribunal to written claims made to the delegate of the Minister and to the contents of the delegate’s decision. The written submissions by the first respondent as to this possible ground are as follows:
Reference to the written claims and the delegate’s decision
20. The Tribunal referred to the written claims made by the applicant on several occasions.
a) in summarising the claims in the protection visa application (CB 133.2-8);
b) in summarising the contents of the statutory declaration (CB 133.8-134.5);
c) in recounting the applicant’s assurance that the content of the claims was true (CB 135.1);
d) in describing the applicant’s claims as vague (CB 139.10);
e) in corroborating the conclusions drawn in relation to the oral evidence and therefore rejecting the applicant’s claim he was confused in his oral evidence (CB 140.5).
21. The applicant also referred to the delegate’s decision; noting that the delegate came to the same conclusion as the Tribunal (CB 140.5).
22. The respondent Minister submits that none of these references by the Tribunal required the applicant to be notified in writing pursuant to section 424A.
23. First, the reason for the Tribunal’s decision was that it did not believe the applicant’s claims. The basis for that was that the Tribunal questioned the applicant at length about his claims and decided that it was not satisfied he was a member of the UP as the applicant’s knowledge of that organisation and recent events affecting the organisation lacked any specificity. The detail at CB 141.1-4 reflects the analysis that the Tribunal embarked on in relation to the oral evidence.
24. Secondly, in relation to the general references to the written claims (CB 139.10; 140.1), at their highest, are merely corroborative of the Tribunal’s own conclusions in relation to the information provided by the applicant at the oral hearing and are not themselves the reason or part of the reason for the Tribunal affirming the delegate’s decision.
25. Thirdly, in relation to the specific reference to the written claims at CB 140.5 as contradicting the applicant’s claim he was confused: the ‘information’ is that the written claims were consistent with the claims made by the applicant orally and therefore inconsistent with the suggestion that the applicant was confused by the questions and thought that the Tribunal was asking the applicant about an alternative claim in relation to his race or ethnicity. That information was not the reason or part of the reason for affirming the decision of the delegate. The reason was because the Tribunal did not believe the applicant’s oral evidence.
26. Fourthly, in relation to the reference to the delegate’s decision (CB 140.5), the Tribunal merely refers to the fact that the delegate came to the same conclusion. It is clearly not the reason or part of the reason the Tribunal had for affirming the delegate’s decision.
27. Therefore the Tribunal did not breach section 424A in referring to the written claims or the delegate’s decision in its decision.
The Court accepts these arguments and finds that there was no breach of s.424A.
The Court finds no error of law or denial of natural justice. There being no jurisdictional error, the decision of the Tribunal is a privative clause decision which is not subject to review (s.474).
The Court finds that the respondent has shown cause why orders for the relief claimed should not be made.
As the decision is not subject to review the question of an extension of time for the making of an application for review is of no relevance, and is dismissed.
Orders
All applications by the applicant in the matter are dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Turner FM.
Associate: Sarah James
Date: 14 February 2007
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