SZHKA v Minister for Immigration
[2007] FMCA 500
•27 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHKA v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 500 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant is a citizen of the People’s Republic of China claiming persecution as a Falun Gong member – where an application for review is remitted to the Refugee Review Tribunal there is not a second review commenced – the existing review has been found by the Court to be incomplete and the Court has directed that it be completed – Tribunal is permitted to rely on evidence given to the previous Tribunal – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.421, 422, 422A, 424A, 425, 430 |
| SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 referred to. SZHXB v Minister for Immigration & Anor [2006] FMCA 1118 followed. SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 followed NBKM & Ors v Minister for Immigration & Anor [2007] FMCA 179 referred to. SZAGF v Minister for Immigration & Anor [2005] FMCA 1448 referred to. SZHQG v Minister for Immigration & Anor [2006] FMCA 1275 referred to. |
| Applicant: | SZHKA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3528 of 2006 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 March 2007 |
| Date of last submission: | 27 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 March 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nair |
| Counsel for the Respondent: | Ms Nolan |
| Solicitors for the Respondent: | DLA Phillips Fox |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3528 of 2006
| SZHKA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 11th October and handed down on 31st October 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a protection visa.
Background
The Applicant is a citizen of the People's Republic of China who arrived in Australia on 11th December 2004 and applied for a Protection (Class XA) visa on 15th December 2004. A delegate of the Minister refused the application on 24th March 2005. The Applicant sought a review of that decision by the Refugee Review Tribunal by means of an application lodged on 27th April 2005. The Applicant attended a hearing on 10th August in that year where he gave evidence. The Tribunal affirmed the delegate's decision, so the Applicant sought judicial review.
On 8th August 2006 orders were made by consent in the Federal Magistrates Court remitting the application to the Tribunal for determination according to law. I note that a copy of the consent orders is not to be found in the Court Book. In my view, in matters of this nature it would be preferable if the Court Book would include a copy of the Court orders, although I am not satisfied that anything turns on that point in this particular matter.
The Tribunal wrote to the Applicant on 30th August 2006 inviting him to provide any documents or written arguments that he wished the Tribunal to consider which he had not already provided to the Tribunal. The letter went on to say:
In the meantime, your case will be allocated to a Member of the Tribunal who has not previously made a decision in relation to your case. The Member may do one or more of the following:
· seek further information,
· seek your comments on particular information,
· invite you to a hearing
before making a decision on your case.
The Tribunal wrote to the Applicant on 6th , 13th and 15th September 2006 in a letter informing him that the Tribunal had information that would, subject to any comments he made, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The letter set out particulars of information and asked the Applicant to provide comments in writing by 29th September 2006. The letter contained this warning:
If you do not give comments by 29 September 2006, the Tribunal may make a decision on the review of your case without further notice.
The letter dated 15th September 2006 was sent to the Applicant's new address because the Applicant had provided the Tribunal with his change of contact details and that letter asked the Applicant to provide his comments by 10th October 2006. Apart from the address and the date, the letter of 15th September is identical to the earlier letters. A copy of that letter can be found on pages 107 to 108 of the Court Book. On 10th October the Applicant wrote to the Tribunal a two-page letter in English making comments about the information.
The Tribunal signed its decision on 11th October 2006 and handed that decision down on 31st October. The Tribunal found that the Applicant did not have a well-founded fear of persecution for a Convention reason in China or by reason of any practice of Falun Gong and concluded that the Applicant was not a person to whom Australia owed protection obligations. Accordingly, the Tribunal affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
The application for judicial review
The Applicant has sought judicial review of that decision. In an amended application he seeks orders in the nature of certiorari quashing the Tribunal decision, prohibition against the Minister, mandamus compelling the Second Respondent, the Tribunal, to rehear the matter, and an order that the matter be remitted to the Tribunal for consideration in accordance with orders and decisions of this Court.
I would comment that, in my view, an order in the nature of mandamus does not require the Tribunal to rehear the application. An order in the nature of mandamus should require the Tribunal to determine the application according to law.
The application contains three grounds. However, the Applicant's Counsel, Mr Nair, has informed the Court that grounds 2 and 3 would not be pressed. Accordingly, I will not consider them. The ground that is pressed says this:
I was not invited for a hearing at RRT after my case was remitted back to RRT for reconsideration. I was not given an opportunity to explain my case.
That is the issue that needs to be decided. It is the Applicant's contention the Tribunal failed to comply with s.425 of the Migration Act by not inviting the Applicant to attend a hearing. The submission goes that, in accordance with the decision of the High Court of Australia in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [27]-[43], the statutory scheme imposed by the Migration Act mandated a requirement to invite the Applicant to a hearing. Counsel for the Applicant submits that it is clear that the statutory obligation on the Tribunal to invite the Applicant to a hearing cannot be satisfied by the Tribunal relying on the fact that the Applicant had previously appeared before the Tribunal differently constituted whose purported decision was then set aside.
It is the Applicant's contention that the Tribunal failed to invite him pursuant to s.425(1) of the Migration Act to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
For the Respondent Minister Ms Nolan of Counsel submitted that the Tribunal was entitled to proceed to decide the matter without inviting the Applicant to a further hearing. The Tribunal as previously constituted had invited the Applicant to a hearing which he had attended. Section 425 of the Act requires that the Tribunal invite the Applicant to a hearing. This is qualified by the decision in SZBEL to include the requirement that the Applicant be made aware of the issues that the Tribunal considers to arise on review. Ms Nolan submitted that those issues appeared to be the same for the reconstituted Tribunal as for the Tribunal previously constituted.
In addition, and importantly in my view, the Applicant was put on notice of the issues in respect of his claims by the letter under the provisions of s.424A of the Migration Act that was sent to the Applicant. For the Respondent Ms Nolan relies on the decision of my brother Nicholls FM in SZHXB v Minister for Immigration & Anor [2006] FMCA 1118 where his Honour relied on the decision of the Full Court of the Federal Court in SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107, particularly at [39]. In SZHXB at [20] and [21] Nicholls FM said:
The issue addressed by Mr. Archibald now is essentially the effect on the conduct of a review before the Tribunal, of orders made by a Court in remitting a matter to the Tribunal. Further, whether such orders then lead to a "different" Tribunal being constituted, (particularly in the context of s.421 of the Act) and as such whether the result is essentially that a "separate review" is to be conducted with the effect that the "second" Tribunal was not entitled to simply rely on what had occurred before the first Tribunal.
This issue, albeit in a context arising from s.424A, was considered by the Full Court in SZEPZ, a judgment handed down after the hearing of the case before me. I note that Mr Archibald appeared for the appellant in that case, also. While the ultimate question before the Federal Court in that case was whether the second decision made was infected with jurisdictional error because of a failure to comply with s.424A, the Court in looking at the appellant's argument said at [37]:
The appellant contends that, when s.424A refers to the Tribunal giving information, it must be construed as referring to the member by whom the Tribunal is constituted for the purpose of conducting the particular review. He says that, since, following the Consent Orders, a second review was commenced by the Tribunal, constituted by a different member, the information must be given by that member. He argued that it is not sufficient that the information had already been given to the appellant.
His Honour went on to consider the decision of the Full Court in SZEPZ and relied particularly on their Honours' reasoning at [39] where their Honours said:
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.
In SZHXB Nicholls FM in effect found that where an application for review is remitted by the Court to the Tribunal there is not a second review commenced. Rather, it is the existing review that the Court has found to be incomplete and the Court has therefore directed that the review be completed. The decision of course in SZHXB is not binding upon this Court, but the principle of judicial comity requires that I should follow it unless I am of the view that the matter was wrongly decided. I am not of the view that SZHXB was wrongly decided. Quite the reverse in fact, in my view, with the very greatest of respect, SZHXB was correctly decided and the application by his Honour of the reasoning of the Full Court of the Federal Court in SZEPZ, which is of course binding upon me, was a correct application of the relevant law.
In SZEPZ their Honours set out in some detail the legislative scheme and that exposition of the law can be found at [7] through to [16]. At [11] their Honours say:
By s.421(1), the Tribunal is to be constituted, for the purposes of a particular review, by a single member. The Principal Member is to give a written direction about who is to constitute the Tribunal for the purposes of a particular review. Sections 422 and 422A deal with reconstitution of the Tribunal in particular circumstances.
The point of that is that the review of the decision of the delegate is one review notwithstanding the fact that the Tribunal has been constituted by different members.
It was put to me by Mr Nair of Counsel that the decision in SZHXB should be distinguished on its facts. With respect, I disagree. In any event, in an earlier decision of mine, NBKM & Ors v Minister for Immigration & Anor [2007] FMCA 179 I considered this question in a case that is on all fours with the matter before me. The applicant in NBKM had submitted that the Tribunal had not in a similar circumstance complied with its obligations under sub-section 425(1) of the Migration Act to invite him to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. In NBKM at [33] I referred to the decision of the Full Court of the Federal Court in SZEPZ at [39] and held at [41] that there was no obligation to hold a second hearing and applied the decision in SZEPZ. At [43] to [46] I made these comments:
43. The contention by the Applicants that the Tribunal was under the obligation to hold a second hearing is misconceived. The Tribunal had held a hearing. The Tribunal was entitled to take into account information of claims that had been made to the earlier Tribunal at the hearing. The Migration Act and the Migration Regulations do not require that the Tribunal, in the decision under review before me, should have treated the hearing before the earlier Tribunal as if it had never existed.
44. When the Court made orders by consent setting aside the decision of the Tribunal, it was the decision that was set aside. There was no finding that the hearing itself was in some way invalid, or that there was some failure of a procedural nature in the hearing.
45. It was not the hearing that was set aside, and the Tribunal had no obligation to regard the evidence before the Tribunal hearing as if he had not been given. It was the decision that was set aside, and in the Court remitted the Applicant's application to the Tribunal for re-determination.
46. The Court did not order a re-hearing, even if it had the power to do so. What the Tribunal did was consider the evidence given to the Tribunal at the first hearing.
(See also SZAGF v Minister for Immigration & Anor [2005] FMCA 1448 and SZHQG v Minister for Immigration & Anor [2006] FMCA 1275).
In my view, the law is clear and the Full Court has made it quite clear in SZEPZ that the review is one review and until it has been completed it remains the one review, notwithstanding the fact that the Tribunal at different times is constituted by another Tribunal Member. There is no second review.
It must follow then that the Tribunal did not fall into error by breaching s.425 of the Migration Act. The Tribunal in its letter under s.424A to the Applicant did not inform the Applicant that there would be another hearing. It merely told the Applicant that a further hearing was something that the Member constituting the Tribunal may decide to do. The warning in the s.424A letter that if comments were not made by the deadline, initially 29th September, then later 10th October, that the Tribunal would or could proceed to decide the review without further reference did not indicate whether or not a hearing would take place. All it did was inform the Applicant that the Tribunal would decide the matter on the material before it after a particular date whether or not the Applicant had provided comments in reply to the matters raised in the s.424A letter.
In my view, there is no jurisdictional error. There is no breach of s.425. The decision is a privative clause decision as defined by s.474 of the Migration Act and it is not therefore subject to orders in the nature of certiorari, prohibition or mandamus. It follows that the application will be dismissed. I note that I have already made an order amending the title of the First Respondent to Minister for Immigration & Citizenship. As I propose to make an order dismissing the application, it remains to consider the question of costs.
There is an application for costs on behalf of the First Respondent Minister. The Applicant seeks a waiver of any costs order, or perhaps he seeks for an order that the parties pay their own costs or that there should be no order for costs. I am not of that view. In my view, this is an appropriate matter for a costs order. The amount of $4,000.00, which is sought, is well within the scale provided by the Federal Magistrates Court Rules.
This is a matter that was an appropriate matter for Counsel to be briefed on both sides and I am grateful to Counsel for their assistance. I propose to order that the Applicant is to pay the First Respondent's costs fixed in the sum of $4,000.00. I will order a transcript of my reasons for this decision. I will remove the application from the list of cases awaiting finalisation.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 10 April 2007
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