SZKJI v Minister for Immigration
[2009] FMCA 1252
•17 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKJI v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1252 |
| MIGRATION – Visa – Protection (Class XA) visa – review of Refugee Review Tribunal decision – citizen of China claiming fear of persecution for reason of political opinion – credibility – apprehended bias – merits review – whether Tribunal breached Migration Act 1958 (Cth) s.424B – whether technical breach – where Tribunal did not give applicant the prescribed period of notice to attend an interview – whether denial of natural justice – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424A, 434B, 430, 430B, 441C, 476 Migration Regulations 1994 (Cth), reg.4.35A |
| SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 SZKJI v Minister for Immigration & Anor [2007] FMCA 1998 SZKJI v Minister for Immigration and Citizenship [2008] FCA 1193 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; 75 ALJR 679; [2001] HCA 17 SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 Re Minister for Immigration and Multicultural Affairs: Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 Minister for Immigration and Citizenship v SZIZO (2009) 110 ALD 470; [2009] HCA 37 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; 75 ALJR 982; [2001] HCA 28 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZKJI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2140 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 7 December 2009 |
| Date of Last Submission: | 7 December 2009 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2009 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the Respondents: | Ms Clegg |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4900.00 and I allow 4 months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2140 of 2009
| SZKJI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal made on 5th August 2009, affirming a decision not to grant the applicant a Protection (Class XA) visa. The applicant, a citizen of China, asks the Court to make:
a)A declaration that the decision is invalid and contrary to law;
b)An order in the nature of certiorari quashing the decision;
c)An order in the nature of mandamus remitting the matter to a “differently constituted” Tribunal to be determined in accordance with law; and
d)An order for costs.
The first point to be made is that the application for an order in the nature of certiorari refers to the “the decisions and each of them”. There is only one decision under review, that of the Refugee Review Tribunal. The Court is not reviewing the delegate’s decision; it has no power to do so (s.476(2)).
Second, the application claims that the date of the decision is “06/08/09”. Whilst it was once the case that s.430B(4) of the Act provided that the date of the decision was the date on which the decision was handed down, that section has since been repealed. Subsection 430(2) provides:
A decision on a review (other than an oral decision) is taken to have been made on the date of the written statement.
The date on the Tribunal Decision Record is 5 August 2009.[1] That is the date of the decision.
[1] See Court Book at page 132
The next matter to be dealt with is that the application for an order in the nature of mandamus seeks an order that “the matter be remitted to a differently constituted Tribunal”. The Full Court of the Federal Court has held in SZEPZ v Minister for Immigration & Multicultural Affairs[2] that:
It is by no means clear that the Federal Magistrates Court had power or jurisdiction to direct that the Tribunal be constituted differently for the purpose of reconsidering the appellant’s application for review of the delegate’s decision.[3]
[2] [2006] FCAFC 107
[3] [2006] FCAFC 107 at [30]
Consequently, the Court will not make an order in the terms requested by the applicant, even if persuaded that the Tribunal decision should be set aside because of jurisdictional error.
Background
The applicant is a citizen of the People’s Republic of China, who arrived in Australia on 1st March 2006. On 7th April 2006 he applied for a Protection (Class XA) visa. In a statutory declaration submitted with his application, the applicant claimed to have become the target of the PRC authorities for his political activities and views after the Tiananmen Square massacre in 1989. He claimed that in 2005 and 2006 he organised peaceful protests by local farmers against the activities of corrupt officials:
As a result, I was arrested by the PSB and detained for about 2 weeks from 3 February to 17 February 2006; and I was denounced to organise anti-government protests; and I was physically and mentally mistreated and tortured in the detention centre; and I have permanently been dismissed by the CCP since then.
On 17 February 2006, I was released on bail; and I have been required to report to the local police station once a week; and I have been warned not to have any anti-government movement again.[4]
[4] Court Book 28
A delegate of the Minister for Immigration and Citizenship refused the application for a protection visa on 1st July 2006. In the Protection (Class XA) visa decision record, the delegate made a number of findings adverse to the applicant’s credibility:
The applicant has made general and unsubstantiated claims relating to his activities and circumstances in China.[5]
…However, I find it difficult to accept that the applicant was struggling to provide for his family but was able to afford, and be willing to pay for, a trip to Singapore in 2002 and possibly another trip to Malaysia in 2003…
Consequently, I find that the applicant’s claims relating to his arrest and subsequent circumstances because of his political activities lack credibility…
Consequently, I am not satisfied that the applicant had a prominent role in any of the farmer protests…
Consequently, I find no evidence to indicate the applicant held a genuine and significant fear for his family members’ safety at the time he departed China.[6]
[5] Court Book 38
[6] Court Book 39
The delegate went on to find:
Moreover, I find no evidence to indicate the applicant participated in political activities at a level which attracted the significant adverse interest of the Chinese authorities or that he held a significant fear of serious harm by the authorities at the time…
Consequently, I find that the applicant does not face a real chance of harm as a consequence of his political opinion relating to the events of the 1989 pro-democracy movement in China…
Consequently, I find the applicant’s claims relating to his participation in the farmer protests and subsequent harm including his arrest, detention and torture by the Chinese authorities lack veracity.[7]
[7] Court Book 40
After his application for a protection visa was refused, the applicant applied to the Refugee Review Tribunal for review of the delegate’s decision.
Application to the Refugee Review Tribunal
On 2nd August 2006 the Sydney Registry of the Tribunal received the applicant’s application for review. He named his migration agent as his adviser to act for him. On 22nd August 2006 the Tribunal invited the applicant to attend a hearing, which was scheduled to take place on 22nd September 2006. He provided to the Tribunal a copy of a document with an English translation, being a decision of the Chinese Communist Party Committee Fuqing City Gangtou Town to expel the applicant permanently from the Party.[8]
[8] Court Book 52
The applicant attended the hearing on 22nd September 2006 and gave evidence with the assistance of an interpreter in the Mandarin language.
After the hearing, on 20th November 2006, the Tribunal wrote to the applicant and invited him to comment on certain 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 told the applicant that the information was:
You failed to disclose to the Department when you made the application for a tourist visa to come to Australia that you had previously made three unsuccessful attempts to obtain a visa to Australia between 2002 and 2005.[9]
[9] Court Book 56
The Tribunal’s letter, written to comply with s.424A of the Migration Act, asked the applicant to provide his comments by 4th December 2006.
The applicant’s migration agent forwarded a statutory declaration to the Tribunal in reply to that letter on 4th December 2006. In the statutory declaration the applicant claimed that his sister had made arrangements to obtain the visa for him. He declared:
However, my application for a visitor visa was previously returned by Australian Consulate General in Guangzhou for three times; and I really did not know exact reasons but though that my visa application might need more supporting documents; and that was main reason why I had submitted my application again and again. Finally my application for a visitor visa was successful.
But in my mind, I thought that I had never previously attempted to seek any other types of visa except the current visitor visa; which led me to fail to describe it clearly in my primary application. I am very sorry for my mistake.[10]
[10] Court Book at 59
For reasons that are not clear, the Tribunal allocated this review to another Tribunal Member. On 29th December 2006 the Tribunal wrote another s.424A letter to the applicant, seeking his comments on certain information by 12th January 2007.[11]
[11] Court Book 61
On 15th January 2007 the applicant’s migration agent provided to the Tribunal a further statutory declaration by the applicant.[12]
[12] Court Book 69
The Tribunal handed down its decision on 8th February 2007, affirming the decision not to grant the applicant a Protection (Class XA) visa.[13]
[13] Court Book 82
The applicant sought judicial review of that decision from this Court and on 26th November 2007 the application was dismissed (SZKJI v Minister for Immigration & Anor[14]).
[14] [2007] FMCA 1998
The applicant appealed against that decision and on 12th August 2008 Gyles J directed that the appeal proceed before a Full Court (SZKJI v Minister for Immigration and Citizenship[15]). However, on
6th November 2008 Gray J made orders by consent allowing the appeal and issuing writs of certiorari and mandamus directed to the Tribunal.[16]
[15] [2008] FCA 1193
[16] Court Book 93
On 23rd January 2009 the Tribunal invited the applicant to attend a hearing that was scheduled to take place on 2nd March 2009. The applicant attended the hearing and gave evidence with the assistance of an interpreter in the Mandarin language. His sister also attended and gave evidence. He produced his passport issued by the Ministry of Foreign Affairs of the People’s Republic of China.
The Tribunal invited the applicant to attend a further hearing on 29th May 2009.
On 20th May 2009, the Tribunal wrote to the applicant under the provisions of s.424A of the Migration Act, inviting him to comment on information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review. The letter invited the applicant to give his comments at an interview on the day of the hearing, saying:
On 14 May 2009 the Tribunal sent you a separate letter inviting you to a hearing on 29 May 2009. The interview is scheduled to take place at the beginning of the hearing.[17]
[17] Court Book 122
The applicant attended the hearing, and the interview before the hearing, and gave evidence with the assistance of a Mandarin interpreter.
After the hearing, the applicant forwarded a letter to the Tribunal on 12th June 2009. The applicant had asked for a copy of the recording of the Tribunal hearing and also for a period of two weeks to submit further information.[18] In that letter the applicant spoke highly of the Australian legal system and referred to a report from Amnesty International about detention and torture in China.[19]
[18] Court Book 162 at paragraph [111] of the Tribunal Decision Record
[19] Court Book 126-127
The Tribunal made its decision on 5th August 2009, affirming the delegate’s decision not to grant the applicant a Protection (Class XA) visa.
The Refugee Review Tribunal Decision
The Tribunal, in its Decision Record, set out the applicant’s claims and evidence under the following headings:
· Visitor visa applications
· Protection visa application
· Evidence given at the hearing on 22 September 2006
· Letter of 20 November 2006
· Comments provided by applicant
· Further letter and comments
· Evidence given at the hearing on 2 March 2009
· Section 424A letter of 20 May 2009
· Evidence given at the hearing on 29 May 2009
· Further Statement
The Tribunal was satisfied that the applicant was a citizen of the People’s Republic of China, based on his passport, which he had produced at the hearing.
However, the Tribunal was not satisfied that the applicant was a truthful witness. It stated:
The Tribunal does not accept that the applicant has presented a truthful account of his circumstances and activities in his home country to either the Department or the Tribunal.[20]
[20] Court Book 164 at [114]
The Tribunal gave a brief summary of the applicant’s claims and then stated:
However, the Tribunal is not satisfied that the applicant is a witness of truth and is of the view that he has not given a truthful account of his past experiences in China. There are significant inconsistencies in his evidence and he has either not explained these inconsistencies or his explanations are not credible.[21]
[21] Ibid at [118]
The Tribunal set out, in paragraphs [118] to [130], the reasons why it did not accept that he was a truthful witness. Apart from the inconsistencies in the applicant’s account of his circumstances, the Tribunal drew adverse conclusions from the applicant’s history of applications for a visitor visa to Australia, stating at [123]:
The applicant has admitted that the 4 visitor visa applications contain false, incorrect and inconsistent evidence. The applicant’s explanation is that they were prepared by an agent his sister engaged for the purpose. He has said he was unaware of the content. The applicant’s sister has also said she was not aware of the information the agent put on these forms. In the Tribunal’s view the content of these visitor visa applications demonstrates preparedness for the applicant to provide false, incorrect and inconsistence evidence to the Department over a significant period leading the Tribunal to doubt that the applicant is a witness of truth.[22]
[22] Court Book 166 at [123]
The Tribunal found that the applicant had given inconsistent evidence about his employment history and his circumstances in the visitor visa applications, the application for the protection visa and his evidence to the Tribunal. Accordingly, the Tribunal found:
Viewed cumulatively, for the reasons set out above, the Tribunal finds that the applicant is not a witness of truth and as such the Tribunal is of the view that the applicant has not given a truthful account of his past experiences in China.[23]
[23] Court Book 166-167 at [131]
After this comprehensive adverse finding about the applicant’s credibility, the Tribunal was not satisfied that the applicant had a well founded fear of persecution on return to China by reason of his:
a)Political opinion;
b)Imputed political opinion;
c)Membership of a particular social group;
d)Ethnicity; or
e)Any other Convention reason.
The Tribunal was not satisfied that the applicant met the criterion in s.36(2) of the Migration Act for the grant of a protection visa.
Application to the Federal Magistrates Court
The applicant filed an application on 2nd September 2009, seeking the declaration and orders previously referred to.
He set out four grounds of review, all of which claimed a reasonable apprehension of bias.
Ground 1 claims:
The Tribunal failed to look at my claims independently, fairly and properly; and the Tribunal’s finding has included a reasonable apprehension of bias.
The particulars of that claim consist of an attempt to cavil with the Tribunal’s findings at paragraph [120][24] of the decision that owning two properties and purchasing an investment property was inconsistent with his claim to have been dismissed from his employment in 1989 and being unable to earn sufficient income as a farmer from January 1990 to December 2001.
[24] Court Book 165
The applicant’s Ground 2 claims:
The Tribunal failed to consider my evidences thoroughly, fairly and properly; and the Tribunal’s finding has included a reasonable apprehension of bias.
The particulars of that ground consist of a challenge to the Tribunal’s findings at paragraph [121][25] of the decision that the applicant’s failure to apply for a visitor visa for more than 12 years after he was dismissed from his employment was inconsistent with his claimed circumstances in China. The applicant claims that there is no evidence to show that the Tribunal had considered the evidence he provided on 15th January 2007, which he says explained why he did not apply for a visitor visa for more than 12 years.
[25] Court Book 165
The applicant’s Ground 3 claims:
The Tribunal failed to consider my evidences fairly and properly; and the Tribunal made its finding illogically and unreasonably; and the Tribunal’s finding has included a reasonable apprehension of bias.
The particulars of this ground consist of a challenge to the Tribunal’s finding in paragraph [123] of the decision that because the applicant has admitted that the contents of his visa applications contained false information the applicant and his sister demonstrated a preparedness to provide false information to the Department, leading the Tribunal to doubt the applicant’s credibility. The applicant maintains that her and his sister knew nothing about the contents of the visa applications because they were prepared by an agent.
The applicant’s Ground 4 says:
The Tribunal made a finding based on completely incorrect information or incorrect evidence or the ones which have been completely misstated by the Tribunal; and the Tribunal’s finding has included a reasonable apprehension of bias.
The particulars of this ground consist of a challenge to the Tribunal’s findings in paragraphs [124] to [130] of the Tribunal decision[26]. The applicant states:
Either my sister or I have repeatedly emphasized that these 4 applications for the visitor’s visa have NOT been prepared by us; instead they have been prepared by an agent.
[26] Court Book 166
The applicant’s Submissions
The applicant, in his written submission, acknowledges that a significant reason for the Tribunal’s decision has been the fact that the applicant has previously applied for visitor visas with false, incorrect or inconsistent information. He submits that:
However, the information or claims in relation to the visitor visa applications, obviously and definitely, cannot be regarded as evidence that the information or claims in my protection visa application would be false or incorrect. These are two completely different applications which have been lodged in completely different circumstances and completely different time and completely different places.[27]
[27] Applicant’s Submissions, paragraph 2
He went on to claim that he knew nothing about those applications because they were organised by others and not by him.
The applicant also submitted that the Tribunal had made an incorrect factual finding when it stated that owning two properties and purchasing an investment property were inconsistent with the applicant’s claim to have been dismissed from his employment in 1989. The applicant stated:
As a matter of fact, even if my family had two properties in 1993, it would definitely not be evidence that I had not been dismissed in 1989. It is two completely different matters without any particular connection with each other.[28]
[28] Ibid, paragraph 5
At the hearing, the applicant made oral submissions along the lines of his written submission.
The First Respondent’s Submissions
Ms Clegg, who appeared for the first respondent Minister for Immigration and Citizenship, submitted that the Tribunal decision revealed a thorough exposition of the applicant’s claims. The Tribunal had wholly disbelieved the applicant.
Ms Clegg submitted that the applicant’s four grounds of review all made fundamentally the same complaint about various aspects of the Tribunal’s findings. In particular, she submitted that:
a)By complaining about the Tribunal’s fact finding and reasoning process the applicant merely seeks to re-agitate the merits of his case, but it is well established that mere disagreement, even vehement disagreement, with the Tribunal’s decision or decision-making process will not vitiate the decision for apprehended bias (Minister for Immigration and Multicultural Affairs v Jia Legeng[29]);
b)It is a rare case where bias on the part of the Tribunal will be apparent from the written reasons alone (SBBF v Minister for Immigration and Multicultural and Indigenous Affairs[30] per Tamberlin, Mansfield and Jacobson JJ at [16]);
c)There is nothing illogical or unreasonable about the Tribunal’s findings. It was open to the Tribunal, having alerted the applicant to its concerns about the information in the applications for visitor visas, to factor the information into its considerations and give it the weight it saw fit;
d)If it is suggested that there is a legal consequence of a claim that reasonable is illogical or unreasonable or irrational, it may be necessary to be more precise about the nature and quality of the error (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002[31]); and
e)The applicant has not shown any error or misstatement of the evidence by the Tribunal.
[29] (2001) 205 CLR 507; 75 ALJR 679; [2001] HCA 17
[30] [2002] FCAFC 358
[31] (2003) 198 ALR 59
In her oral submissions, counsel for the Minister very properly drew the Court’s attention to what she described as a technical breach of s.424B of the Migration Act in the Tribunal’s letter to the applicant dated 20 May 2009. In that letter, sent to the applicant after the first hearing, the Tribunal invited the applicant to comment on certain information by means of attending an interview with the Tribunal prior to the second hearing on 29th May 2009, some nine days later. The breach is a breach of s.424B(3), in that the invitation to give comments at an interview does not invite the applicant to do so within the prescribed period. The prescribed period starts when the person receives the invitation and ends 28 days after the invitation is received (Regulation 4.35A(3)). The period given here is significantly less than the prescribed period, so the applicant should have been given until 17th June 2009 to provide comments.
However, Ms Clegg submitted that, the breach was an “SZIZO category” breach, referring to the decision of the High Court in Minister for Immigration and Citizenship v SZIZO[32] at [[32]-[36]. Here, there was no injustice to the applicant, because he had a hearing where the matter was discussed in substantial detail. The Tribunal also provided the applicant with an opportunity to make a written response after the hearing, which he did on 12th June 2009.
[32] (2009) 110 ALD 470; [2009] HCA 37
Accordingly, it was submitted that there was no denial of substantial fairness.
The Applicant’s Submission in Reply
The applicant did not address the s.424B point raised by Ms Clegg of counsel. Instead, he reiterated that the Tribunal Member had doubts about the materials in his protection visa application because the material submitted in respect of his visitor visa applications was false and misleading, but he could not be held responsible for the false and misleading information because he did not prepare those documents. He did, however, prepare his application for a protection visa, in which he spoke about his fear of being persecuted if he were to return to China.
Conclusions
All four of the applicant’s grounds of review complain of a reasonable apprehension of bias, based on his claims that the Tribunal failed to consider his refugee claims “independently, fairly and properly”[33], “thoroughly, fairly and properly”[34], or “fairly and properly”[35], or that the Tribunal made its finding “illogically and unreasonably”[36] or based on “completely incorrect information or incorrect evidence”.[37]
[33] Ground 1
[34] Ground 2
[35] Ground 3
[36] Ground 3
[37] Ground 4
Bias is a serious allegation, involving personal fault on the part of the decision maker, and it must be strictly alleged and strictly proved (SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[38] at per Tamberlin, Mansfield and Jacobson JJ at [43]).
[38] (2002) 194 ALR 749; [2002] FCAFC 361
In SBBF v Minister for Immigration& Multicultural & Indigenous Affairs[39], Tamberlin, Mansfield and Jacobson JJ held:
It is likely to be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision-maker will be apparent to a reference only to the reasons for the decision themselves…[40] (See also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[41] at [44]).
[39] [2002] FCAFC 358
[40] [2002 FCAFC 358 at [16]
[41] supra
Further, errors of fact or law and illogicality will not demonstrate bad faith or bias in the absence of other circumstances which show capriciousness (SBBS at [46]; SBBS[42] at [15]).
[42] Supra
The applicant has not demonstrated anything that would lead a fair-minded lay observer, properly informed as to the nature of the proceedings and the matters in issue, reasonably to apprehend that the Tribunal Member did not bring an impartial mind to the resolution of the question to be decided (Re Refugee Review Tribunal; Ex parte H[43] per Gleeson CJ, Gaudron and Gummow JJ at [27]-[28]).
[43] (2001) 179 ALR 425; 75 ALJR 982; [2001] HCA 28
There is no evidence of apprehended bias.
The applicant’s Ground 1 claims that the Tribunal did not investigate his claims “independently, fairly and properly” because he disagrees with the Tribunal’s finding at paragraph 120 of the decision about his ownership of real estate, including an investment property. The applicant claims that it was his wife and not himself who purchased an investment property and not himself, using money obtained from a relative. Be that as it may, the applicant is seeking to embark on a review of the merits of the Tribunal’s factual finding, which is not permissible on judicial review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang[44] at 272).
[44] (1996) 185 CLR 259
The applicant’s first ground fails.
The applicant’s second ground claims that the Tribunal failed to consider his evidence “thoroughly, fairly and properly” because he disagrees with the Tribunal’s finding at paragraph 121 of the Decision that certain information was inconsistent with the applicant’s claimed circumstances in China. This, again, is no more than an attempt at merits review.
The applicant’s second ground fails.
The applicant’s third ground claims that the Tribunal failed to consider his evidence “fairly and properly” and made its finding “illogically and unreasonably” because of its findings at paragraphs 123 that the applicant’s applications for visitor visas contained false, incorrect and misleading evidence. The applicant submitted, most insistently at the hearing before this Court, that he should not be held responsible for this information because he did not submit the applications himself, but another person did on his behalf. By comparison, he submitted his own application for a protection visa.
This is an argument which the Tribunal rejected, and it was open on the evidence for the Tribunal to do so. There is no issue that the applicant was aware that the applications were being made on his behalf. He took no steps to ascertain the contents of those applications, let alone whether or not the information was the truth or not. In the face of evidence from the applicant that he was, in effect, recklessly indifferent to the truth of statements made to the Australian Government on his behalf to obtain a visitor visa, it is hardly surprising that the Tribunal made the finding that it did.
Further, the applicant has not demonstrated any illogicality in the Tribunal’s reasoning, even if that were sufficient to establish jurisdictional error.
The Tribunal did not fall into jurisdictional error in this regard and the applicant’s third ground fails.
The applicant’s fourth ground claims that the Tribunal made a finding “based on completely incorrect information or incorrect evidence” or on evidence that had been “misstated by the Tribunal”. He did not show any evidence of any misstatement or any incorrect information. The ground is no more than another instance of the applicant cavilling with the Tribunal’s factual findings and is no more than another attempt at merits review.
The applicant’s fourth ground fails.
Turning now to the matter raised by Ms Clegg of counsel about the failure by the Tribunal to comply with s.424B of the Act by not giving the applicant the prescribed period of time to reply to the written invitation for comment under s.424A, it should be noted that the Minister is acting as a model litigant by bringing this matter to the attention of the Court.
It is quite permissible for the Tribunal to invite an applicant to comment on or respond to information that it considers would be the reason, or a part of the reason, for affirming the decision that is under review, by attending an interview. Subsection 424B(3) specifically covers this situation:
If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:
(a) at the place specified in the invitation; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
In this case, regulation 4.35(3) prescribes the period:
If the invitation relates to an application for review of a decision that does not apply to a detainee, the prescribed period for giving the information or comments starts when the person receives the invitation and ends at the end of 28 days after the day on which the invitation is received.
In this, the Tribunal wrote to the applicant on 20th May 2009, inviting to comment on information about his various applications for Subclass 676, 686 and 679 visas which it stated contained “inconsistent and untrue” information.[45] The letter invited the applicant to give those comments at an interview immediately prior to the hearing on 29th May, to which he had already been invited.
[45] Court Book 121
Clearly, if the letter to the applicant is taken to have been received by him seven working days after the date, as provided by s.441C of the Act, he did not receive anything like 28 days notice. Ms Clegg estimated that the applicant should have been given until 17th June; my calculations are that he should have been given until 26th June 2009.
The difference in calculations is immaterial. It is plainly mathematically impossible to show 28 days between the 20th and 29th May.
The Tribunal did not comply with the requirements of Subregulation 4.35A by giving the applicant the prescribed period of notice to attend the interview.
The applicant did give comments about that information at the interview on 29th May 2009. He was accompanied by his migration agent, Mr Huang.[46] The Tribunal noted in its Decision Record that the applicant made extensive comments, which it set out, apparently verbatim.[47]
[46] Court Book 158 at [103]
[47] Court Book 158-161
At the hearing, which commenced immediately after the interview, on the same day, the applicant asked for more time to submit further information:
110. When asked if there was anything further he wished to say, the applicant requested a copy of the recording of the hearing and allow him 2 weeks to submit any further information.
111. The Tribunal agreed to allow the applicant an opportunity to listen to the recording of the proceedings and to provide any further information by 11 June 2009.[48]
[48] Court Book 162 at [110]-[111]
The applicant did in fact submit a further written statement, which he did on 12th June 2009. Notwithstanding the fact that it was technically one day late, the Tribunal considered the submission and set it out in the Decision Record.[49] In that written statement, the applicant made comments about his claim of having been persecuted and did not seek to provide any further information about the circumstances of his applications for the earlier visas.
[49] Court Book 162-163
In Minister for Immigration and Citizenship v SZIZO[50], the High court was considering a failure by the Refugee Review Tribunal to give notice to the applicants’ authorised recipient under s.441G of the Act. In that decision, French CJ, Gummow, Hayne, Crennan and Bell JJ held at [35] and [36]:
[35] While the legislature may be taken to have intended that compliance with the steps in ss 441G and 441A would discharge the tribunal’s obligations with respect to the giving of timely and effective notice of the hearing, it does not follow that it was the intention that any departure from those steps would result in invalidity without consideration of the extent and consequences of the departure…
[36] Notwithstanding the detailed prescription of the regime under Divs 4 and 7A and the use of imperative language it was an error to conclude that the provisions of ss 441G and 441A are inviolable restraints conditioning the tribunal’s jurisdiction to conduct and decide a review. They are procedural steps that are designed to ensure that an applicant for review is enabled to properly advance his or her case at the hearing; a failure to comply with them will require consideration of whether in the events that occurred the applicant was denied natural justice. There was no denial of natural justice in this case.[51]
[50] Supra
[51] (2009) 110 ALD 470; [2009] HCA 37 at [35]-[36]
In my view, the applicant has suffered no denial of natural justice. He did put his comments to the Tribunal in some detail, with the assistance of his migration agent. He was also given an opportunity to listen to the recording of the hearing and to make a further written statement. He did make a further statement, which was received by the Tribunal on 12th June 2009. As he did not make any further comments about that particular issue in his written statement, it is reasonable to infer that the applicant had nothing further to say on the subject.
As there was no denial of natural justice, the departure from s424B and reg.4.35A does not lead to a finding that the Tribunal decision was invalid.
I find that the Tribunal decision was a privative clause decision as defined by s.474(2) and not subject to declaration, certiorari or mandamus (s.474(1)).
The application will be dismissed.
The court will consider the question of costs.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 17 December 2009
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