SZKPN v Minister for Immigration
[2007] FMCA 1941
•6 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKPN v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1941 |
| MIGRATION – Whether a s.424A letter must be sent before the hearing – whether there are temporal requirements in s.424A – whether such words should be introduced for the purposes of construction. |
| Migration Act 1958 (Cth), ss.424A, 474 |
| Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 SZHPD v Minister for Immigration and Citizenship [2007] FCA Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 SZGBT v Minister for Immigration and Citizenship [2007] FCA 565 SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091 |
| Applicant: | SZKPN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1461 of 2007 |
| Judgment of: | Turner FM |
| Hearing date: | 21 September 2007 |
| Date of last submission: | 21 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.F. Gormly |
| Counsel for the Respondents: | Mr J. Mitchell |
| Solicitors for the Respondents: | Mr J. Pinder of DLA Phillips Fox |
ORDERS
The application, amended application, and further amended application are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1461 of 2007
| SZKPN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an order to show cause why a remedy should not be granted in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 27 March 2007, 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 27 July 2007, and a further amended application by leave of the Court on 21 September 2007.
Background
On 29 September 2006 the applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa. In this application she claimed a fear of persecution on the basis of her political activities.
This application was refused by a delegate of the first respondent on 9 December 2006 (CB 42) and by the Tribunal on review on 27 March 2007 (CB 88).
The matter is now before this Court pursuant to an application for judicial review filed on 8 May 2007.
Issues for determination
The issues before the Court are as follows:
·Whether a s.424A letter has to be sent as soon as the Tribunal becomes aware of “information” and its relevance;
·Whether a s.424A letter must be sent before the hearing by the Tribunal.
The application
In her application, the applicant set out nine grounds as follows:
(1)The Refugee Review Tribunal has failed to see that the applicant satisfies all the criteria required for a protection visa as stated in page 3 of the decision. Firstly, the applicant is out of the country. Secondly, the applicant apprehends serious harm as the government has failed to protect the applicant from persecution. Thirdly, the applicant has fears for reason of ‘political’. Fourthly, the applicant has a well founded fear for a Convention stipulated reason.
(2)The Refugee Review Tribunal failed to see that the applicant satisfies the four key elements to the Convention definition as detailed by the Tribunal in its decision record as above.
(3)The Tribunal should have given the benefit of doubt to the applicant as stated in page 11 of the decision.
(4)The Tribunal failed to see that the applicant was nervous at the time of hearing and therefore piecemeal facts cannot be set aside.
(5)The Tribunal having given the benefit of doubt in page 12 should have allowed the application.
(6)The Tribunal committed a mistake by commenting that the applicant’s knowledge of local political conditions are superficial.
(7)A reading of the Tribunal’s decision will show that the Tribunal was more interested to dismiss the claim of the applicant in any way.
(8)The Tribunal failed to give any weight or proper consideration on the aspect of actual physical and sexual assault on the applicant. This is a serious error and the applicant had not been given a fair and proper deal from the Tribunal.
(9)The applicant reserve her right to add more grounds at a later stage.
The applicant filed an amended application on 27 July 2007 setting out the following grounds and particulars:
That the decision of the Refugee Review Tribunal (“the Tribunal”) was affected by jurisdictional error in that the Tribunal failed to comply with the requirements of s.424A(1) & (2) Migration Act 1958:
(1)In relation to the following information:
(a)Information from the applicant’s protection visa application that the applicant was based in Manila from 1995 to May 2006;
(b)Information from a Departmental case note on the applicant’s application for a tourist visa that the applicant had provided the Department with evidence of being in stable employment for 7 years and 2 months as a sales and marking manager.
(2)The information in 1(a) & (b) above was used by the Tribunal as part of the reason for affirming the decision under review.
Particulars
The information was a factor
· in the Tribunal declining to accept that the applicant had any marked function or responsibilities during the 2001 election campaign, or that she acquired any kind of political profile;
· in the Tribunal’s finding that the applicant did not campaign actively for the mayor’s rival in the 2001 election campaign
· in the Tribunal declining to accept that the applicant disrupted political meetings or engaged in any similar provocations in 2001, or that she suffered (such as expulsions from meetings);
· in the Tribunal’s rejection of the applicant’s claim to have moved to Manila in July 2001;
· in the Tribunal declining to accept that she moved back to Manila to hide from consequences of campaigning;
· in the Tribunal’s finding that neither the mayor nor anyone else had any political reason to target the applicant.
(3)The information in 1(a)–(b) above was not given by the applicant for the purposes of his application for review and therefore s.424A(3)(b) does not apply.
(4)The Tribunal did not give written notice prior to the hearing of its intention to use the said information as part of its reasons for affirming the decision under review.
A further amended application was filed in Court, by leave, on 21 September 2007, setting out the following grounds and particulars:
[The applicant repeats all grounds and particulars in the amended application]
The further amended application simply amends the orders sought by the applicant.
Findings of the Court in relation to the grounds in the application
Ground 1 seeks a review of findings of fact by the Tribunal that were properly open to it on the material before it. Such findings are not open to review. Ground 1 is rejected.
Ground 2 seeks to review findings of fact that are not open to review. Ground 2 is rejected.
Ground 3 claims the benefit of the doubt should have been given to the applicant. The Court agrees with the statement by the Tribunal (at CB 98.4):
…the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.
An applicant must establish their case to the satisfaction of the Tribunal. The Tribunal did give the applicant “the benefit of the doubt” in accepting that “she supported a candidate opposed to the current mayor during the 2007 municipal election”. As stated by the Federal Court of Australia in Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
The Tribunal analysed the applicant’s claims in detail and set out reasons for rejecting many of them. There was no reason to give the applicant the benefit of the doubt on the claims rejected by the Tribunal, as the Tribunal did not express any doubt about its conclusions. As stated by the Tribunal CB 98.4, “the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims”. As the Tribunal formed an adverse view of the applicant’s credibility (CB 101.8) and rejected many of her claims for the reasons it set out, there was no reason for it to give the applicant the benefit of the doubt beyond that given. Ground 3 is rejected.
Ground 4 alleges that as the applicant was nervous at the hearing, the Tribunal should not have set aside piecemeal facts. The Tribunal cautioned itself about the difficulties faced by asylum seekers (CB 98.4). “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”: Lee (ante). Ground 4 is rejected.
Ground 5 alleges that the Tribunal “having given the benefit of the doubt” should have allowed the application. The Tribunal set out its findings of fact which led to it affirming the decision under review. Those findings of fact were properly open to the Tribunal and are not subject to review. Ground 5 is rejected.
Ground 6 complains about the Tribunal’s assessment of her evidence about local political conditions as being superficial. It is properly the function of the Tribunal to make an assessment of the evidence and to make findings of fact. Those findings are not subject to review. Ground 6 is rejected.
Ground 7 alleges bias. No particulars are provided and no evidence has been filed to comply with the requirement that an allegation of bias must be “distinctly made and clearly proven”: SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22], citing Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The Court also accepts that it “will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision”: SCAA vMinister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].
To establish bias the applicant would have to show that the Tribunal “acted dishonestly or arbitrarily or capriciously”: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [56-59].
In Re Refugee Review Tribunal & Anor; ex parte H & Anor (2001) 179 ALR 425 at [27], the High Court stated (citing Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644 at 647 [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ) that:
The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided.
There is nothing to show that a “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided”. Bias has not been established. Ground 7 is rejected.
Ground 8 complains that the Tribunal did not give weight or proper consideration to the physical and sexual assault of the applicant. The Tribunal did not accept that the assault occurred and gave its reasons for that finding. It was a matter for the Tribunal whether it accepted or rejected the evidence, and what weight it placed on it: Lee (ante). Ground 8 is rejected.
Findings of the Court in relation to the grounds in the amended application
The grounds commence with an allegation that s.424A(1) and (2) were breached. The particular complains about the Tribunal relying on particulars from the applicant’s protection visa about being based in Manila from 1995 to May 2006, and a case note by the Department on that application that the applicant had been in stable employment for 7 years and 2 months as a sales and marketing manager. Both those matters were put to the applicant in the s.424A letter sent on 12 February 2007 (CB 78). The relevance of the information was explained to the applicant and the applicant was invited to comment. The applicant commented by letter dated 26 February 2007 (CB 80).
Ground 3 states that the information was not given for the purpose of the application. As the Court finds (post) that s.424A was not breached, this ground does not required determination.
Ground 4 objects that the Tribunal did not give written notice before the hearing of its intention to use the information detailed above as part of its reasons for affirming the decision under review.
Section 424A provides:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies – by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant for review gave for the purpose of the application; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non‑disclosable information.
There is nothing in s.424A or in other provisions of the Act that require written notice under s.424A to be given prior to the hearing. Section 424A(1)(a) requires the Tribunal to give, in the way that the Tribunal considers appropriate, clear particulars of any information. Section 424A(1)(c) requires the Tribunal to invite the applicant to comment on or respond to the particulars; that was done.
The Court follows the decision of the Privy Council in Thompson (Pauper) v Goold & Co [1910] AC 409 at 420 per Lord Mersey:
But then it is said that the Act of Parliament cannot be administered properly unless such words be read into it; for that it contemplates an opportunity being afforded to the master of settling the claim, and so avoiding arbitration proceedings, and that such opportunity is not afforded unless the workman says how much he wants. This reasoning does not satisfy me. It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do. Here I see no necessity at all for introducing the words.
In the instant matter, the Court sees no necessity to introduce words into s.424A to introduce temporal requirements that are not otherwise there.
The Court was referred to the decision in Marshall v Watson (1972) 124 CLR 640 where at 649 Justice Stephen (with whom Justice Menzies agreed) stated that “it is no power of the judicial function to fill gaps disclosed in legislation”. Also, in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at [160], Justice Kirby stated:
For example, it would have been simple to include in the opening text of s 424A(1) words making it clear that the section applied only “in respect of the documents referred to in s 423 or the additional information referred to in s 424”. No such words of limitation in the application of s 424A were enacted. In the absence of such an express limitation in the language of s 424A (a section in any case added to the statutory provisions after their first enactment) this court should be slow to add such words to those adopted by the parliament or to conclude that such words, although omitted, are to be found between the lines.
The observations in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17]-[22] as to the time a s.424A notice must be sent are obiter as the Court was not called on to decide whether a s.424A letter was in breach of s.424A(1) where it was sent after the hearing. In SZBYR at [13] Glesson CJ, Gummow, Callinan, Heydon and Crennan JJ referred to the decision of the majority in SAAP (ante) that “the temporal effect was not limited to the prehearing stage” and stated that “these propositions do not determine the outcome of this case”. The majority in SZBYR therefore stated that in SAAP, it was decided that “its [s.424A(1)] temporal effect was not limited to the pre-hearing stage”, and did not disagree with that decision. The obiter in SZBYR therefore does not affect the binding force of the decision in SAAP. In fact, the Court in SZBYR approved of the binding force of the decision on the point in SAAP as it said at [14]: “Had the second point in SAAP been decided differently, the present case would have been simpler to resolve”. The High Court did not determine the issue in SZBYR as it stated at [21] that “the short answer to all these points is that, on the facts of this case, s.424A was not engaged at all”. The decision in SAAP on this issue is therefore binding on this Court.
The Court agrees with the written submission for the applicant at [21] that “the Court in SZBYR made it clear that it was not overruling SAAP…as to its temporal effect which was not limited to the pre-hearing stage”. The Court accepts the submissions for the first respondent that:
The authorities have clearly held that it is permissible for a Tribunal to send a letter pursuant to s.424A(1) after the hearing without holding a further hearing in respect to the information particularised in that invitation: see SZGBT v Minister for Immigration & Citizenship [2007] FCA 565 at [25]; Win v Minister for Immigration & Multicultural Affairs [2001] FCA 56 at [24] – [28]; Ex parte Applicant M17/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 86 at [61] – [65]. Accordingly, no error arises when an invitation pursuant to s.424A(1) is sent after a Tribunal hearing.
In any case, the information referred to in the 424A letter did not, of itself, form part of the reason for decision as that information did not contain in its terms a rejection, denial or undermining of the Applicant’s claims to be a person to whom Australia owed protection obligations: SZBYR at [17]. The reason for the decision was found in the Tribunal’s appraisal of that information: CB 100. That appraisal was not itself information: SZBYR at [18].
The submissions continue that the information relied on by the applicant here is at CB 16 and 41. The material at CB 16 shows that the applicant was based in Manila between 1995 and 2006; the material at CB 41 is a statement that as at 13 July 2006, the applicant had been “Employed as Sales and Marketing manager of 7 years 2m[onths]”. Those statements do not in their terms constitute “a rejection, denial, or undermining” of the applicant’s claims. The Court accepts that it is what the Tribunal made of that material that led to its decision. The Tribunal found that the applicant’s evidence that she lived in Manila (CB 16) was inconsistent with her evidence at the hearing that she fled to Manila to avoid threats (Transcript of Tribunal hearing, p.16), and refers to the applicant’s written response that she was based in Manila from 1995 (CB 16). Therefore it was only after consideration of the applicant’s evidence at the hearing that the material at CB 16 and 41 constituted what could be “a rejection, denial, or undermining” of the applicant’s claims. Further, the appraisals of the Tribunal from the evidence are not “information” for the purposes of s.424A(1) (SZBYR at [18]) if they are natural and obvious appraisals (SZGQZ v Minister for Immigration and Citizenship [2007] FCA 1091 at [16]). Therefore the material was not required to be put in a s.424A letter. The fact that the Tribunal set out the material in a s.424A letter after it had made its appraisals did not transform that detail into “information” for the purposes of s.424A. A breach of s.424A(1) has not been established. Ground 4 is rejected.
Findings of the Court as to the further amended application
These grounds and particulars are the same as those in the amended application and are dismissed for the reasons given above.
The Court rejects the argument for the applicant that the Tribunal is obliged to send a s.424A letter as soon as it has determined that it has information, and has determined that the information would be the reason or part of the reason for affirming the decision under review. Nothing in the Act or the authorities requires that: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [94].
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application, amended application, and further amended application are dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: M Giang
Date: 6 December 2007
0
18
1