SZLML v Minister for Immigration
[2008] FMCA 1219
•17 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLML v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1219 |
| MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for judicial review of decision of Refugee Review Tribunal affirming decision not to grant protection visa. |
| Migration Act 1958 (Cth), ss.424AA, 424A |
| SZLXI v Minister for Immigration & Citizenship [2008] FCA 1270 SZMCD v Minister for Immigration & Anor [2008] FMCA 1039 SZLTC v Minister for Immigration & Citizenship [2008] FMCA 384 |
| Applicant: | SZLML |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3194 of 2007 |
| Judgment of: | FEDERAL MAGISTRATE HOWARD |
| Hearing date: | 20 August 2008 |
| Date of Last Submission: | 20 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Wright |
| Counsel for the First Respondent: | Mr Kennett |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
Application dismissed.
Each party pay their own costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3194 of 2007
| SZLML |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant is a citizen of India. The Applicant was born in 1983.
The Applicant lived in a village in the state of Kerala, India.
The Applicant arrived in Australia on 10 April 2007. On 19 April 2007 the Applicant applied to the Department of Immigration &
Citizenship for a Protection Visa on 19 April 2007.
A delegate of the Minister for Immigration & Citizenship refused to grant the Applicant a Protection Visa. The delegate made this decision on 31 May 2007 and notified the Applicant of the decision and of the Applicant's review rights by letter dated 31 May 2007.
The basis for the delegate's refusal to grant the visa application to the Applicant was that the Applicant was not a person to whom Australia had protection obligations under the Refugee's Convention.
The Applicant applied to the Refugee Review Tribunal (hereinafter the Tribunal) on 29 June 2007 for a review of the decision of the Minister's delegate.
On 3 September 2007 the Tribunal affirmed the decision of the Minister's delegate not to grant the Applicant a Protection Visa.
The Applicant seeks a review of the decision of the Tribunal. The grounds of the application are contained in the Amended Application filed 25 July 2008:-
“1.The Tribunal made a jurisdictional error by failing to accord procedural fairness and, in particular, by failing to comply with s.424AA of the Migration Act (Cth).
PARTICULARS
(a) The applicant applied for review of the delegate's decision on 29 June 2007, as a consequence of which s.424AA of the Migration Act applied to his review proceedings.
(b) At the hearing, the Tribunal put to the applicant for comment or response information to the effect that the Communist Party of India (CPI) and the Communist Party of India (Marxists) (CPI (M)) are not the same party (CB62.2).
(c) This constituted the giving of particulars of information within the scope of s.424AA(a) of the Migration Act.
(d) The Tribunal did not, however, comply with the requirements of s.424AA(b)(i) or (iii) of the Act.
(e) This failure constituted a breach of s.424AA and a jurisdictional error:
SZLTC v Minister for Immigration & Citizenship [2008] FMCA 384 at [16].”
The orders sought by the Applicant which appear in the Amended Application are as follows:-
1. A writ of certiorari bringing the Tribunal’s decision into this Court to be quashed.
2. A writ of prohibition and/or an injunction to restrain the First Respondent, her servants and agents, from acting upon the Second Respondent’s decision.
3. A writ of mandamus remitting the matter to the Second Respondent and directing the Second Respondent to reconsider and re-determine the Applicant’s application for a Protection Visa according to law.
4. An order that the Respondents pay the Applicant’s costs.”
Is Section 424AA of the Migration Act 1959 (Cth) engaged?
Review of the Tribunal's decision in this matter requires a consideration of s.424AA of the Migration Act 1958 (Cth) hereinafter referred to as "the Act". It is convenient at this point to include the text of sections 424AA and s.424A of the Act:-
“SECTION 424AA
Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)the Tribunal may orally give to the applicant 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)if the Tribunal does so – the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
SECTION 424A
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 gave for the purpose of the application for review; 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.”
The Parliament has used some similar wording in the two sections. In particular I note s.424AA(a) states:
“(a)The Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review.”
In s.424A(1)(a) it states:
“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 part of the reason, for affirming the decision that is under review.”
Because of the similarity in that part of the wording which has been highlighted above from s.424AA and s.424A, I agree with the submission made on behalf of the Respondents that it is relevant for the Court to consider those cases where s.424A was interpreted by the Courts.
Is the "information" referred to in paragraph 1(b) of the “Grounds of Application” included in the Amended Application filed 25 July 2008 "information" for the purposes of s.424AA?
The Tribunal's "Statement of Decision and Reasons" are contained in Exhibit 1 (the Court Book). At pages 7 and 8 of the Tribunal's decision (pages 62 and 63 of the Court Book) the Tribunal stated inter alia -
“... Regarding his third main claim, the Tribunal expressed concern that at certain stages in the hearing, the Applicant said his opponents supported the CPI and at others, he said, they were with the CPI (M). Addressing this concern, the Applicant said the CPI and CPI (M) are "the same thing". The Tribunal put to him that they are not, and the Applicant said that they are within the same party. It is possible he meant that they are within the same coalition, which is true. He did not speak of his opponents in any detail ...
Overall, the Tribunal finds the Applicant's grasp of politics to be very vague and unimpressive, considering he claims to have persevered in politics beyond his school years and through a number of violent attacks occurring over almost a decade. Even allowing for his being aware that the CPI and the CPI(M) are part of the same political coalition, the Applicant did not impress the Tribunal in his description of the protagonist parties in this case. The Tribunal finds that the Applicant's familiarity with politics is not what one would reasonably expect to find in a person with the Applicant's claimed longevity in the AVBP and his claimed perseverance in the face of political opponents ...
The Tribunal does not accept on the evidence before it that the Applicant has had any significant involvement in politics, or even student politics, in India.
The Tribunal is not satisfied that the Applicant faces a real chance of convention-related persecution in India. His claimed fear of such persecution is not well-founded. He is not a refugee.”
In my view the "information" contained in paragraph 1(b) of the Amended Application will not come within s.424AA if s.424A(3) is applicable in this case.
In SZLXI v Minister for Immigration & Citizenship [2008] FCA 1270 Cowdroy J stated at paragraph 27:-
“27.The Court observes that s.424AA of the Act does not contain an equivalent provision to s.424A(3). Section 424A(3) identifies material which is not ‘information’ for the purposes of the application of that section. However, as s.424AA is merely an alternative form of notification available to the Tribunal (see s.424A(2A)), the Court considers that the exclusions contained in s.424A(3) apply with equal force to s.424AA. Such inference is supported by the collective use of the term ‘information’ in s.424A(2A) of the Act (a subsection which applies to both ss.424A and 424AA), as such use implies uniformity of meaning. Section 424A(2A) provides:-
‘(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.’
Accordingly, the Court considers that what is not ‘information’ for the purposes of s.424A(1) of the Act is also not ‘information’ for the purposes of s.424AA.”
Therefore the exclusions in s.424A(3) of the Act “apply with equal force to s.424AA”.
In paragraph 13(ii) of the First Respondent’s written submissions it is stated:-
“13.The Party information was not required to be disclosed to the Applicant under s.424A.
…
(ii)The Party information was not specifically about the Applicant or another person and thus came within the exception in s.424A(3)(a).”
The information put to the Applicant was “Independent Country Information”. Such information is excluded from the operation of s.424A(1) by s.424A(3) (note SZMCD v Minister for Immigration & Anor [2008] FMCA 1039 per Scarlett FM at paragraph 72).
Accordingly, if such Independent Country Information is excluded from the operation of s.424A(1) by s.424A(3) then, in my view, it follows that such information is also excluded from the operation of s.424AA. Accordingly I do not consider that s.424AA has been engaged. I accept the submission made by the First Respondent in paragraph 14 of the written submissions to the effect that the failure by the Tribunal, “to deal with the Party information in accordance with s.424AA did not have any consequences for the validity of the Tribunal’s decision.”
The decision of Cowdroy J in SZLXI (supra) was delivered on 21 August 2008. It has clarified the position in relation to s.424A(3) and its applicability to s.424AA of the Act.
The Applicant had relied upon the decision of His Honour Federal Magistrate Driver in SZLTC v Minister for Immigration and Citizenship [2008] FMCA 384. In paragraph 16 of that decision His Honour stated, inter alia:-
“It also appears that if the Tribunal embarks upon a course of disclosure under s.424AA it does not enjoy the protections in s.424A(3).”
The decision of Cowdroy J in SZLXI (supra) endorses the approach of His Honour Federal Magistrate Scarlett who dealt with SZLXI (supra) at the first instance.
Conclusion
The grounds relied upon by the Applicant therefore must fail. There is no jurisdictional error. It therefore follows that the Application for review must be dismissed.
In relation to the question of costs I note that there have been divergent views within the Federal Magistrates Court of Australia as to whether or not s.424A(3) of the Act applies to s.424AA of the Act. The decision of Cowdroy J in SZLXI (supra) has (at least for the present) clarified the situation. In view of the fact that the decision in SZLXI (supra) was only handed down on 21 August 2008 (the day after this matter was heard in Sydney) I take the view that each party should bear their own costs.
I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of Howard FM
Associate: J Witenden
Date: 3 December 2008
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