SZMVJ v Minister for Immigration
[2009] FMCA 715
•29 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMVJ v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 715 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether applicant sought an extension of time to reply to s.424A letter or provide further evidence – whether Tribunal erred in making decision before foreshadowed additional material provided by the applicant. |
| Migration Act 1958 (Cth), ss.48B, 417, 422B, 424A, 424B, 441C, 441G Migration Regulations 1994 (Cth), r.4.35 |
| Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 WAAF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 316 |
| Applicant: | SZMVJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2605 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 7 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 29 July 2009 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Ms A Mitchelmore |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2605 of 2008
| SZMVJ |
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 signed on 1 September 2008 and handed down on 11 September 2008 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, a citizen of the Peoples Republic of China, arrived in Australia in December 2007 and applied for a protection visa in January 2008. In a statutory declaration attached to his protection visa application he claimed that in China he had worked as a self-employed driver. He claimed that in January 2004 he had been contracted to deliver some bricks to a construction site and while using a mini-tractor to do so he had been hit by a truck on a national highway. The applicant claimed that he experienced serious injuries and was hospitalised, but that as he and his family could not afford medical expenses associated with his treatment he was discharged although still in danger. He had to stay at home for one month and returned to the hospital after the family collected sufficient money. He claimed he remained in hospital for more than five months and did not fully recover until the end of 2005.
The applicant claimed that at the time of the accident his brother had been following him in his truck and saw the accident happen and reported it to the PSB and police, providing the number plate of the truck that had struck the applicant’s vehicle. The applicant claimed that the PSB and the police were reluctant to pursue the matter, but that after a friend of his wife started to work for the PSB at the end of 2005 she secretly provided them with the registration details. This revealed that the truck had been registered in the name of the nephew of the chief procurator of the “Procuratorate” (sic) of a named county. The applicant claimed that this was why the PSB had not assisted them.
The applicant claimed that although his family tried to talk him out of it, from March 2006 he started approaching government agencies in the local city and county urging them to investigate the accident, corruption of police and local officials and to provide him with reasonable compensation for his losses and medical expenses. He claimed that he did not receive any help from government agencies, but in fact was threatened on many occasions by the truck owner, his family and relatives. He claimed the truck owner and his “fellows” beat him heavily in public in June 2006, November 2006 and March 2007. He claimed that his attackers had police support, that he was unable to get any help and that he had received anonymous letters warning him that his son would be in danger if he did not stop his activities against the truck driver and his uncle. The applicant claimed he sent his son overseas in May 2007.
The applicant claimed that during a congress of local county officials (including his attacker’s uncle) on 28 September 2007 he organised a sit-in protest outside the hotel where delegates were staying. He claimed that he and others involved were arrested and that he was detained for two weeks as the organiser of an anti-government movement and claimed that he was tortured during this period. He was released after his wife bribed the police and the family of the truck driver.
The applicant claimed that after his release he continued to be subject to persecution by the police and the truck driver’s family and followers, that he obtained a visa in November but had to wait another month for his departure because a friend of his wife found that his name was on a PSB blacklist. He claimed that his wife’s friend was able to bribe one of her former colleagues at an airport and that he was able to leave in December 2007.
The application was refused by a delegate of the respondent who found that the applicant had made unsubstantiated claims that at times lacked sufficient detail and had not provided any documentary evidence in support of his claims (including his claimed hospital stay).
The applicant sought review by the Tribunal. He attended a Tribunal hearing on 24 July 2008. At the hearing he provided a number of documents with English translations, including a report on the results of a CT examination conducted at a military hospital on 11 February 2004 which recorded that “[t]he patient’s upper limbs and chest were scalded seriously” and suggested that he be admitted into hospital, a copy of a document entitled “Warrant of Arrest” dated 28 September 2007, a “Certificate of Release” dated 12 October 2007 and a PRC motor vehicle driver licence in his name valid from 1 October 1990 to 1 October 1994. The applicant also provided a copy of a photograph of his upper torso.
On 15 August 2008 the Tribunal wrote to the applicant by letter sent by facsimile to his authorised recipient under s.424A of the Migration Act 1958 (Cth) inviting him to comment on information that it considered would, subject to any comments he made, be the reason or a part of the reason for affirming the decision under review. Among the matters raised with the applicant was the initial absence of medical evidence to support his claim that he had been seriously injured in a road accident and had incurred “expensive medical costs”. The Tribunal acknowledged that at the hearing the applicant had provided a copy of a CT examination result report stating that he had been examined on a date that was one month after the claimed accident date, but observed that he had provided no evidence that he had been admitted to hospital, that he remained there for approximately five months or that he underwent extensive medical treatment. The Tribunal put to him that the lack of supporting evidence might lead it to conclude that although he had at some time in his life suffered burns to his body this did not occur following an accident on 11 January 2004 and that it may conclude that he was not hospitalised for approximately five months from February 2004. On this basis the Tribunal put to the applicant that it may find that he did not seek compensation or an investigation of an accident and corruption by the authorities and may conclude that he did not become politically active for these reasons.
The Tribunal also put to the applicant inconsistencies in his claims as to whether he had held a passport prior to the passport on which he travelled to Australia, in his employment claims in his protection visa application, in his application for a tourist visa and at the hearing and the fact that while he claimed variously to be a truck driver, a mini-tractor driver and a sales manager with his own business, at the hearing he had stated that he did not have to pay a fine for having a second child because he was a farmer. The Tribunal also put to the applicant issues about the delay in his departure from China after he had a passport in his own name and an Australian visa. The Tribunal invited the applicant to give comments or respond to the above information in writing. It stated: “Your comments or response should be received at the Tribunal by 29 August 2008”.
It also stated:
If you cannot provide your written comments or response by 29 August 2008, you may ask the Tribunal in writing for an extension of time in which to provide the comments or response. If you make such a request, it must be received by the Tribunal before 29 August 2008 and the request must state the reason why the extension of time is required. [Emphasis added]. The Tribunal will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If the Tribunal does not receive your comments or response within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain your views on the information.
On 29 August 2008 the applicant’s migration agent sent a facsimile letter to the Tribunal advising that she had been instructed “to provide following document in relation to some issues arising from the Tribunal’s fax dated 15 August 2008”. The letter enclosed a copy of a statutory declaration from the applicant dated 29 August 2008 in which he addressed the issue of passports held by him, inconsistencies and his departure from China. In addition the applicant stated:
I have recently contacted my wife, asking her to find more medical evidence that I had been admitted to hospital or that I had remained in hospital for approximately 5 months or that I underwent expansive medical treatment; and my wife did get those documents. But, the question is that there is strict monitoring system on the international mails; and it particularly targets against the people like me who has been on the “blacklist” of the PSB. My wife has to find a reliable person who worked at the post office to bypass monitoring system and send them to me. The person, who assisted my wife to send some documents to me last time, was on the holiday right now; and so, I had to wait for another one or (sic) weeks. However, as soon as I received them, I would submit to the Tribunal immediately.
On 2 September 2008 the Tribunal sent a facsimile letter to the applicant addressed to his authorised recipient inviting him to attend a handing down of the Tribunal decision on 11 September 2008.
In its reasons for decision the Tribunal accepted that the applicant was a citizen of China and that he had suffered serious burns. However it did not accept any of his other claims. The Tribunal had regard to what it considered to be a number of “significant inconsistencies” in the applicant’s evidence at different stages of the application process in relation to issues such as whether he had previously held a passport, whether he had difficulties in obtaining a further passport and whether he departed China legally or illegally. It also had regard to inconsistencies in his evidence about his occupation in China and whether he worked for a particular company as a sales manager, the fact that the evidence of his driver’s licence was a licence that expired in October 1994, that he had given inconsistent evidence about whether he had driven as an unlicensed driver and that it was not credible that he would have brought an expired licence to the hearing if he had, as he claimed, a more recent Chinese licence available at his home in Australia. The Tribunal found that the applicant was not a credible witness. It did not accept his evidence that he was of adverse interest to the authorities or that he had to pay money or bribes for a passport and found that he had not been driving trucks since the end of 1994 after his truck licence expired.
The Tribunal addressed the medical evidence provided by the applicant at the hearing, consisting of the CT examination result report dated 11 February 2004. It expressed concern about the genuineness of the document which it stated it had brought to the applicant’s attention, noting that it was dated one month after he claimed to have been involved in a serious accident where he claimed to have suffered serious burns and yet there was no indication that he was admitted to hospital. It referred to the applicant’s claim that he was admitted to hospital in February 2004 for some four to five months but also to the fact that at the time he lodged his application for a protection visa he provided no medical evidence, reports or documents to show his injuries or the medical costs he claimed to have incurred. The Tribunal did not accept that the document provided was genuine. It found it not credible that if the applicant’s burns were so severe one month after the claimed accident that he had to be admitted to hospital for four to five months, that the doctor would not have made mention of the admission to hospital or that there would not have been any documents relating to his injuries, treatment and the medical care he received as well as in relation to admission and discharge dates.
The Tribunal referred to the fact that it had brought to the applicant’s attention that there was no evidence in the document from the hospital of his admittance to hospital and that there was only a “suggestion” that he be admitted to hospital. It found that the lack of supporting medical evidence led it to conclude that although the applicant had suffered burns to his body at some time, he did not suffer such burns following an accident on 11 January 2004 as claimed. It found that if it were the case that the applicant had been hospitalised but forced to leave because his brother did not have the money to pay for medical costs he would have been able to obtain a letter from the hospital that he had been taken to the hospital on 11 January 2004. The Tribunal found that the applicant was not involved in a truck accident in which he was severely burned on 11 January 2004 and did not accept his evidence that he was taken to hospital or forced to leave, although still in danger, because his brother did not have the money for the very expensive medical costs. Nor did it accept that he was hospitalised for approximately four to five months in February 2004.
The Tribunal continued:
Although the applicant has stated in the Statutory Declaration (declared on or about 29 August 2008) that he has contacted his wife asking her for more medical evidence and that he will send them to the Tribunal as soon as he receives them, the Tribunal does not intend to allow further time for the applicant to provide further evidence. The Tribunal will take into account any evidence provided prior to the handing down of the decision. However, the Tribunal does not accept the applicant’s claim that his wife has obtained documents but there is strict monitoring of international mail and it particularly targets people like the applicant who have been on the “blacklist” of the PSB. The Tribunal does not accept that the applicant is on a blacklist of the PSB and finds that the reason that medical documents were not provided of the applicant’s hospitalization is that he was not hospitalized in 2004 after the claimed accident. The Tribunal does not accept the applicant’s claim that his wife has to find a reliable person at the post office to bypass monitoring system and send them to the applicant and that the person who assisted his wife to send documents to him the last time was on holiday and he had to wait “another one or (sic) weeks”.
As the Tribunal did not believe the applicant’s claims that he was hospitalised after the claimed accident, it found that he did not seek compensation, an investigation of the accident and of corruption by the authorities and that he did not become politically active for these reasons.
The Tribunal did not accept the applicant’s claims about petitioning, involvement in protest or demonstration or that he was arrested, detained, mistreated, or that bribes were paid to obtain his release. Nor did it accept his claims about the implication for his family. In relation to his claims that he was classified as the leader of an anti-government movement, it found that his evidence at the hearing about his political activities showed a propensity to tailor his statements in a manner which achieved his own purpose, particularly given significant inconsistencies in his evidence and between his evidence and independent information.
The Tribunal also had regard to inconsistencies in the applicant’s evidence about any involvement in anti-Chinese government activities in Australia and found that he had not been involved in anti-Chinese government activities since his arrival in Australia.
The Tribunal considered the applicant’s evidence that he had two children and that when asked about the one child policy at the hearing he stated he lived in a rural area and was a farmer and that the policy did not apply in rural areas. It observed that he did not claim any discrimination as a result of having two children in China, but stated that he did not have to pay a fine. It took into account his evidence in his statutory declaration that people who had held “Agricultural household register” were still called “farmers” by the government even though they were not involved in farming. The Tribunal found that the applicant was not discriminated against because he had two children.
The Tribunal also found the five week delay in the applicant’s departure from China after he obtained a passport and visa inconsistent with his claim to be a refugee, to be in fear and to be at risk of dying. It did not accept his claim about his attitude to travelling overseas. It did not accept his explanation for the delay in leaving China and found that he did not have a well-founded fear of persecution for a Convention reason.
The Tribunal considered the warrant of arrest and certificate of release submitted by the applicant but as it did not accept his claims about detention and release and persecution thereafter and in light of information about fraudulent documents from China and the fact that these documents had not been provided to the Department at the time of the protection visa application it found that they could not be relied upon. It found the applicant’s evidence, that the wife did not send those documents to him in Australia because it was dangerous and he was on the blacklist and yet she was prepared to send them to someone else in China who was a friend of the applicant’s son and put him at risk, was not credible. The Tribunal did not accept the applicant’s evidence that the student was not aware of this and that the documents were sent secretly.
Because the Tribunal did not accept that the applicant was in an accident on 11 January 2004 it did not accept his claims about the other driver and what flowed from the identity of the other driver or his claims about his inability to obtain police help, anonymous threats and bribes or that he was beaten up as claimed. Nor did the Tribunal accept his more general claim that he had to protest against the Chinese dictatorship or that he must strive for his basic human rights or protest against corrupt communist officials like the driver’s uncle.
The Tribunal concluded that there were a number of significant inconsistencies in the applicant’s evidence and together with his implausible explanations for such inconsistencies it concluded that his evidence could not be relied upon, that he was not credible and that he was not a witness of truth. It reiterated that it did not accept his claims and found that he was not persecuted or discriminated against because of his political opinion in China and that he did not have a well-founded fear of persecution in China for reasons of his political opinion.
The applicant sought review by application filed in this Court on 9 October 2008. Although formulated in a number of paragraphs, the application essentially contains one ground of review. The applicant claimed that the Tribunal failed to consider his claims “properly and fairly” and that he had not been provided with a “fair chance”. He referred to the fact that one of the grounds in the Tribunal’s decision was that he was unable to provide proper medical evidence in support of his claims. He referred to his response to the s.424A letter of 29 August 2008 in which he claimed that his wife had obtained documents but had to find someone to bypass the monitoring system at the post office to send them to him and that he had to wait for another one or two weeks but that as soon as he received them he would submit them to the Tribunal immediately. He stated in his application that he had received documents (in “not a long period”), but unfortunately the Tribunal made its decision without giving him any chance. He claimed that the Tribunal should have clearly informed him if it had decided to decline his request for more time to provide the medical documents and that he might have made further comments on this, but that the Tribunal had failed to do so and that this was unfair. In effect, he claimed that the Tribunal’s failure to clearly inform him of its decision to decline his request for further time deprived him of a “fair chance” to have his review application considered. He attached copies of the documents he claimed he had received to his review application.
In oral submissions the applicant reiterated his claim that the Tribunal should have informed him of its decision to decline his request for further time.
As indicated above, in the letter of 15 August 2008 faxed to the applicant’s authorised recipient inviting the applicant to comment on certain information under s.424A of the Act, the Tribunal gave the applicant a period of two weeks to respond to the information it put to him. That period of time complied with the requirements of r.4.35(3) of the Migration Regulations 1994 (Cth) (see also ss.441C(5) and 441G(2) of the Act). The letter stated that the applicant’s comments or response should be received at the Tribunal by 29 August 2008.
Pursuant to s.424B(4) of the Act the Tribunal may extend the period of time for an applicant to respond to a letter under s.424A beyond the prescribed period. The Tribunal is under no obligation to grant any request for an extension of time. In the event that the Tribunal refuses such a request, the Migration Act imposes no obligation on the Tribunal to notify an applicant of that refusal in any particular manner or within any particular timeframe.
In this case the Tribunal stated in its letter of 15 August 2008 that if the applicant wanted further time to respond to the information it put to him or provide comments he should make that request “before 29 August 2008” and that it would consider any such request and advise whether or not the extension has been granted. However it was only on 29 August 2008 that the applicant provided a statutory declaration to the Tribunal in which he stated that his wife had collected further documents for him and that he would send them to the Tribunal as soon as he received them, which he expected to occur in one to two weeks. There was no express response to the issue raised in the statutory declaration, whether it be seen as a request for an extension of time made outside the time specified by the Tribunal in the letter of 15 August 2008 or more generally as a request for time to provide additional evidence to the Tribunal before the Tribunal made its decision. However the Tribunal’s letter of 2 September 2008 informing the applicant that the decision would be handed down on 11 September 2008 was such as to put the applicant on notice that no additional time to provide documentary material would be provided beyond 11 September 2008. The letter of 2 September 2008 can be taken to be an indication to the applicant that the Tribunal was not prepared to delay its decision beyond 11 September 2008 to await the documents anticipated by the applicant within “another one or (sic) weeks” as at 29 August 2008. In its reasons for decision the Tribunal stated that it did not intend to allow further time for the applicant to provide further evidence and that it would take into account any evidence provided prior to the handing down of the decision. There is no suggestion that any further material was provided prior to the handing down.
Counsel for the first respondent raised the issue of whether the statutory declaration was in fact a request for an extension of time within which to give comment or respond to the information in the s.424A letter. Whether or not it was, it was outside the time specified in the letter, in that the applicant did not make a request for an extension that was received by the Tribunal before 29 August 2008. In this sense there was no request for an extension of time made in the manner specified in the Tribunal letter of 15 August 2008. The Tribunal had indicated that it would advise whether or not such an extension was granted. However as the applicant did not seek an extension of time before 29 August 2008, no issue arises as to whether the absence of an express response to a request (made within the time provided) for an extension of time to reply to a s.424A letter would constitute a jurisdictional error where the Tribunal had stated that it would advise whether such extension of time was granted.
There is no statutory obligation on the Tribunal to notify the applicant either of its response to a request for time to provide further evidence or of the fact that it would consider documents provided prior to the handing down. Counsel for the first respondent conceded that the applicant had an entitlement to expect that his request would be considered. It is not in dispute that the request was considered. Insofar as the request is regarded as a request for an extension of time to respond to the s.424A letter, as the request was made after the time the Tribunal specified for making such a request and on the last date for reply to the s.424A letter, the applicant had already had the benefit of the entire prescribed period. In those circumstances a formal letter from the Tribunal notifying him of its refusal of his late request would only have confirmed that the time for comment had expired.
The applicant contended nonetheless that the Tribunal was under an obligation to provide an express notification of its decision in relation to his application for time to provide further evidence. An issue also arises as to whether it was obliged to advise that it would take into account any evidence received prior to the handing down of the decision.
Section 422B(1) of the Act provides that Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Section 422B(3) provides however that: “In applying this Division the Tribunal must act in a way that is fair and just”.
The applicant contended that he was not accorded procedural fairness. In one sense this may be seen as a submission that the Tribunal failed to comply with s.422B(3) of the Act, in that the Tribunal failed to advise that any documents he provided prior to the date of handing down would be considered.
The Full Court of the Federal Court has recently considered the scope of s.422B in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83. Relevantly, as counsel for the first respondent pointed out, the Full Court stated in SZMOK (at [15]) that notwithstanding the introduction of s.422B(3), s.422B(1) continues to exclude common law procedural fairness in relation to the matters dealt with by Division 4 except to the extent of the procedural codes set out in that Division. Their Honours stated at [15]:
Section 422B(3) may be understood as an exhortative provision in the same way as s 420(1) is an exhortative provision. Just as s 420 does not create rights or a ground of review, additional to specific rights of review that are expressly given by the Act, so s 422B(3) should not be understood as creating a procedural requirement over and beyond what is expressly provided for in Division 4 (see Eshetu’s Case at [158]).
Given the limited scope of s.422B(3) as an exhortative provision, it cannot be relied upon to create a right of review in relation to the failure by the Tribunal to inform the applicant expressly that it would take into account any material received from him prior to the time at which the decision was handed down. Sections 424A and 424B do not require the Tribunal to address the issue of an extension of time by an express response. Given that the applicant did not ask for an extension of time (as referred to in the letter of 15 August 2008), but informed the Tribunal he would submit “more medical evidence” (expected in “another one or (sic) weeks …”) as soon as he received it, the invitation to the handing down of 11 September 2008 can be taken as a clear indication to the applicant that the Tribunal was not prepared to delay its decision beyond that date to await the documents foreshadowed by the applicant. The Tribunal had an obligation to consider the applicant’s request (whether because of its statement in the letter of 15 August 2008 or because as a matter of fairness it should do so). It did so and by the letter of 2 September 2008 it sufficiently indicated its attitude to the time for provision of “more medical evidence” which the applicant had stated he would submit to the Tribunal as soon he received it. I note that this is not a case in which the applicant indicated that he would try to obtain further evidence if allowed further time, in relation to which it might seem appropriate to await a Tribunal response to the request for further time. Rather the applicant advised that further evidence would be provided.
Even if there were some broader procedural fairness obligation, it is important to note that the documents that the applicant sought further time to provide went to substantiation of his claim that he had been hospitalised following the accident he claimed occurred in January 2004. The Tribunal’s s.424A letter of 15 August 2008 was not the first time that this issue had been raised with the applicant. The delegate of the first respondent had rejected the applicant’s claim to have been hospitalised on the basis, inter alia, of the absence of detail and of supporting documentation such as receipts (in circumstances where he claimed to have paid large bills after being initially denied treatment), doctors’ letters or hospital discharge papers. In its original letter to the applicant on receipt of his review application dated 23 May 2008 the Tribunal invited the applicant to “immediately” send any documents, information or other evidence he wanted the Tribunal to consider. Further, at the hearing on 24 July 2008 the Tribunal asked the applicant whether he had any documentary evidence that he went to hospital in January 2004. It brought to his attention the shortcomings in the document he had provided, which did not say when he was discharged and only stated that he was examined. In its reasons for decision the Tribunal recorded that it specifically brought to the applicant’s attention that there was no evidence in the document from the hospital of his admittance to hospital and that there was only a “suggestion” that he be admitted to hospital. After further discussion about the limits of the information provided, the Tribunal informed the applicant that it was concerned that the hospital did not say that he was in hospital at all and only stated that hospitalisation was recommended and also brought to his attention information about fraudulent documents from China. As counsel for the first respondent pointed out, a further three weeks passed before the Tribunal sent the applicant the s.424A letter on 15 August 2008 and if the response was a request for an extension of time, it was not made by the applicant until after the time provided for by the Tribunal.
Insofar as it might be suggested that inadequate time was given to the applicant to provide evidence in response to the s.424A letter, as in WAAF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 316 (at [23]), it must have been evident to the applicant for some considerable time that documentary evidence supporting his claims about hospitalisation and treatment were matters of some significance (as the hospitalisation was a central issue in relation to his claims) and that it was important to prepare material and evidence to support his claims.
Moreover, as pointed out by the Full Court of the Federal Court in WAAF (at [24]), there is no requirement in s.424A or elsewhere in the Migration Act that an applicant be given an opportunity to gather material in order to deal with the information given in a notice issued pursuant to s.424A. In this case the applicant was given a period of two weeks to respond, which in all the circumstances I am satisfied was sufficient notice and time within which to bring relevant material before the Tribunal.
While the Tribunal did not provide an express response to the reference to more evidence, as indicated above, it notified the applicant that it proposed to hand down its decision on 11 September 2008. Inferentially this addressed the issue, indicating that the Tribunal was not prepared to delay its decision further. Indeed, given that the applicant indicated in his statutory declaration of 29 August 2008 that as soon as he received documents he would submit them to the Tribunal “immediately” and that he expected to wait for “another one or (sic) weeks”, having regard to the period of time that passed before the Tribunal handed down its decision on 11 September 2008, the time sought or indicated would in any event have expired at or about the date of the handing down.
In all the circumstances of this case it has not been established that any of the procedural powers contained in Division 4 were used in a way that was not fair and just (see SZMOK at [18]). As the Full Court stated in SZMOK, s.422B(3) “speaks of how the Tribunal must act in applying Division 4. It is not a free standing obligation, but simply draws content from the other provisions of Division 4” (at [16]). Their Honours went on to state that the “unequivocal statement in s 422B(1) of the exhaustive nature of Division 4 renders it unarguable that some other requirement of fairness are to be implied” (at [17]).
Nor has it been established that some aspect of the common law rules of natural justice not dealt with by Division 4 has been infringed (see Minister for Immigration & Multicultural & Indigenous Affairsv Lat (2006) 151 FCR 214 at [64] – [67] and SZMOK at [10]). That is so notwithstanding that s.422B(1) does not contain a global reference to the conduct of reviews by the Tribunal. If there is any scope for a procedural fairness obligation arising out of the Tribunal’s statement that it would indicate whether an extension of time was granted, there was no lack of procedural fairness in this case, first because the applicant did not request an extension of time within the time specified by the Tribunal and secondly because in any event the Tribunal made it clear to the applicant by its letter of 2 September 2008 that it was not prepared to delay its decision to await the documents anticipated by the applicant beyond 11 September 2008. The Tribunal met its obligation to consider any request for an extension of time or for additional time. It did so in the manner described in its reasons for decision. It has not been established that it erred in the manner in which it did so.
I note that the applicant annexed to his application copies of documents which he said were the medical reports that he had wished to provide to the Tribunal. However even if this material could substantiate the applicant’s case or materially affect the result, it is clear that as the Full Court stated in WAAF (at [26]) “on accepted principles of judicial review … the decision of the RRT is generally to be addressed at the time when it made the decision, having regard to material which was before it at that time”.
It would be for the Minister to consider any application under s.417 of the Act to substitute a decision that was more favourable to the applicant or to allow a further protection visa application pursuant to s.48B of the Act. The further material does not establish jurisdictional error on the part of the Tribunal.
As no jurisdictional error has been established the application must be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 29 July 2009
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