SZMYU v Minister for Immigration

[2017] FCCA 357

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZMYU v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 357

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal’s decision fell into jurisdictional error in considering both the complementary protection criterion and refugee criterion – whether the Tribunal failed to comply with its obligation under s.424A(1) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 48A, 424A

Migration Amendment (Complementary Protection) Act 2011 (Cth)

Cases cited:

AMA15 v Minister for Immigration & Border Protection (2015) 244 FCR 131; [2015] FCA 1424
AOM15 v Minister for Immigration & Border Protection [2015] FCA 1285

AYZ15 v Minister for Immigration & Border Protection [2017] FCA 77
Minister for Immigration & Citizenship v You [2008] FCA 241

Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127

Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board [1994] 1 SCR 202
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71

SZQTJ v Minister for Immigration & Border Protection [2015] FCCA 3226
SZVCH v Minister for Immigration & Border Protection (2015) 303 FLR 403; [2015] FCCA 2950

Applicant: SZMYU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1681 of 2016

Judgment of: Judge Smith

Hearing date: 20 February 2017

Date of Last Submission: 20 February 2017

Delivered at: Sydney

Delivered on: 10 March 2017

REPRESENTATION

Counsel for the Applicant: Mr O Jones

Solicitors for the Applicant: Unisaj Pty Ltd

Solicitors for the Respondents: Ms G. Doyle, Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1681 of 2016

SZMYU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Lebanon who arrived in Australia on 23 June 2004. On 20 December 2004, she lodged an application for a protection visa which was refused by a delegate of the Minister on 12 March 2005. The delegate’s decision was affirmed by the Refugee Review Tribunal[1] on 23 August 2005.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. The protection visa application was based upon the claim that the applicant satisfied the criterion in sub-s.36(2)(a) of the Migration Act1958 (Cth), namely, that she was a refugee (“refugee criterion”).

3. On 24 March 2012, a new criterion was introduced in respect of protection visas by operation of the Migration Amendment (Complementary Protection) Act 2011 (Cth) (“complementary protection criterion”). Although a person who has already applied for a protection visa is ordinarily unable to make a valid application for a further protection visa, the applicant was able to make a valid application for a protection visa on 18 March 2014 claiming that she satisfied the complementary protection criterion: SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235; [2013] FCAFC 71.

4. The applicant based the second protection visa application on a number of claims including that she was a single widowed woman with no relatives nearby to check on her and with no male protection.

5. On 9 September 2014, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate made the decision by reference to both the complementary protection criterion, as well as the refugee criterion. The applicant applied to the Administrative Appeals Tribunal for review of that decision on 1 October 2014.

Tribunal’s decision

1. The Tribunal made its decision to affirm the delegate’s decision on 27 May 2016. At that time there was some controversy as to whether the Tribunal was required to consider both the refugee criterion as well as the complementary protection criterion in circumstances where, as here, there had been a previous application based upon the refugee criterion but the delegate had addressed both criteria: SZVCH v Minister for Immigration & Border Protection (2015) 303 FLR 403; [2015] FCCA 2950; SZQTJ v Minister for Immigration & Border Protection [2015] FCCA 3226; AOM15 v Minister for Immigration & Border Protection [2015] FCA 1285; AMA15 v Minister for Immigration & Border Protection (2015) 244 FCR 131; [2015] FCA 1424. In the first of these cases, Judge Driver found that the Tribunal was obliged to consider both criteria. The other decisions were that the Tribunal was not obliged to do so.

2. The Tribunal explained that controversy in its reasons at [38]–[41] and expressed the view that the applicant’s claims were only to be considered in respect of the complementary protection criterion. It went on to state:

   [43]However, the Tribunal notes that SZVCH is listed for hearing at the Federal Court in May 2016. In that case the applicant is pursuing the argument that the Tribunal should also consider claims under all criteria once a second protection visa application has been lodged. In the circumstances, the Tribunal has made alternative findings below on the basis of the refugee criterion in s.36(2)(a) of the Act.

   …

3. The Tribunal then proceeded to determine both the refugee criterion and the complementary protection criterion. It was not satisfied that either of those criteria was satisfied and so affirmed the decision under review.

4. On 14 September 2016, the Full Court of the Federal Court of Australia gave judgment in Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127 (“SZVCH”). The Full Court allowed the Minister’s appeal from the decision of Judge Driver, finding that the Tribunal was required to decide the correct statutory question which, by reason of s.48A, was in that case, whether the Tribunal was satisfied that the visa applicant met the complementary protection criterion.

Consideration

1. The applicant argues that, in light of the decision of the Full Court in SZVCH, the Tribunal fell into jurisdictional error by considering both the complementary protection criterion as well as the refugee criterion.

2. The applicant relies upon the following passages in the judgment of Mortimer J:

   [113]The consequence is that for the delegate to consider the first respondent’s further application for a protection visa against the criterion in s 36(2)(a) was to exceed the jurisdiction conferred on the delegate by s 65 of the Act. To put it another way, the statutory task of the delegate under s 65 did not include consideration of the first respondent’s further application for a protection visa against the criterion in s 36(2)(a) of the Act. Insofar as the Federal Circuit Court concluded the delegate had such jurisdiction (whether as a matter of election, discretion or however it might be described), that conclusion was incorrect.

   [114]When the matter came before the Tribunal, the effect of the terms of ss 414 and 415 of the Act was that the Tribunal was required to review the decision of the delegate, in the manner described by French CJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [10]. However, like the delegate, its duty under s 65 was circumscribed by the limited validity of the further protection visa application. For it too, to consider the first respondent’s further application for a protection visa against the criterion in s 36(2)(a) would have been to exceed the jurisdiction conferred on it in the circumstances by s 65 of the Act. To put it another way, the statutory task of the Tribunal under s 65 did not include any review of the delegate’s assessment of the first respondent’s further application for a protection visa against the criterion in s 36(2)(a) of the Act. The Tribunal was correct in the way it approached the limits of its jurisdiction, and the Federal Circuit Court was incorrect to set aside its decision.

3. The applicant’s argument, simply put, was that acting in excess of jurisdiction is a jurisdictional error, the result of which, is that the decision of the Tribunal must be set aside.

4. The reasons of Mortimer J, however, do not constitute the reasons of the majority of the Full Court in SZVCH. The majority reasons are found in the judgment of Kenny, Siopis and Besanko JJ. Their Honours did not go quite so far as Mortimer J. Their critical reasoning was in the following passage:

   [39]For the purpose of review, the Tribunal can exercise “all the powers and discretions that are conferred by [the Migration] Act on the person who made the decision”. Equally, unless the Migration Act provided otherwise, the Tribunal cannot have any powers and discretions that were not conferred on the delegate. The powers conferred on the Tribunal by s 415(2) indicate, moreover, that, in undertaking a review of the delegate’s decision, the Tribunal must give “a fresh consideration” to the application that led to the delegate’s decision: see Minister for Immigration v Li [2013) HCA 18, 249 CLR 332 at [10]. In so doing, it is incumbent on the Tribunal to identify in its own mind the issues that arise on that application, as indeed the Tribunal did in this case. It is not the case that the Tribunal is required to review on the merits that part of a primary decision that the primary decision-maker had no power to decide and did not bear on the decision that the primary decision-maker was required to make by reference to the criterion on which the application was validly based. Rather, the Tribunal is obliged to decide the correct statutory question, which by reason of s 48A, was in this case whether it was satisfied that the visa applicant met the complementary protection criterion in s 36(2)(a) (or (c)).

5. Dowsett J agreed with the reasons of both the plurality and Mortimer J.

First Ground

1. The Tribunal’s duty then, was to consider whether it was satisfied that the complementary protection criterion was satisfied by the applicant. Subject to the second ground in the application for judicial review, the applicant did not suggest that the Tribunal’s exercise of that duty was in any way affected by its consideration of the extraneous determination of the refugee criterion. Nevertheless, the applicant argued that the decision should be set aside.

2. That argument cannot be accepted. It may have been an error for the Tribunal to consider the refugee criterion; however, in order to establish that that error amounts to jurisdictional error sufficient to justify an order setting aside the decision of the Tribunal, it must be shown that the error affected the Tribunal’s exercise of its duty. That has not been shown in this case and the ground must be rejected.

3. Alternatively, even if consideration of the refugee criterion did amount to jurisdictional error, given the Tribunal’s conclusion in respect of the complementary protection criterion, there was only one decision available to it; namely, to affirm the decision of the delegate. For that reason, any relief ought to be refused on a discretionary basis: see for example SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26; Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board [1994] 1 SCR 202; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57.

Second Ground

1. The second ground in the application is that the Tribunal failed to comply with its obligation under s.424A(1) of the Act. That provision requires the Tribunal to give to the applicant clear particulars of any information that it considers would be the reason, or a part of the reason, for affirming the decision that is under review. That obligation is subject to a number of exceptions and, in particular those found in s.424A(3) of the Act which provides:

   (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.

2. The applicant attended an interview with the delegate during which she said that she had two sisters-in-law who lived in the family village in Lebanon. The Tribunal listened to a recording of that interview and referred to the applicant’s statement concerning her sisters-in-law in its reasons: [64], [70], [71], [141] and [142].

3. The applicant argued that, as the information about her sisters-in-law was given orally by her to the Department, it did not fall within the exception found in sub-s.424A(3)(ba) of the Act. So much may be accepted. However the information, as noted by the Tribunal at [64], was also contained in the delegate’s statement of reasons, a copy of which was given by the applicant to the Tribunal. In Minister for Immigration & Citizenship v You [2008] FCA 241 Sundberg J explained at [16] that where information is contained in the delegate’s decision and the applicant gives that decision to the Tribunal, that the information falls within the exception contained in sub-s.424A(3)(b): see also AYZ15 v Minister for Immigration & Border Protection [2017] FCA 77 at [42]. For that reason, the obligation in s.424A(1) did not apply to the information.

4. The applicant argued that there were two reasons for which there remained an obligation under s.424A(1):

   i)the Tribunal obtained the information from the recording of the delegate’s interview as well as from the delegate’s decision; and

   ii)given that the obligation under s.424A(1) is one of procedural fairness, the exceptions in s.424A(3) should be construed so that the exception in sub-s.424A(1)(b) does not apply where the qualification to the exception in sub-s.424A(3)(ba) arises.

5. The first of these arguments conflates the source of the information with the information itself. Although the source of information can itself amount to information within the meaning of s.424A(1), it is ordinarily distinct from the information which is the subject of the obligation in that provision. Thus, the Tribunal does not have to give the applicant particulars of information given by the applicant even if it had also obtained it from another source.

6. The second argument must also be rejected. The exceptions in s.424A(3) are expressed to be in the alternative: “… or …”. The plain meaning of the provision then, is that only one exception has to be made in order for the information to be excluded from the operation of s.424A(1). There is no ambiguity and the language is intractable. For that reason, it does not matter whether, or the reasons for which, information does not fall within any particular exception. If it falls within any other exception, s.424A(1) does not apply to it.

7. For those reasons the second ground is rejected.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     10 March 2017