SZMZC v Minister for Immigration

[2009] FMCA 124

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMZC v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 124

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – Tribunal made a legal error in handing down its decision after 15 September 2008 and breached s.430A(1) of the Migration Act 1958 (Cth) but no arguable case of a jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.424A, 425430, 430A, 430B

SZBPF v Minister for Immigration [2005] FCA 1532
SZLWE v Minister for Immigration [2008] FCA 1343

Applicant: SZMZC

First Respondent:

MINISTER FOR IMMIGRATION

& CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3101 of 2008

Judgment of: Driver FM

Hearing date: 23 February 2009

Delivered at: Sydney

Delivered on: 23 February 2009

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Crittenden
Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3101 of 2008

SZMZC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision appears to have been made on 29 September 2008.  I will return to that issue later as it is an issue of some significance.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.  The applicant is from China and had made claims of religious persecution. 

2. The applicant arrived in Australia on 24 August 2007 and applied to the Minister's Department for a protection visa on 8 October 2007.  That application was refused by the Minister's delegate on 3 January 2008 and notified to the applicant the following day.  The applicant sought review by the Tribunal of that decision on 10 April 2008.  The Tribunal was unable to make a favourable decision on the papers and invited the applicant to a hearing.  He attended that hearing on 29 May 2008.  The applicant told the Tribunal that he was unsure whether what was in his protection visa application was accurate because he had signed it without reading it and it had not been translated to him.  In the circumstances, the Tribunal, reasonably and properly in my view, relied upon the oral claims made by the applicant at the Tribunal hearing.  I note that although the applicant was represented by a migration agent before the Tribunal, the representative did not attend the Tribunal hearing.  The applicant was questioned about his claims at the Tribunal hearing.  He claimed to have been an underground Christian in China, but the Tribunal found that his claims lacked credibility.  The Tribunal found that the applicant had difficulty in answering the Tribunal's questions about his experiences in China and changed his evidence during the course of questioning. 

3. The Tribunal concluded that, viewed cumulatively, problems with the applicant's evidence outlined by the Tribunal led it to conclude that the applicant was not a credible witness.  Accordingly, the Tribunal did not accept the applicant's claims concerning past harm in China and found that there was no real chance that the applicant or his wife would attend underground church activities in the future if they were to return to China.  It followed that there was no real chance that the applicant and his wife would be subjected to harm amounting to persecution in China in the future. 

4. These proceedings began with a show cause application filed on 26 November 2008. The applicant continues to rely on that application.  I incorporate in this judgment the three grounds and particulars set out in that application:

   1. The RRT decision was affected by jurisdictional error in that the Tribunal failed to follow the requirements of the Migration Act 1958 [(Cth) (‘the Migration Act’)], s.424A.

   Particulars: The Tribunal rejected the applicant’s credibility on the basis of his difficulty answering the Tribunal’s questions and changes in evidence.  The Tribunal failed to invite the applicant to comment on the difficulty and the changes in evidence.  The applicant claims he had difficulty answering the Tribunal’s questions because he could not understand the interpreter.

   2. The Tribunal did not make a genuine and realistic attempt to make the decision in a bona fide manner in that the Tribunal failed to ask the applicant’s current practice in Australia.  The applicant claims that he is still practicing as a Christian in Sydney but the Tribunal did not ask anything about his current practice.  The applicant claims that the Tribunal should have [given] substantial consideration to his current practice.

   3. The Tribunal did not afford to the applicant the benefit of the doubt when there was no material to the contrary to what was being asserted by the applicant.

5. The application is supported by a short affidavit which I received as a submission.  I have before me as evidence the court book filed on 8 January 2009.  The applicant denied receipt of the court book, although I accept from what the Minister's solicitor told me from the bar table that the court book was sent to the applicant to his address for service by mail on or about 8 January 2009.  There is no explanation for the applicant's non-receipt of the court book other than his statement that he was moving around at the time and that there was some delay in him checking his mail.  The applicant was provided today with a copy of the court book and I explained its contents.  As I explained to the applicant, all of the documents of significance in the court book he would have seen previously and he is not disadvantaged by receiving the court book late. 

6. There is no substance to the asserted grounds of review in the show cause application. Section 424A of the Migration Act did not impose on the Tribunal any obligation to disclose to the applicant in writing its credibility concerns. That was not information for the purposes of the section.

7. The applicant claims also that he could not understand the interpreter at the Tribunal hearing. That goes to the Tribunal's obligation to ensure a fair and effective hearing for the purposes of s.425. There is no evidence of any contemporaneous complaint about interpretation made by the applicant. He told me from the bar table that the problem related to his poor education rather than any defect in interpretation. There is no reason to believe that the standard of interpretation provided by the Tribunal at its hearing was inadequate.

8. The applicant was invited to a hearing as required by s.425 of the Migration Act and attended. It appears from the record of the Tribunal hearing in the Tribunal decision that the Tribunal did enough to ensure that the applicant understood at the hearing the essential and significant issues upon which the review would turn. Those issues were issues of his own credibility. There is no substance to the attack on the Tribunal's bona fides. 

9. Neither is there any substance to the allegation that the Tribunal erred in not asking the applicant about his religious practice in Australia.  On the basis of the available material, the simple fact is that the applicant made no claim in relation to religious practice in Australia, so there was nothing for the Tribunal to consider in that regard.  The Tribunal does not have to ferret out claims that an applicant does not make. 

10. I also reject the assertion that the applicant should have been given the benefit of the doubt.  It is clear from the Tribunal's decision there was no doubt to give the applicant the benefit of. 

11. The only issue in my mind of legal significance concerns the manner in which the Tribunal decision was made and notified. Prior to 15 September 2008, s.430B of the Migration Act required the Tribunal to hand down its decisions in most circumstances. That section was repealed with effect from 15 September 2008. Sections 430 and 430A of the Migration Act in effect from that date now prescribe the procedure for the Tribunal to record and notify its decisions in relevant circumstances:

12. Section 430 states:

    (1)     Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

    (a)     sets out the decision of the Tribunal on the review; and

    (b)     sets out the reasons for the decision; and

    (c)     sets out the findings on any material questions of fact; and

    (d)     refers to the evidence or any other material on which the findings of fact were based.

    (2)     A decision on a review (other than an oral decision) is taken to have been made on the date of the written statement.

    (3)     Where the Tribunal has prepared the written statement, the Tribunal must:

    (a)     return to the Secretary any document that the Secretary has provided in relation to the review; and

    (b)     give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

13. Section 430A states:

    (1)     The Tribunal must notify the applicant of a decision on a review (other than an oral decision) by giving the applicant a copy of the written statement prepared under subsection 430(1). The copy must be given to the applicant:

    (a)     within 14 days after the day on which the decision is taken to have been made; and

    (b)     by one of the methods specified in section 441A.

    (2)     A copy of that statement must also be given to the Secretary:

    (a)     within 14 days after the day on which the decision is taken to have been made; and

    (b)     by one of the methods specified in section 441B.

    (3)     A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.

14. Regrettably, by letter dated 30 September 2008, after the date of commencement of the new provisions, the Tribunal wrote to the applicant inviting him to a purported handing down of the Tribunal decision on 21 October 2008. The applicant was notified of the Tribunal decision by letter dated 21 October 2008, presumably after the purported handing down of the decision. (see court book, pages 71 to 74) The Tribunal decision could not have been made on that date of purported handing down because there was no legislative provision for the handing down of the Tribunal decision by that stage. It follows, in my view, that the Tribunal decision must be taken to have been made on the date that it was signed, namely 29 September 2008. A relevant consequence is that the Tribunal breached s.430A(1) of the Migration Act in failing to notify the applicant of the decision within 14 days after the day on which the decision is taken to have been made. However, I see no jurisdictional significance in that failure having regard to the terms of s.430A(3) of the Migration Act which means, in my view, what is says.

15. I also see no jurisdictional significance in the purported handing down of the Tribunal decision at a time when there was no longer any procedure for the handing down of decisions.  The Tribunal overlooked the change in the legislation, which was a legal error.  But, in my view, such an error of law following the Tribunal decision does not affect the validity of the decision[1].  The error may have a consequence in relation to the time limit for appeals to the courts.  For the avoidance of doubt, on 16 December 2008 I enlarged time for the filing of the present show cause application.  Any disadvantage that the applicant might therefore have suffered from the Tribunal's error has been dealt with. 

    [1] SZBPF v Minister for Immigration [2005] FCA 1532 at [13]; SZLWE v Minister for Immigration [2008] FCA 1343 at [30]

16. I find that there is no arguable case of any jurisdictional error. Accordingly, I dismiss the application, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

17. Costs should follow the event in this case.  The Minister seeks an order for costs fixed in the sum of $2,000.  Scale costs in this instance would be $2,500.  The applicant did not wish to be heard on costs.  I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application fixed in the sum of $2,000. 

Addendum

1. Since giving oral judgment in this matter, my attention has been drawn to the fact that Schedule 1 to the Migration Legislation Amendment Act (No 1) 2008 (which contains the relevant amendments to the Migration Act dealt with above at [11]-[15]) did not commence operation on the date of Royal Assent to the Amendment Act as I had thought. Rather, the relevant amendments commenced operation on 27 October 2008 pursuant to a proclamation by the Governor-General. It follows that my reasoning at [11]-[14] above was based on a false premise and that there was no error by the Tribunal. The reasoning at [15] becomes hypothetical but I maintain those views.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  27 February 2009