SZMZT v Minister for Immigration
[2009] FMCA 420
•14 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMZT & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 420 |
| MIGRATION – Visa – Protection (Class XA) visa – review of decision of Refugee Review Tribunal – citizens of China claiming well-founded fear of persecution on the ground of religion – whether Tribunal did not consider the applicants’ claims fairly – whether applicants engaged in conduct in Australia by going to church for a reason other than to strengthen their refugee claims – credibility – where a part of the Tribunal hearing was not recorded due to a technical fault – whether Tribunal should have scheduled a further hearing – no error in a failure to obtain a sound recording of the hearing – where second applicant made a claim as a Part D applicant – where second applicant claimed as a member of the first applicant’s family unit – where Tribunal did not address the second applicant’s claim for a protection visa under Migration Act 1958 s.36(2) – jurisdictional error – futility – discretionary refusal of relief. |
| Migration Act 1958 (Cth), ss.36, 91R, 91X, 424A, 425, 430, 474, 476 |
| SZLSP & Anor v Minister for Immigration & Anor [2008] FMCA 950 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Minister for Immigration and Ethnic Affairs (1996) 185 CLR 259 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 |
| First Applicant: | SZMZT |
| Second Applicant: | SZMZU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3152 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 21 April 2009 |
| Date of Last Submission: | 21 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 14 May 2009 |
REPRESENTATION
| Counsel for the Applicants: | The Applicants appeared in person |
| Solicitors for the Applicants: | No solicitor on the record |
| Counsel for the Respondents: | Mrs Sirtes |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicants are to pay the First Respondent’s costs fixed in the sum of $4,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3152 of 2008
| SZMZT |
First Applicant
| SZMZU |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicants, who are citizens of China, ask the Court to review a decision of the Refugee Review Tribunal made on 6th November 2008, affirming a decision not to grant them protection visas. They ask for orders in the nature of certiorari and mandamus, to set aside the Tribunal decision and remit their application to the Tribunal for determination.
The Applicants rely on two grounds of review:
(1) We were not considered fairly by RRT. They did not weigh our evidence both here and in China. We did not go to church to strengthen our refugee claims. We serve God in our life.
(2) The RRT thought we are the shouters of church though we told judge we are not. RRT made decision on us lacking knowledge in shouters.
The Minister for Immigration and Citizenship has filed a Response claiming that the application for judicial review does not establish any jurisdictional error in the Tribunal decision.
Background
The Applicants, who are wife and husband respectively, arrived in Australia on 6th March 2008. They applied for Protection (Class XA) visas on 18th April 2008. The wife, who is the First Applicant, sought protection on the ground of religious belief. In a statement attached to her visa application, the First Applicant claimed to be a Christian and a member of an unregistered “family church”. She claimed to have been arrested on 26th May 2005 and detained for 15 days, during which time she was questioned and tortured.
The First Applicant claimed that she was released after her husband paid a fine. They decided to leave China. They sent their daughter to Australia as a student. The First Applicant’s sister in law sponsored the Applicants to come to Australia, which they did on 6th March 2008.[1]
[1] Court Book 37 - 38
The Second Applicant, who is the husband, has made no separate refugee claim of his own. He is a Part D Applicant, relying on his membership of his wife’s family unit.
A delegate of the Minister refused the applications for a protection visa on 11th July 2008. The delegate referred at some length to country information about freedom of religion in China and procedures for departure from the People’s Republic of China in the Protection (Class XA) visa Decision Record. The delegate noted that the First Applicant left China legally on a passport issued in her own name. The delegate found that a person in the position of the First Applicant would face difficulties in obtaining a passport. The delegate found it “very unlikely” that such a person would be allowed to leave the country.
The delegate made these findings:
Having considered all of the above evidence before me, I find that the applicant’s alleged profile and the adverse attention she claims (s)he received is inconsistent with independent country information that indicates such a person would be prevented from leaving China. The ability to practice Christianity is not prohibited although the above cited country information indicates there are limitations. I also note that while the applicant indicates that her whole family is at risk she has not included her daughter in her protection visa application and her husband has signed that he has no claims to be a refugee. This contradicts the principal applicant’s statement. I am not satisfied that she has faced these limitations.[2]
[2] Court Book 55
After their applications were refused, the Applicants applied to the Refugee Review Tribunal for review of the delegate’s decision.
Application to the Refugee Review Tribunal
The Applicants lodged their application for review at the Sydney Registry of the Refugee Review Tribunal on 6th August 2008. The application shows that they were represented by a migration agent,
Ms Weiming Qian of the Good Fortune Co in Auburn, New South Wales. They did not provide any additional documents to the Tribunal when they lodged their application.
The Tribunal wrote to the Applicants’ migration agent on 18th August 2008, inviting them to attend a hearing to take place on 23rd September 2008. On 20th August the migration agent forwarded a number of documents to the Tribunal, including a Detention Release Certificate, some letters and some photographs. The letters and the photographs related to the Applicants’ church attendance in Australia.
The Applicants attended the hearing on 23rd September, where they gave evidence with the assistance of an interpreter in the Fuqing dialect of Chinese. They produced their Chinese passports and a photograph.
On 24th September 2008 the Tribunal provided to the Applicants’ migration agent a copy of the recording of the Tribunal hearing on
23rd September.[3]
[3] Court Book 86
On 25th September 2008 the Tribunal wrote to the Applicants’ migration agent. The letter was headed “Invitation to Comment on or Respond to Information in Writing” and was couched in terms to indicate it was intended to comply with the provisions of s.424A of the Migration Act 1958. The letter sought the Applicants’ comments on certain information.
First, the Tribunal’s letter referred the Applicants’ initial typed statement, saying:
In that statement, no mention was made of the Local Church or any of the teachings or the leadership of that Church. The statement only refers to your attendance at a “Family Church”. Your application forms also only state that you are Christian and do not state that you are members of the Local/Shouter church.[4]
[4] Court Book 87
The Tribunal’s letter told the Applicants that the information was relevant because the Applicants had claimed at the hearing to be members of the Local/Shouters Church, which is banned in China and has distinctive beliefs and practises. The letter said that the Tribunal may not find it credible that the Applicants would not state that on their application form that they were members of the Local/Shouter Church.
The Tribunal’s letter drew the Applicants’ attention to their claim at the hearing that they were only able to leave China by bribing customs officials and paying 20,000 yuan. The letter said that the information was relevant because the Tribunal may not believe that it was not believable that the Applicants’ would not make this significant claim in their application to the Department.
The Tribunal’s letter also drew the Applicants’ attention to the Department’s records that showed that the Applicants had first applied for Visitor visas in January 2007 and their daughter had been studying in Australia since August 2005. The Tribunal’s letter said the information was relevant because:
(T)he Tribunal may find that it is not credible that you did not at least make some steps depart China soon after the claimed detention in May/June 2005. The Tribunal may find that your failure to make any steps to depart China until some 18 months (i.e. until the first application for a Visitor visa was made in January 2007) after the claimed detention is not consistent with your claim that you (the first applicant[5]) were detained, interrogated and tortured and is not indicative of any genuine or well founded fear of harm in China.[6]
[5] Name not published to comply with Migration Act 1958 s 91X
[6] Court Book 88
The Tribunal’s letter also drew the Applicants’ attention to other matters which may lead to rejection of their application:
a)the Applicants’ failure to leave China until March 2008 when their visa had been granted on 8th January;
b)the possibility that the Tribunal might find that the Applicants had only participated in Local Church activities in Australia for the purposes of strengthening their claims to be refugees; and
c)their “extremely limited knowledge of the Local/Shouters Church beliefs and practises as exhibited at the Tribunal hearing”.[7]
[7] Ibid
The Tribunal’s letter invited the Applicants to give their comments or responses in writing by 21st October 2008.
The Applicants provided a typed statement in response to the Tribunal’s letter dated 19th October 2008. In that statement the First Applicant stated that:
i)She never claimed to be a member of the Shouter church. She listened to her “tape” of the hearing and did not find any claim by her to be a member of the Shouter church. She only answered questions about the Shouter church because the Tribunal asked her.
ii)The First Applicant stated that she paid RMB 20,000 to her friend in case they had trouble going through customs at the airport when they left China. The Applicants left China legally.
iii)In reply to the query about why it took the Applicants some 18 months before they attempted to leave China they claimed that they tried to go overseas but had no chance of success, so later their sister sponsored them to come to Australia.
iv)In reply to the information about the delay of several weeks after obtaining their visas until they left China the Applicants stated that after they got their visas whey were worried about going through customs. They needed money to pay their friend so they borrowed the money to pay to their friend in case they had trouble going through customs.
v)The Applicants denied that they had participated in Local Church activities solely to strengthen their refugee claims. They claimed that the attended Church to worship God and listen to God’s words.
The Applicants asked the Tribunal for another hearing:
We strongly hope you could schedule another time for us to give evidence about our activities and suffering in China at RRT hearing. We could give you our knowledge about Bible, our local church gathering and Christianity.[8]
[8] Court Book 91
They Applicants attached a letter from the Second Applicant’s sister, who had sponsored them to come to Australia. The sister’s letter claimed that the Applicants were Christians and were baptized in China.[9]
[9] Court book 92
There is a file note dated 6/11/08 in the Court Book from the Tribunal Member, referring to a conversation with a member of the Tribunal’s IT staff about problems with the recording of the Tribunal hearing:
He confirmed that there are technical problems and parts of the recording are missing. He has sent CD rom to external agency for advice as to what may have occurred during the hearing.[10]
[10] Court Book 93
The Tribunal signed and handed down its decision on 6th November 2008. The Tribunal affirmed the decisions not to grant the Applicants Protection (Class XA) visas.
The Refugee Review Tribunal Decision
The Tribunal set out in its Decision Record a detailed summary of the material it considered, under the heading Claims and Evidence. The material was:
a)The Departmental file, including the protection visa application and the delegate’s decision record;
b)The First Applicant’s statement in support of her application;
c)The documents provided to the Tribunal in support of the review application;
d)The Applicants’ evidence at the Tribunal hearing;
e)The Tribunal’s s.424A letter to the Applicants and their response; and
f)Independent evidence about the Local Church, or Shouters.
The Tribunal’s Findings and Reasons
The Tribunal accepted that the Applicants are nationals of China on the basis of their passports, and assessed their claims against that country.
Whilst the Tribunal noted that the Second Applicant had completed Part D of the application form as a member of the First Applicant’s family unit, it found that he was also claiming to be a Christian whose religious freedom had and would be restricted in China.
The Tribunal comprehensively rejected the Applicants’ claims on the basis of a lack of credibility, stating:
The Tribunal does not accept any of the applicants’ claims. The Tribunal does not accept that the applicants are credible witnesses and does not accept that they have given truthful evidence to the Department and the Tribunal in relation to their religious beliefs. Nor does the Tribunal accept that they have given a truthful account of their experiences in China or their reasons for leaving China.[11]
[11] Court Book 108 at [62]
The Tribunal then set out its reasons.
First, the Tribunal did not accept the Applicants’ claim that they were not aware that they were claiming to be members of the Local/Shouter church during the hearing. The Tribunal noted the documents provided by the Applicants from the Local Church in Sydney.
The Tribunal noted that the Applicants exhibited a very limited understanding of any type of Christianity at the hearing.
The Tribunal did not accept that the Applicants were members of the Local Church or Shouter Church or any underground church in China, or that they had any involvement with any underground churches. The Tribunal did not accept the genuineness of the documents provided to it about the First Applicant’s claimed baptism or detention.
The Tribunal did not accept that it was credible that the First Applicant would be the subject of detention, interrogation and torture in China in 2005 but not make any attempts to leave until the beginning of 2007.
Further, the Tribunal noted that the Applicants had not previously claimed that they had to bribe an official by paying 20,000 yuan until the hearing and considered that this claim was “manufactured at the Tribunal hearing”.[12]
[12] Court Book 111 at [68]
The Tribunal then went on to consider the Applicants’ conduct in Australia, being their attendance at the Local Church in Sydney. The Tribunal did not accept that the Applicants were genuine members of the Local Church and formed the view that the Applicants’ conduct in attending and participating in Local Church activities was for the primary purpose of strengthening their claim to be refugees. Accordingly, the Tribunal disregarded that conduct in accordance with s.91R(3) of the Migration Act.
The Tribunal then went on to consider whether the Applicants would have a well founded fear of persecution upon their return to China, based on their activities in Australia:
However, s.91R(3) only obliges the Tribunal to disregard an applicant’s conduct in Australia in assessing whether that applicant has a well founded fear of persecution. There fore, the Tribunal must still consider whether the applicant wife’s conduct in Australia in participating in Local Church activities will result in a well founded fear of persecution for the applicant husband upon his return to China. Conversely, the Tribunal must also consider whether the applicant husband’s conduct in Australia in participating in Local Church activities will result in a well founded fear of persecution for the applicant wife upon her return to China.[13]
[13] Court Book 111 at [70]
The Tribunal referred in this regard to SZLSP v Minister for Immigration and Citizenship.[14] The Tribunal considered that the parties’ attendance at the Local Church to be “cursory”. It was not satisfied, in either case, that the Applicants’ individual attendance at the Local Church would result in a real chance of harm for each other of them for reasons of religion, membership of a particular social group of family or any other Convention reason upon return to China.
[14] [2008] FMCA 950
The Tribunal then went on to consider the Applicants’ request for another hearing, saying:
As indicated above, the Tribunal has considered the applicant’s (sic) request for a further Tribunal hearing. The Tribunal is strongly of the view that it did not misconstrue the applicants’ claims and has found the applicants’ denial of their claims as made at the Tribunal hearing to be indicative of a misguided attempt to overcome the highly problematic nature of their evidence…The Tribunal is satisfied that it has discharged its obligations to provide the applicants with an opportunity to present evidence and arguments and is not satisfied that a further opportunity to do so is warranted.[15]
[15] Court Book 112 at [71]
The Tribunal was not satisfied that the Applicants held any genuine or well-founded fear of any harm for a Convention Reason should they return to China. Accordingly, it was not satisfied that the Applicants were people to whom Australia has protection obligations under the Refugees Convention, and therefore they did not satisfy the criterion set out in s.36(2)(a) for a protection visa.
Application for Judicial Review
The Applicants filed their application and affidavit in support on
1st December 2008. They have not filed an amended application. They did not file any written outline of submissions, but they attended Court and both made oral submissions.
Their grounds of review are:
(1) We were not considered fairly by RRT. They did not weigh our evidence both here and in China. We did not go to church to strengthen our refugee claims. We serve god in our life.
(2) The RRT thought we are the shouters of church though we told judge we are not. RRT made decisions on us lacking knowledge in shouters.
In reply to a question from the bench as to why they claimed they had not been treated fairly, the First Applicant said that she was detained and she had a certificate to that effect. She said she would die of she went back to China.
The Second Applicant submitted that he was a Christian and a member of the church. He said that the Tribunal did not believe his evidence about what had happened in China. He complained that the Tribunal had not considered their evidence about their activities in Australia because the Tribunal said it was just done to strengthen his application for a protection visa. Curiously, he said:
I had evidence that I was persecuted in China; I was detained in China.[16]
[16] A transcript of the hearing was ordered and this statement appears at page 3, lines 39 and 40
The statement is curious because it was not part of the Applicants’ claim that the husband had ever been detained.
The Second Applicant said that the RRT had different reasons, all the reasons to reject his application. To conclude, he said that the rejection was not fair.
The First Applicant appeared to be distressed, so the Court adjourned for some minutes to allow her to regain her composure.
Upon resumption of the hearing, the First Applicant submitted that the Tribunal decision was not fair. She referred to a number of matters that went to the merits of her refugee claim and so could not be considered by the Court, including her inability to obtain work to support her family.
The First Applicant again became distressed and another adjournment was taken to allow her to regain her composure.
When the hearing resumed, the First Applicant told the Court that the RRT was not fair because it did not believe her. When asked to elaborate on why the Refugee Review Tribunal was not fair, the First Applicant repeated the words “not fair”[17] and said that she would kill herself.
[17] Transcript page 6, line 9
After the Court heard a submission from counsel for the Minister, the Court heard submissions in reply from the Applicants. The First Applicant said that it is hard to survive without a work permit. She went on to say that without a work permit she would not survive, she would die in Australia.
The Second Applicant said that he and his wife were separated at the Tribunal hearing. His wife went in first. He went on to say:
They never told me; when I entered the room she[18] told me that she believed that my wife was Christian but why in the decision she said that she didn’t believe that.[19]
[18] i.e. the Tribunal Member
[19] Transcript page 15 lines 1 - 3
The First Respondent’s Submissions
Counsel for the Minister, Mrs Sirtes, submitted that the Applicant’s first ground sought to go to the merits of the Tribunal’s decision and should be dismissed.
As to the Applicants’ second ground of review, Mrs Sirtes submitted that the Tribunal’s findings were valid when it found:
(a)the first time that the Applicants asserted that their claims at the hearing did not pertain to membership of the Shouter Church was in response to the Tribunal’s s.424A letter;
(b)upon receiving the Applicants’ response to the s.424A letter, the Tribunal Member listened to the CD of the hearing and discovered that approximately 40 minutes of the hearing had not been recorded; and
(c)the Tribunal Member satisfied herself from her own notes that the shouter claims had been made orally at the hearing
Further, the Tribunal considered the Applicants by reference to their general knowledge of Christianity and not just by reference to the Shouter Church. It did not accept that the Applicants were members of the Local Church/Shouter Church or any underground Church in China.
Again, it was submitted that the lack of recording of part of the Tribunal hearing, whilst unfortunate, is not an error. The Tribunal’s contemporaneous written notes of the hearing showed that the Applicants’ claims had been expressed as stated.
In oral submissions, Mrs Sirtes submitted that it is clear that the Tribunal lasted for some three hours and the evidence about the Shouters appeared to have been discussed throughout the hearing. When it was ascertained that part of the Tribunal hearing had not been recorded, the Tribunal consulted her detailed notes of the hearing and was satisfied that her summary of the oral evidence accurately records the evidence that was given. She further submitted that there was no breach of s.425 of the Act insofar as a fair hearing was concerned. There is no requirement that the hearing should be recorded at all. Section 430 of the Act does not require it.
The Tribunal’s decision clearly encompassed the Applicants’ general claims of Christianity. The very matters that the Applicants claimed ought to have been considered were in fact considered.
Mrs Sirtes therefore submitted that, as there is no jurisdictional error, the Tribunal decision is a privative clause decision for the purpose of s.474 of the Act (see Plaintiff S157/2002 v Commonwealth of Australia[20] at [76]).
[20] (2003) 211 CLR 476
Conclusions
The Applicants rely on two grounds of review.
Their first ground of review is that they were not considered fairly by the Refugee Review Tribunal. The Tribunal did not weigh their evidence of their experiences both in Australia and in China. They did not go to church to strength their refugee claims. They serve God in their lives.
This ground is no more than an attempt to obtain review of the merits of the Applicant’s refugee claims. The Court has no jurisdiction to conduct merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang[21]at 272). The Applicants’ claim that their application was not considered fairly is not a claim of bias in any form but, as they made clear at the hearing, a complaint that the Tribunal did not believe their evidence. The assessment of a witness’s credibility is a matter of fact and is a matter for the administrative decision-maker, in this case the Refugee Review Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[22]at [67]). In this case, the Tribunal set out in some details its reasons for not accepting that the Applicants were credible witnesses, at paragraphs [63] to [68] of its decision.[23]
[21] (1996) 185 CLR 259
[22] (2000) 168 ALR 407; [2000] HCA 1
[23] Court Book 108 to 111
No jurisdictional error appears in the Applicants’ first ground.
The Applicants’ second ground complains that the Tribunal wrongly believed that the Applicants were members of the Shouters Church even though they had told the Tribunal that they were not. The Applicants asked for another hearing.
After the Tribunal read the Applicants’ response to the Tribunal’s s.424A letter, the Tribunal Member listened to the recording of the hearing and discovered that there had been a technical problem and a part of the hearing had not been recorded. The Tribunal stated:
…The hearing recording revealed that there had been technical problems during the hearing and parts of the hearing were deleted from the recording. Thus, the hearing record is missing approximately 40 minutes.
55.The Tribunal considered the request for a further hearing following receipt of the Tribunal’s (sic) letter. The Tribunal considered that it held a lengthy hearing with the applicants and is satisfied that they had every opportunity to discuss their claims and that the Tribunal discharged its obligations pursuant to s.425 of the Act.[24]
[24] Court Book 106 at [54] – [55]
In its Findings and Reasons the Tribunal stated:
The Tribunal accepts that parts of the recording are missing from the CD-rom that was provided to the applicants, but does not accept that the applicants were not fully aware that they were claiming to be members of the Local/Shouter church during the Tribunal hearing. The Tribunal is satisfied, on the basis of its detailed notes that were taken during the Tribunal hearing and written into the evidence part of the Tribunal’s decision record immediately following that hearing, that the above record of the applicants’ oral evidence given during the Tribunal hearing is accurate.[25]
[25] Court Book 109 at [63]
There are two issues for consideration. First, in the light of the fact that approximately 40 minutes of the Tribunal hearing was sound recorded, is it an error on the part of the Tribunal not to have scheduled a further hearing?
In my view, there was no need for the Tribunal to schedule a further hearing. Whilst is unfortunate that the sound recording equipment did not record a portion of the Tribunal hearing, this did not compromise the hearing. The Tribunal Member had taken detailed notes and was confident that the Applicants’ evidence had been recorded in contemporaneous written notes.
There is no requirement in either s.425 or s.430 of the Migration Act that the hearing should be recorded. Section 430 of the Act requires the Tribunal to prepare a written statement that sets out the decision, the reasons, the findings on material questions of fact and refers to the evidence and any other material on which the findings of fact were based. There is no requirement for a sound recording or a transcript of the hearing.
The Tribunal did not fall into error, certainly not any jurisdictional error, in declining to schedule a further hearing.
The second issue is whether the Tribunal fell into error by misunderstanding the Applicants’ claim, by proceeding on the basis that they had claimed to be members of the Shouters Church when they denied that they were. The Tribunal had made detailed contemporaneous written notes of the Applicants’ evidence at the hearing to the effect that they claimed that they were members of the Shouters or Local Church. The Applicants had produced documents to the Tribunal from the Local Church in Sydney confirming that they had been meeting regularly with the church “since March 6, 2008”.[26] I note that 6th March 2008 is the date of the Applicants’ arrival in Australia.[27]
[26] Court Book 66 - 67
[27] Court Book 14
The Tribunal did not misunderstand or misconstrue the Applicants’ claim. In any event, it found that the Applicants’ knowledge of Christianity generally was limited and found that it was not satisfied that the Applicants were associated with underground Christianity in China or that they had any involvement with Christianity in the past.[28] The Tribunal considered the Applicants’ claim generally and rejected it. The Tribunal did not fall into error in doing so and the Applicants’ second ground fails.
[28] Court Book 112 at [72]
The Second Applicant was a Part D Applicant, that is, he applied as a member of the First Applicant’s family unit. The Tribunal acknowledged that fact, but also noted that he made a claim to be a Christian on his own behalf as well. The Tribunal stated:
In these circumstances, the Tribunal finds that he made an application both on the basis of his claim to be a member of the family unit and a person to whom Australia has protection obligations.[29]
[29] Court Book 108 at [60]
However, the Tribunal only assessed his claim on the basis of his having a claim as a person to whom Australia has protection obligations under the Refugees Convention. It found that both Applicants did not satisfy the criterion set out in s.36(2)(a) of the Act for a protection visa.
The Tribunal seems to have overlooked the Second Applicant’s claim as a Part D Applicant, a member of the family unit of the First Applicant. Strictly speaking, the Tribunal should have made a finding as to whether the First Applicant met the other criterion for a protection visa under s.36(2)(b) of the Migration Act.
The alternative criterion for a protection visa under s.36(2)(b) is that the Applicant is:
(a) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.
The Tribunal did not address that claim.
Whilst this appears to be a jurisdictional error, it would be futile to grant relief on this basis. As the Tribunal found that the First Applicant was not a person to whom Australia has protection obligations under the Refugees Convention, the Second Applicant could not meet the criterion in s.36(2)(b) of being the spouse or dependant of a person to whom Australia has protection obligations and holds a protection visa.
Because the Second Applicant could not meet that criterion under s.36(2)(b), it would be futile to remit his Part D application for a visa to the Tribunal, because the Tribunal would have no option but to affirm the decision not to grant him a protection visa. Accordingly, relief is refused in the exercise of the Court’s discretion.
There is no other arguable claim of a jurisdictional error.
The application will be dismissed.
The Court will hear submissions as to costs.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 7 May 2009
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