SZMZX v Minister for Immigration
[2009] FMCA 343
•8 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMZX v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 343 |
| MIGRATION – RRT decision – Chinese applicant claiming political persecution – disbelieved by Tribunal – no jurisdictional error affecting reasoning of Tribunal – Tribunal obtained student visa application from Department of Immigration – whether required to follow s.424(2) formalities – whether jurisdictional error arising from irregularity – discretion to refuse relief where procedural error was without any significance – application dismissed. |
| Migration Act 1958 (Cth), ss.418, 424, 424B, 441A |
| Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 Evans v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 135 FCR 306 Minister for Immigration & Citizenship v Le (2007) 164 FCR 151 Minister for Immigration and Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 NADH of 2001 vMinister for Immigration & Multicultural & Indigenous Affairs (2005) 214 ALR 264 Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 Re RRT & Anor; Ex Parte H (2001) 179 ALR 425 SZBYR v Minister Immigration & Citizenship (2007) 235 ALR 609 SZIAI v Minister for Immigration & Citizenship [2008] FCA 1372 SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1 SZJBA v Minister for Immigration & Citizenship (2007) 164 FCR 14 SZKCQ v Minister for Immigration & Citizenship (2008) 170 FCR 236 SZKGF v Minister for Immigration & Citizenship [2008] FCAFC 84 SZKTI v Minister for Immigration & Citizenship (2008) 168 FCR 256 SZLTR v Minister for Immigration & Citizenship [2008] FCA 1889 SZLWQ v Minister for Immigration & Citizenship (2008) 172 FCR 452 Vanstone v Clark (2005) 147 FCR 299 Wrecker v Secretary, DEST (2008) 168 FCR 272 |
| Applicant: | SZMZX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3163 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 8 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 8 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Mr D Godwin |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3163 of 2008
| SZMZX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant came to Australia in April 2008, travelling on a student guardianship visa and accompanying her student daughter. On 10 June 2008 she lodged an application for a protection visa, assisted by a migration agent, Mr Harry Huang at Priscilla International. The application contained a narrative in which the applicant explained her fears to return to the People's Republic of China.
The applicant claimed to have been running a chicken hatchery with her husband from 1995 in the province of Fujian. Corrupt officials took advantage of the bird flu epidemic to extort money from them and other farmers. This resulted in the financial ruin of their business, and in March 2007 her husband organised other farmers to unite in protesting against corrupt officials. He and his friends visited government offices with petitions, and when these produced no response “he continually sought appeal with relevant government agencies, including the people's court, the people's procurators, anti-corruption Bureau, and the disciplines inspection committee”.
However, in June 2007, he was attacked by gangsters, and subsequently he and his friends were “continually bullied, hurt, harassed or threaten by local mafia”. The hatchery was destroyed, and her son and daughter also became targets of bullying and harassment. The applicant therefore started, in September 2007, to organise a trip for her and her daughter overseas. The hatchery was closed in November 2007, but in December her husband was suddenly arrested “because he was alleged to incite anti government movement". He was not released until February 2008, and had to pay a fine and had suffered mistreatment.
The applicant herself protested by sitting in front of the PSB but was arrested in January 2008 and detained for two weeks. Her and her daughter's visas were obtained in early April 2008, but before they left China her daughter drafted a leaflet for her. This condemned the corrupt officials and “called the people to fight against the corrupt communist system. I made about 200 copies of the leaflet”. With the help of two friends, the leaflets were posted to government agencies and other people. As a result, after she had left China, her friends were arrested, her home was searched, and her husband was taken into detention and had not been released at the time of application. She claimed:
Owing to confession of [these two people] as well as evidences (20 copies of the leaflets) found in my home, I have been regarded as an organiser of distributing anti-government and anti-communist propaganda materials. I, therefore, must be arrested immediately by the police on return; I must be subjected to persecution by the PRC authorities.
The Department of Immigration later received copies of three documents and translations from the applicant's agent. They purported to confirm the registration of the applicant's husband's business, his detention from late 2007, and the detention of the applicant in January 2008.
A delegate interviewed the applicant on 5 August 2008, and later set out an extensive description of the interview in a statement of reasons. The delegate refused the visa application on 29 August 2008. As the delegate explained:
At interview, it appeared the applicant had made an attempt to rehearse a version of events which had been outlined in the written account provided with her application. However when asked to expand upon these matters and account for the particular events, the applicant appeared unsure and confused about the claimed events. The applicant's unconvincing account suggested that the applicant was unfamiliar with the claimed events and accordingly that she did not actually experience these events herself, but they have been fabricated for the purposes of seeking protection in Australia.
The applicant appealed, and was assisted by her agent. She attended a hearing held by the Tribunal on 27 October 2008. Before doing so, she responded to two invitations sent by the Tribunal to comment upon particular matters. These included contradictory evidence given by the applicant at the interview with the delegate, and evidence obtained from the student visa application file. The student visa application had presented the applicant and her husband as being employed in a different business, and having substantial assets and the capacity to raise a large bank loan.
The applicant's response to these letters conceded the various inconsistencies and points put to her. It included this explanation:
I have to accept that I had some confusion with my claims at the interview with the delegate, because I was indeed under huge pressure. As a matter of fact, I have suffered from stress and depression since I came to Australia; and it has particularly become more and more serious since I knew that my husband had been arrested for the second time on [date]. As it has been described by Dr Bo Li Zhu, it has indeed caused me “headache, insomnia, nightmare, lack of concentration and impaired memory…” (attached is certified copy of a letter from Dr Zhu) and I have been suggested to see a psychologist.
It is owing to serious stress and depression that I felt very much nervous at the interview with the delegate; and that I was subjected to huge pressure, mentally and psychologically. Therefore, it was inevitably that I was confused and made some mistakes as mentioned above.
I had to beg the Tribunal to kindly consider my particular health situation and understand my particular difficulties.
The attached document is a letter signed by a general practitioner on 21 October 2008, referring the applicant “for opinion and management” to Mr Wong, who appears to be a clinical psychologist. The referral letter describes the “presenting problem” as “stress and depression, causing headache, insomnia, nightmare, lack of concentration and impaired memory”. The letter does not, in my opinion, itself contain any medical diagnosis.
The applicant's response to the Tribunal's letters also addressed the implication of the student visa documents, by claiming:
Both my daughter and I, even my husband, really had no ideas about those materials. Both my daughter and I even did not personally sign any forms or any documents. Therefore, the so‑called evidences that my family had a significant amount of funds for a certain period are definitely not the genuine evidences of real financial situation of my family.
It was claimed that all the documents and evidences had been “made or prepared or organised by my husband's friend”.
These matters were again discussed with the applicant at the hearing which she attended. The Tribunal also very thoroughly questioned the applicant concerning the events which had been narrated in the visa application. According to the account of the hearing given by the Tribunal, the applicant's evidence emerged in a most unsatisfactory fashion, with evasions, difficulty remembering anything which was not in the visa application statement, and inconsistent responses when this was attempted. Although the applicant's agent was subsequently provided with the sound recording of the hearing, no transcript of the hearing has been presented in evidence before me and I have no reason not to accept the Tribunal's description of the hearing.
The Tribunal signed its decision and statement of reasons on 31 October 2008, and under the recently amended provisions of s.420(2) of the Migration Act “made” its decision on that date.
The Tribunal affirmed the decision of the delegate. In its statement of reasons, the Tribunal carefully recited all the material before it, including its lengthy account of the hearing. It also referred to some general information relevant to the claim.
Under the heading, “Findings and Reasons”, the Tribunal first addressed the applicant's letter from the general practitioner. It said:
92. The Tribunal has considered the medical certificate presented by the applicant to the Tribunal. The applicant confirmed in oral evidence that she had not seen Dr Zhu before 21 October, claiming that she did not have the money. However the applicant also informed the Tribunal that she was not working. She initially stated that her daughter suggested that she should see a doctor but later said that her daughter claimed that they had no money and she could not afford to see a doctor. Given the applicant’s confused evidence and, more importantly, the fact that she had not seen a doctor for six months after her arrival in Australia but had only seen a doctor shortly before the hearing and after receiving the Tribunal’s s 424A letter about the discrepancies at the interview, the Tribunal is of the view that the applicant arranged to see the doctor as a result of the letter and to be able to explain the discrepancies.
93. Further, the Tribunal notes that the report of Dr Zhu refers to the applicant ‘presenting’ with various problems. The applicant informed the Tribunal that Dr Zhu had not conducted any independent tests and that these ailments, which include insomnia, lack of concentration and impaired memory, were recorded on the basis of the applicant’s self-reporting. In these circumstances, the Tribunal does not accept that Dr Zhu’s diagnosis forms an independent medical opinion about the applicant’s condition. The Tribunal finds that Dr Zhu’s report offers little more than a re-statement of the applicant’s own description of her ailments.
94. The applicant has been able to give precise evidence in her oral evidence to the Tribunal about matters that were contained in her statement. She was able to refer to the exact dates and to describe in considerable detail certain events in China. She explained that these events were ‘branded in her memory’ and she would not forget. Thus, the Tribunal is not satisfied that the applicant suffers from a memory impairment or lack of concentration or from any other condition that has affected her ability to give evidence or to meaningfully participate in the Tribunal’s hearing or to remember various events or past occurrences. Further, the Tribunal does not accept that it is the applicant’s medical condition that has caused the inconsistencies between the applicant’s written evidence and her claims at the interview with the delegate, as set out in the Tribunal’s letter of 7 October 2008. The Tribunal finds that such inconsistencies - for example, the applicant’s different answers as to when she last saw her husband, whether he was released after she left China or whether the business continued to operate after November 2007 - are indicative of the applicant’s untruthfulness and not of any medical or mental condition or stress, her level of education, illiteracy or any other matter suggested by the applicant.
The Tribunal then stated its general opinion about the applicant's credibility. It said:
95. The Tribunal has found the applicant to be a witness who completely lacked credibility. She was evasive in her answers and non-responsive when the Tribunal’s questions were directed at matters other than those contained in her statement. She appears to have memorised her statement and frequently referred to the information contained in the statement irrespective of the Tribunal’s questions. The applicant readily responded to the Tribunal when questioned about the matters contained in the statement but on many occasions the Tribunal had to repeat its questions several times to elicit an answer from the applicant when questioned about other matters.
The Tribunal then gave examples of the applicant's evasiveness when questioned about matters which were not included in the visa application statement, of her inability to elaborate on these matters, and of various discrepancies in her evidence to the Tribunal. There were, indeed, on the Tribunal's description of the hearing, abundant reasons for the Tribunal to have formed its very adverse view of the applicant's credibility as a witness, and it is unnecessary for me to detail these again.
The Tribunal referred to the three documents presented by the applicant's agent as follows:
103. The Tribunal has also considered the documentary evidence presented by the applicant, including evidence of her arrest and release. In light of the Tribunal’s concerns about the applicant’s credibility, the country information cited above concerning the availability of fraudulent documents in China and the applicant’s own admission that her daughter’s Student visa application contained false documents, the Tribunal does not accept that the documents genuinely reflect the applicant’s circumstances. The Tribunal gives these documents no weight.
As a result of its opinion about the truthfulness of the applicant, the Tribunal rejected “the entirety of the applicant's claims with respect to events in China", and it specified each element in the claims made by the applicant's narrative which it rejected. The Tribunal noted that the daughter had also given contradictory evidence to the Tribunal, but it said that it did not rely on these inconsistencies, although it was satisfied that the daughter had also been “untruthful in her evidence and that she lacks credibility”.
The Tribunal found that the applicant was of no interest to the Chinese authorities, either as a result of her own conduct or of her association with anyone else, including her husband. It found the there was no real chance that she would be persecuted for any Convention reason if she returned to China now or in the reasonably foreseeable future.
The applicant now asks the Court to set aside the Tribunal's decision and to remit the matter for reconsideration. I can only make these orders if the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's refugee claim should be believed, nor whether she qualifies for a protection visa or any other permission to stay in Australia.
The applicant relies upon arguments which have been explained in her original application, and has filed no further amended application, written submissions or evidence. The first ground is:
1.The Tribunal’s findings in relation to Dr Zhu’s letter has included a reasonable apprehension of bias.
Particulars
-The Tribunal failed to take a genuine attempt to consider, properly and fairly, my evidence why I did not see Dr Zhu before 21 October 2008. The Tribunal believed subjectively that I had to do so actually for the reason that I had been invited by the Tribunal to comment on some issues arising from its letter pursuant to s.424Aof the Act on 7 October 2008.
-The Tribunal may not be bound by rules of evidence; but in my case, the Tribunal should, at least, contact with Dr Zhu in order to clarify some information given in his letter; otherwise we cannot say that the Tribunal has genuinely act according to substantial justice and the merits of the case. As a matter of fact, my health hardship is one of crucial issues in my case. The Tribunal itself is obviously not a professional in medical area; and thus it must seek evidence from Dr Zhu or other medical professionals.
I have above set out the Tribunal's reasoning in relation to Dr Zhu's letter. The Tribunal was, in my opinion, generous with its treatment of the letter, in accepting the suggestion of the applicant's agent that it contained a diagnosis of an illness. I do not think it did so, but its reading of the referral letter did not disadvantage the applicant. In my opinion, it was well open to the Tribunal to have formed the view that it provided no explanation for the significant defects in the applicant's presentation as a witness which it found, and which had also been demonstrated in her evidence before the delegate.
The fact that the Tribunal formed that adverse assessment of the applicant as a witness, and did not accept that there was a medical explanation for it, does not, in my opinion, provide any evidence supporting a contention that the Tribunal assessed the applicant's case with a closed mind, as was suggested by the applicant. It was its duty to assess the applicant as a witness when it came to arrive at a final decision, and it has performed that duty and given reasons which are cogent and were open to it on the evidence.
In relation to the contention that the Tribunal should have made contact with the doctor, I accept the submission of counsel for the Minister. He referred to Minister for Immigration and Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12, where at [19], [43] and [124], their Honours emphasised that the Tribunal has no general duty to obtain medical evidence through its own inquiries, in circumstances which have some similarity with the present. In the present case, there was no special circumstance which would give rise to any such duty (compare: Minister for Immigration & Citizenship v Le (2007) 164 FCR 151 at [77], SZJBA v Minister for Immigration & Citizenship (2007) 164 FCR 14 at [59]-[60], SZIAI v Minister for Immigration & Citizenship [2008] FCA 1372 [Special leave granted 13-2-09], SZICU v Minister for Immigration & Citizenship [2008] FCAFC 1 at [29], and Wrecker v Secretary, DEST (2008) 168 FCR 272 at [110]). I can therefore detect no error, whether jurisdictional or otherwise, in relation to the Tribunal's consideration of the applicant's claims about her mental state and the letter from Dr Zhu.
In her oral submissions today, the applicant touched upon a matter which was also addressed by the Minister's counsel in his written submissions. This was the circumstance that, after the Tribunal made its decision, it received from the applicant's agent a report from Mr Wong. This gave his impression that the applicant suffered from “adjustment disorder with depressive mood”, and recommended intervention by way of “activity rescheduling and basic problem solving skills”. I am doubtful whether, had the Tribunal been able to take this report into consideration, it would have caused any different assessment of the matter before it. However, I accept the submission of the Minister that the Tribunal was under no obligation to consider that document after it made its decision, nor to re-open its consideration of the matter before it. I accept that the Tribunal became functus officio in relation to its review upon the making of its decision on 31 October 2008.
Ground 2 in the application is:
2.The Tribunal’s finding in relation to the documentary evidences for my arrest and detention has included a reasonable apprehension of bias.
Particulars
The Tribunal has in fact looked positively at the documents or evidence or information in my student’s guardian visa application. But, on the other hand, while the Tribunal considered the documentary evidences for my arrest and detention, it has actually looked negatively at the documents or evidence or information in my student’s guardian’s visa application. So, the Tribunal’s finding is contradictory with each other.
In my opinion, this further argument in support of a claim of a contention of apprehension of bias is also misconceived. It suffers from a basic problem in its premises, which is that the Tribunal accepted evidence taken from the student visa file in preference to the three documents presented as corroboration of the protection visa application. However, it did not do this. Rather, the Tribunal’s reasoning was that it could not accept that any of the documents presented to the Department of Immigration genuinely reflected the applicant's circumstances. I would not read the Tribunal's reasons as indicating that it accepted the applicant's claim that the documents on the student visa application file were false. Rather, the Tribunal identified a natural doubt about the present documents, arising from the applicant’s admission that false documents had in the past been presented with the student visa application.
There was nothing contradictory in the Tribunal's reasoning, which might evidence a previously closed mind through the adoption of illogical or unreasonable reasoning (compare NADH of 2001 vMinister for Immigration & Multicultural & Indigenous Affairs (2005) 214 ALR 264). I can find nothing in its reasons, nor anything earlier in the conduct of the proceedings before the Tribunal, which provides any evidence supporting the application of principles identified by the High Court in Re RRT & Anor; Ex Parte H (2001) 179 ALR 425.
The third ground of the application is:
3.The Tribunal failed to consider my evidences properly and fairly.
Particulars
The Tribunal has in fact regarded the documents or evidences or information in my student’s guardian’s visa application as one of the main reasons in its final decision. However, the Tribunal failed to take any genuine attempt to consider evidences as follows:
As a matter of facts, all materials, including the evidence that my family had a significant amount of funds for a certain period as well as application forms, were prepared and made by my husband’s friend. Both my daughter and I, even my husband, really had no ideas about those materials. Both my daughter and I even did not personally sign any forms or any documents. Therefore, the so-called evidences that my family had a significant amount of funds for a certain period are definitely not the genuine evidences of real financial situation of my family.
This contention suffers from the same misreading of the Tribunal's decision as the second ground. Moreover, the uncertainties as to the veracity of documents presented by the applicant to the Australian government, arising from the student visa file and the applicant's evidence about it, did not form a significant part of the Tribunal's reasons for rejecting the refugee claims. These were very firmly founded upon the significant flaws in the applicant's presentation as a witness of truth, when interviewed by the delegate and by the Tribunal. In my opinion, the Tribunal did make a genuine attempt to consider all of the applicant's evidence, including the written statements which had been prepared and presented to the Tribunal by the applicant's agent.
I am therefore not satisfied that any of the contentions of jurisdictional error made in the application are made out.
Counsel for the Minister raised an issue which was not touched upon by the applicant. This was whether the request by the Tribunal to the Secretary of the Department of Immigration that the Department provide the applicant's daughter's student visa file was an invitation to “a person to give additional information” coming within s.424(2) of the Migration Act. If so, whether it did not comply with formal requirements found in s.424(3) and s.424B of the Migration Act, so as to give rise to jurisdictional error on the construction adopted in SZKTI v Minister for Immigration & Citizenship (2008) 168 FCR 256. In SZKTI their Honours rejected a submission by the Minister that not all invitations to give additional information under s.424(2) are required to be made according to the formalities attaching to that subsection, but that it is optional to the Tribunal to follow those formalities when making such an invitation if it wishes to attach the consequences arising under s.424C and 425(2)(c).
The facts before the Full Court in SZKTI were very dissimilar from the present request to the Secretary. They did not require the Full Court to identify when the Tribunal may “get” information under its general power in s.424(1) without, in the language of s.424(2), making an invitation “to give additional information”.
As Siopis J suggests in SZLTR v Minister for Immigration & Citizenship [2008] FCA 1889 at [33], sub-section 424(2) has “application only in limited circumstances”. His Honour was inclined to think that those circumstances would not include a request by the Tribunal for information from the Department of Foreign Affairs & Trade. However, it was not necessary for him to form a clear opinion whether requests for information from government departments would not come within s.424(2), since in the matter before him “the record does not reveal the manner in which the Tribunal communicated with DFAT in respect of the information in question”. It was therefore not possible to assess whether the formal requirements attaching to a 424(2) invitation were or were not complied with (see [37]).
In the course of a later Full Court judgment in which he maintained the correctness of the Full Court's judgment in SZKTI, Buchanan J appears to suggest that requests for information in the course of the conduct of researches by the Tribunal may not come within s.424(2) (see SZKCQ v Minister for Immigration & Citizenship (2008) 170 FCR 236 at [40]). However, this is not clear, although his Honour does refer to s.424(2) being engaged in “more limited circumstances”.
It might be possible to distinguish some requests to the Secretary of the Department of Immigration for documents from its files as not coming within s.424(2) by, for example, considering whether the Secretary is a “person” for the purposes of those sections, and whether the request is for “additional” information or not. However, I am not attracted by such analyses. An officer of the Commonwealth such as the Secretary, would normally be regarded as a statutory “person” and, since the Secretary will normally have already forwarded documents to the Tribunal pursuant to s.418(3) of the Act, the making by the Tribunal of a request for further folios or files might in ordinary language appear to be an invitation to provide additional information.
However, in my opinion, the category of requests for information or documents covered by s.424(2) cannot have been intended by Parliament to encompass requests by the Tribunal to the Department of Immigration for additional documents or files, at least if, as I am bound to accept, Parliament intended all invitations under s.424(2) to be attended by the formalities of s.424(3) and s.424B. In the context of an administrative merits review system such as the present, the requirements of formal service and specification of manner and time of response would not appear to be directed at a request to the primary decision maker to provide additional documents. Rather, they are directed at the obtaining of additional information from the applicant or from some other private source of information.
If I am wrong in this construction of s.424(2), then I also would not be persuaded on the evidence before me that jurisdictional error occurred in this case due to a failure of the Tribunal's request to comply with the formalities which the Full Court has found to attach to all invitations under 424(2).
The present request is evidenced by an email from the Tribunal officer directed to “NSW OP-RRT Liaison Unit”. In its terms it did not expressly “specify the way in which the additional information, or the comments or the response, may be given" as required by s.424B(1), nor refer to a “period specified in the invitation, being a prescribed period, or if no period is prescribed a reasonable period". At least, it did not contain such precise specifications of these things as would be required if a strict meaning is given to the word “specified” (compare Evans v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 135 FCR 306 at [23] and [95]-[97], and Vanstone v Clark (2005) 147 FCR 299 at [13]).
However, there is a suggestion in a later decision of Buchanan J that the requirements of specification in 424B encompass concepts of sufficient compliance rather than literal or precise compliance (see SZLWQ v Minister for Immigration & Citizenship (2008) 172 FCR 452 at [50]-[52]). If so, the present email may suffice in its compliance with the formal requirements. It might appear implicit that a request to provide a “student visa file” expected that “the way in which the additional information” was to be provided would be by providing the file or a copy of those documents. Less clearly, it might also be thought that a request to a government department that this be done “as soon as possible” is sufficient to indicate “a reasonable period” for asking for those documents in the present circumstances. Applying this flexible approach to the formal requirements arising under s.424B(1) and (2), I would not be satisfied that there was a departure from their requirements.
Nor is there any evidence before me that there was a departure from the requirements of s.424(3) that an invitation be made by a method specified in s.441A. Within those methods of giving notices there is in 441A(5), the doing so by "email … to the last … email address … provided to the Tribunal by the recipient in connection with the review". I would not find that a request by email to the Department of Immigration’s "RRT Liaison Unit" was not the dispatch of an email to an address of the Secretary provided in terms of s.441A(5), if that was required by the legislation.
If I am wrong in thinking that only sufficient compliance with the requirements of s.424(3) and s.424B is required, and if there were technical failures in relation to those formalities in relation to the request to the Secretary, and if I continue to assume that s.424(2) applied to the Tribunal’s request, then there may be another reason for finding no jurisdictional error occurred in the present circumstances.
Those circumstances show that any technical departures from the requirements of ss.424(3) and 424B were of no significance whatsoever in the present case, since in fact the Department of Immigration was able to, and did, comply with the request by forwarding the file of documents promptly. This must have occurred before 14 October, that is, within 10 or 11 days, since the Tribunal was able on that day to put material from the file to the applicant in its letter inviting her comments. Approaching any procedural irregularity under the principles of statutory construction referred to in Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355, in my opinion, it could not have been the intention of Parliament that such irregularities would give rise to the nullity of the decision of the Tribunal. If so, no jurisdictional error occurred by reason of any informality attending the Tribunal’s request for additional information from the Secretary.
For the above three alternative reasons, I am not satisfied that any jurisdictional error of the type found by the Full Court in SZKTI arose in the present case.
Moreover, if I am wrong in excluding the presence of jurisdictional error, I would exercise my discretion to refuse relief in the present case. As I have indicated, no other jurisdictional error can be found in the proceedings or reasons of the Tribunal. Any jurisdictional error which might have arisen from the insignificant departures from formalities attaching to s.424(2) invitations were so immaterial to the processes of the Tribunal and how it considered the applicant's case that, in my opinion, relief should be refused on principles well established in recent authorities (see Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 at [85]-[86], SZBYR v Minister Immigration & Citizenship (2007) 235 ALR 609 at [28], [55]-[59], [91], and SZKGF v Minister for Immigration & Citizenship [2008] FCAFC 84 at [13]).
For all the above reasons, I consider that the application should be dismissed.
The Minister asks for costs to be quantified in the exceptional amount of $10,000. It is submitted that these arose from increased legal expenses due to the need, in particular, to take counsel's advice in preparing an elaborate submission addressing the issues arising under SZKTI. There was also some additional expenses in relation to the compilation of the Court Books arising from the need to include the student visa file.
However, I do not regard the second of these points as taking the matter beyond the normal scale of costs which is provided under the Federal Magistrates Court Rules 2001 (Cth). In relation to the first point, the issues in relation to s.424 were not raised by the applicant at all, but were properly raised by the Minister's legal representatives. In all the circumstances, I do not consider that it would be fair and just for the applicant to be required to meet added costs arising from unusual complexities in legislation for whose administration the Minister is responsible. In my opinion, an appropriate party/party costs award in this case would be the scale amount of $5,865.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 1 May 2009
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