SZNJL v Minister for Immigration
[2009] FMCA 471
•18 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNJL v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 471 |
| MIGRATION – Review of decision of Refugee Review Tribunal – s.424A must first be engaged before a failure to comply with s.424AA will amount to jurisdictional error – s.424A not engaged in relation to information that fell within exceptions – Tribunal elected to comply with s.424AA in relation to other information – Tribunal complied with s.424AA – inconsistencies and implausibilities not “information” for the purposes of s.424A – no failure to ensure that applicant understood why information was relevant as far as was “reasonably practicable” – no failure to comply with s.425 – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424AA, 424A, 425 |
| SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 SZITH v Minister for Immigration and Citizenship [2008] FCA 1866 SZMAE v Minister for Immigration & Citizenship [2008] FCA 1701 SZMCD v Minister for Immigration & Citizenship & Anor [2009] FCAFC 46 SZMMP v Minister for Immigration and Citizenship [2009] FCA 233 SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 SZLML v Minister for Immigration and Citizenship [2009] FCA 83 SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 206 ALR 471 SZMJE v Minister for Immigration and Citizenship [2008] FCA 1751 SZLOJ v Minister for Immigration and Citizenship [2008] FCA 1693 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259 |
| Applicant: | SZNJL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 705 of 2009 |
| Judgment of: | Nicholls FM |
| Hearing date: | 18 May 2009 |
| Date of Last Submission: | 18 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2009 |
REPRESENTATION
| Appearing for the Applicant: | In person |
| Solicitors for the Applicant: | Nil |
| Appearing for the Respondents: | Ms K Whittemore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 25 March 2009 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $3,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 705 of 2009
| SZNJL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
I have before me an application made on 25 March 2009 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 24 February 2009, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.
Background
The first respondent has put a bundle of relevant documents before the Court (the Court Book – “CB”) from which the following background may be discerned.
The applicant is a national of the People’s Republic of China (“China”) who arrived in Australia on 11 July 2008 (CB 13). On 18 August 2008 he applied for a protection visa (CB 1 to CB 29). This application was refused on 24 October 2008 (CB 40 to CB 58). The applicant applied for review on 21 November 2008 (CB 60 to CB 63). He appeared at the hearing before the Tribunal on 9 January 2009 (CB 69) at which he was assisted by an interpreter in the appropriate language.
I note that throughout the process of the review the applicant was represented by a registered migration agent, whom he had appointed as his authorised recipient and “adviser” for the purposes of the review (CB 61 and CB 62). The adviser did not attend at the hearing before the Tribunal. The Tribunal made its decision on 24 February 2009 and sent a copy of its decision record to him – both to the representative’s address (CB 78), and to the applicant’s address (CB 79).
Applicant’s claims to protection
The applicant’s claims to protection were that his family’s land had been seized and sold by the government officials in his village in China, and that the family had received inadequate compensation. The applicant’s father organised a protest against “corrupt officials”. As a result, he was detained by the PSB (Public Security Bureau). While in detention, he had been injured and denied medical attention. Upon release, he was no longer fit for employment. His mother was also subjected to harsh treatment when she attempted to visit his father in detention.
The applicant claimed that he sought out legal avenues for achieving redress against the “corrupt officials” and police, but was warned against this course. He met a friend’s aunt who worked for an organisation that dealt with complaints against the government. She assisted him to seek investigation of the officials and to seek some redress. He claimed that the friend’s aunt was subsequently arrested by the PSB and that he organised a protest aimed at securing her release and obtaining justice against the officials “generally”.
The applicant claimed that he was detained, that he was subjected to the same treatment as his father, that he had been forced to sign a confession, and that he had been forced to reveal information about the friend’s aunt. He was only released after his wife paid a bribe. He had to report to the police station weekly, and was put on what he described as a “black list” (see protection visa application at CB 17 to CB 20).
The Tribunal
The Tribunal comprehensively rejected all of the applicant’s claims to fear persecution in China. It did so because after considering his evidence it did not believe the truth of his statements. While the Tribunal accepted that he had attended a particular Arts School, that he had been employed by two different Opera Troupes before coming to Australia, and that he had had a friend with the name he had provided, it did not accept that his father had organised a protest in response to the seizure and sale of land, or that his father had been arrested and detained by authorities, or that he and his friend had organised a protest, or that his friend’s aunt had been arrested or detained. Nor did it accept that the applicant had been arrested and detained, that he was subjected to police reporting requirements, that his friends had arranged for the applicant’s passage through the airport by paying bribes, or that the applicant was of any interest to the Chinese authorities, or that the police had caused him or his family any difficulties (CB 96.9 to CB 97.7 at [74] to [76]).
The Tribunal’s finding that the applicant lacked credibility was based on the following factors:
1)The inconsistency between evidence in his protection visa and at the hearing before the Tribunal about his having left school at age fifteen and having gone to work for one particular Opera Troupe, and what he had put in his application for an entertainment visa (which he used subsequently to travel to Australia) about his education details, schooling and then having gone to work for two different Opera Troupes. That is, the inconsistency as between the two sets of documents in relation to his education and employment details (CB 94).
2)His use of, and ability to recall, people’s names varied between the interview with the delegate, and the hearing before the Tribunal (CB 94.8 to CB 95.1).
3)The inconsistency of his having organised a protest for his friend’s aunt, but not for his own father, and his inability to explain this inconsistency (CB 95.4).
4)His subsequent change in evidence (by adding that he had sought legal assistance for his father) in subsequently explaining the inconsistency (CB 95.6).
5)The inconsistency between his having obtained a passport with the intention of travelling overseas and deciding not to travel overseas because of his parent’s illness, when his parents were already ill at the time prior to his having applied for this passport (CB 95.8).
6)Inconsistencies between what he said to the delegate about having “no conditions” being imposed on him after being released from detention and what he said in his protection visa application and at the hearing before the Tribunal about having to report to the police station (CB 95.9 to CB 95.10).
All of this led the Tribunal: “to consider that all these problems with the applicant’s evidence cast doubt on whether the claims which he made in his application for a protection visa are true.” It further led it to consider: “that these problems are also relevant to his credibility.” In light of this, and taking into account the applicant’s explanations, it formed the view that: “these problems with the applicant’s evidence cast doubt on whether” he told “the truth in the claims which he has made in support of his application for a protection visa” (CB 96.1 to CB 96.2).
At the hearing before the Tribunal, the applicant submitted an “official notice” attesting to his claimed detention and release by the PSB. After having regard to country information in relation to the prevalence of forged documents, and the ease by which they might be obtained, the Tribunal did not attribute any weight to this document, explaining to the applicant that: “… any weight that I might give to the document which he had produced might not outweigh the problems which I had with his own evidence” (CB 96.4).
The Tribunal ultimately found that it: “did not consider that the corroboration afforded by the document which the applicant produced outweighs the problems which I have with the applicant’s own evidence as outlined above” (CB 96.4 to CB 96.5).
The Tribunal also found that the fact that the applicant was able to leave China without experiencing difficulty at the airport, combined with general country information which it had before it which stated that Chinese authorities check all departing passengers against an alert list, “cast doubt” on the applicant’s claim that he was on a black list and that he was of any interest to the authorities at all (CB 96.5 to CB 96.8).
Application to the Court
The application to this Court puts forward two grounds of review with particulars:
“1. The Tribunal failed to comply with its obligations under s.424AA of the Act.
[Particulars follow]
2. The tribunal failed to comply with its obligations under s.424A(1) of the Act.
[Particulars follow.]”
Despite the opportunity to file written submissions, the applicant has not done so. Written submissions were filed on behalf of the first respondent to which I have had regard.
Hearing before the Court
At the hearing before the Court the applicant appeared in person. He was assisted by an interpreter in the Fuqing language. Ms K Whittemore appeared for the first respondent.
The applicant stated that the Tribunal had rejected his application and that this was “not right”. He appeared unable to assist the Court any further beyond what was put in his application to this Court. When the Court tried to ascertain the extent of his knowledge about what was in his application, he at first stated that a migration agent had assisted him, but subsequently stated that a “friend” who had legal knowledge had helped him draft it.
The applicant also made reference to what I understood to be the entertainment visa that he used to travel to Australia. He complained that the Tribunal used information in relation to that visa to reject his application for a protection visa.
The applicant’s grounds
The first ground in the application complains that the Tribunal failed to observe its obligations under s.424AA of the Act.
Section 424AA is in the following terms:
“Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv )if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.”
In support of the allegation of a breach of s.424AA, the applicant sets out in his application three paragraphs taken from the “Tribunal’s Findings and Reasons” in its decision record: [62] (at CB 94), [65] (at CB 94 to CB 95), and [70] (at CB 95 to CB 96).
In essence there are references to:
1)The Tribunal’s reference to, and comparison of, what the applicant had put in his application for an entertainment visa about his education and employment, what he had put in his application for a protection visa, and what he had said about these matters at the hearing (at [62]).
2)The Tribunal’s reference to, and comparison of, what he said to the delegate about the names of the accountant and the local party secretary in his village, and what he told the Tribunal (at [65]).
3)The Tribunal’s references to inconsistencies between what was in his application for a protection visa, what he told the delegate and what he told the tribunal about police reporting requirement (at [70]).
Ground two in the applicant’s application asserts that the Tribunal made a jurisdictional error in that it failed to provide the applicant with “clear particulars of the above-mentioned information”. I took this to be a reference to the same paragraphs as already referred to in relation to ground one. The Tribunal therefore failed to comply with its obligation pursuant to s.424A(1).
Section 424A is in the following terms:
“Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(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.
It appears that the complaint in ground two mirrors that complaint in ground one, with the additional complaint that the Tribunal did not give the applicant clear particulars of the information ‘in writing’.”
It appears that the complaint in ground two mirrors the complaint in ground one, with the additional complaint that the Tribunal did not give the applicant clear particulars of the information “in writing”.
In all, therefore, the applicant’s complaint is that the Tribunal failed in its statutory duty pursuant to s.424AA and 424A in that certain particularised information was not put to the applicant in such a way that he understood why the information was relevant. Further, he claims that he was not given additional time to comment on, and/or respond to, the information and (in the case of s.424A) that the information was not put to him in writing for his comment.
Consideration
It is important to note a number of matters arising from the relevant authorities. First, s.424A(2A), which became operational on 29 June 2007, provides that:
“(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.”
In SZMCD v Minister for Immigration & Citizenship & Anor [2009] FCAFC 46 per Tracey and Foster JJ the Full Court said (at [73]):
“Section s.424A is obligatory. Non-compliance with its provisions will very often amount to jurisdictional error. Section 424AA is discretionary. Non-compliance with its provisions will result in the Tribunal not having the benefit of s 424A(2A). In that event, it must strictly comply with s 424A.”
Further (at [85] to [87]):
“This latter exemption is not so much an exemption in respect of a type or kind of information (as is the case in respect of the subject matter of subs (3)) but is rather an exemption afforded to the Tribunal if it embarks upon a course of action which engages the provisions of s 424AA and if it complies with the requirements of that section.”
The decision to engage the provisions of s 424AA is discretionary in the sense that the Tribunal is not obliged to take a course which engages those provisions but may do so if it considers such a course of action to be appropriate.
In our view, the Tribunal must always comply with the provisions of s 424A. However, the Tribunal has a choice as to whether it will invoke the provisions of s 424AA.”
I note also what was said by Moore J at [2] in SZMCD about the complimentary relationship between s.424A and s.424AA:
“It cannot be doubted that s 424AA and s 424A are intended to be complementary. This is obvious from the legislative history and the terms of both sections. The former section, if complied with, relieves the Tribunal of the duty imposed by the latter. If there is no obligation to provide particulars under s 424A, then s 424A(2A) has no field of operation having regard to the opening words of that subsection, which presupposes the existence of such an obligation. Section 424AA is, in my opinion, clearly not intended to create a duty to take particular steps independently of the existence of a duty under s 424A …”
That is, s.424A must first be engaged before any failure to comply with s.424AA will amount to jurisdictional error. The relationship between the two sections is that the Tribunal need not comply with s.424A if it elects to comply with, and does fully comply with, s.424AA (with reference to s.424A(2A)). That is, it is “facultative” (see SZMCD at [90]) by providing a means of achieving compliance with s.424A.
I note further that the term “information” has the same meaning in s.424AA as it does in s.424A (see SZMCD at [91]). Also, the exceptions contained within s.424A(3) apply to s.424AA. This is because the exceptions “relieve” the Tribunal of the need to comply with s.424A.
There are a large number of authorities to support the above. (See SZMMP v Minister for Immigration and Citizenship [2009] FCA 233 per Lander J at [63], and also SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 per Cowdroy J, SZMAE v Minister for Immigration & Citizenship [2008] FCA 1701 per Edmonds J, SZITH v Minister for Immigration and Citizenship [2008] FCA 1866 per Middleton J, SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 per Gilmour J and SZLML v Minister for Immigration and Citizenship [2009] FCA 83 per Jaggot J, cited in SZMMP at [63] and in SZMCD at [98]. See also SZLQD v Minister for Immigration and Citizenship [2008] FCA 739 at [99].)
I note, even further, that in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) the High Court said (at [18]) that, in relation to the purposes of s.424A (with reference to VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 206 ALR 471), “information”:
“‘does not encompass the tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.’”
Also:
“However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.”
In this regard, in relation to s.424A , the High Court in SZBYR at [17] said:
“The statutory criterion does not, for example, turn on ‘the reasoning process of the Tribunal’, or ‘the Tribunal's published reasons’. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place ... The use of the future conditional tense (‘would be’) rather than the indicative strongly suggests that the operation of s 424A (1)(a) is to be determined in advance - and independently - of the Tribunal’s particular reasoning on the facts of the case ... Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.”
Also, with reference, and relevance, to the current case before the Court, the exceptions set out in s.424A(3) apply in this case:
1)The information contained in the applicant’s protection visa application falls within the exceptions contained in s.424A(3)(ba) of the Act (SZMJE v Minister for Immigration and Citizenship [2008] FCA 1751 at [22], SZLOJ v Minister for Immigration and Citizenship [2008] FCA 1693 at [15]).
2)The independent country information relied on by the Tribunal (that is, the information that he would not have been able to go through the airport security checks in China if he were on a “blacklist” – CB 96.7) comes within the exception contained in s.424A(3)(a) of the Act (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at [71], VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [12]- [14], QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [22]).
3)The information provided by the applicant himself for the purposes of the review (that is, information provided at the hearing) falls within the exception contained in s.424A (3)(b).
As it is the case that an obligation under s.424AA only eventuates once an obligation arises under s.424A, and the Tribunal elects to engage s.424AA, there is no jurisdictional error pursuant s.424AA in relation to those items.
Relevantly, the two sets of “information” do not fall within these exceptions:
1)The information relating to what the applicant said at the interview before the delegate. With reference to what is set out below, I note that it was clearly put to the applicant orally at the hearing before the Tribunal (see CB 86.8).
2)The information in the applicant’s application for an entertainment visa did not fall within a section 424A exception. (It was not given for the purposes of the review.) I note that this was also put to him at the hearing before the Tribunal (CB 86.4).
The Tribunal was entitled to proceed as it did in relation to that information. As such, the Tribunal elected to give the applicant particulars of the information under s.424AA, and did not need to comply with the s.424A requirement that the particulars be given in writing. (See further below.)
Bearing in mind all of the above, the grounds in the application, therefore, fail for a number of separate reasons.
First, the excerpts from the Tribunal’s decision record on which the applicant relies refer to the Tribunal’s view of the applicant’s claims and evidence. They set out, to a large part, the Tribunal’s findings of inconsistencies and implausibilities in the applicant’s evidence. As such, they are not information for the purposes of s.424A or s.424AA. (See SZBYR at [18]. For the complimentary relationship between s.424AA and s.424A, see SZMCD.)
Second, to the extent that the applicant complains that this “information” (if it is understood to be the information upon which the Tribunal’s findings were based), was not put to him, then any plain reading of the Tribunal’s unchallenged account of what occurred at the hearing before it reveals that the Tribunal did comprehensively put to the applicant the matters about which he now complains. (See CB 86 to CB 93.)
Incidentally, I also note that the Tribunal’s account reveals that the determinative issue in this case was (as it was before the delegate) the disbelief of the applicant’s factual account as to why he should be recognised as a refugee. Keeping in mind what the High Court said about procedural fairness and s.425 of the Act in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, it is clear that the Tribunal plainly complied with its procedural fairness obligations in this regard.
Third, and in any event, it was open to the Tribunal to elect pursuant to s.424AA to put to the applicant at the hearing information that it considered would be the reason or part of the reason for affirming the decision under review. The Tribunal plainly told the applicant what it was doing and gave him the option of commenting at the hearing or taking additional time to do so. (See [45] at CB 90.)
It then put each of the items of “information” to him and explained the relevance of these to its decision. This included what was relevantly contained in the application for the protection visa and what he told the delegate. (See [46] to [57] at CB 90 to CB 93.)
The Tribunal again asked the applicant if he needed more time to respond or comment. (See [58] at CB 93.) There is no evidence before the Court to challenge the Tribunal’s account of what occurred at the hearing.
In light of the above, therefore, ground one does not succeed. As I have said, the Tribunal’s adverse view of the applicant’s evidence is not information for the purposes of s.424AA. In any event, the evidence before the Court shows that the Tribunal did put the material to which the applicant now refers to him, and that it complied with s.424AA. I note, in this regard, as the Minister submits with reference to SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30], that no error is revealed simply because the Tribunal chose to follow this course.
Having properly complied with s.424AA, s.424A(2A) was engaged and the Tribunal did not need to put this information to the applicant in writing.
In all, for the reasons that I have already stated, the matters that the applicant alleges should have been put to him in writing were not so required as they were either not “information” for the purposes of s.424A(1), or alternatively, they fell within the exceptions contained in s.424A(3) (see [37] above), or s.424A(2A) was engaged, thus relieving the Tribunal of the obligation in s.424A(1) (see [38] to [40] above). Ground two, therefore, also does not succeed.
As for the applicant’s complaint that the Tribunal did not comply with the obligations in s.424AA(b), the Tribunal expressly told the applicant that he could seek additional time ([58] at CB 93.5):
“I noted that, as I had mentioned earlier, the applicant was entitled to seek additional time to comment on, or to respond to, the information I had given him in the course of the hearing. I asked him if he needed more time. The applicant said that he did not need additional time to comment on or respond to the information I had given him in the course of the hearing.”
On a plain reading of the Tribunal’s unchallenged account of what occurred at the hearing before it, it is clear that that applicant was given the invitation that he now asserts before the Court was not given to him. That is, it invited the applicant to seek additional time to respond to any or all of the information that it “had given him in the course of the hearing”.
The applicant has chosen, despite opportunity, not to put before this Court any transcript of the hearing that occurred before the Tribunal. Therefore, on the Tribunal’s unchallenged account of what occurred at the hearing before it, it is clear that the applicant was given additional time within which to comment on the matters that had been put to him. (In this regard, I note also [45] of the Tribunal’s decision record.)
It appears that the applicant also complains that while he might accept that “the Tribunal gave me particulars of the abovementioned information at the Tribunal’s hearing”, he does not accept that there is any “evidence that the Tribunal ensured” that he understood the relevance of the information to the review.
This complaint is misconceived for at least two reasons.
First, the applicant himself has brought no evidence to show that the Tribunal had not so ensured that he understood why the particulars were relevant to the review. I say this with reference to what a Full Federal Court said in NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241.
Second, I do not comprehend that the provisions of s.424AA(b)(i) and s.424A(1)(b) require a subjective test. The Tribunal’s obligation to ensure understanding is qualified by, as is said in those sections, “as far as is reasonably practicable”. In my view, the Tribunal’s unchallenged account of the hearing reveals that it clearly and simply put these matters of concern to the applicant and plainly told him of their relevance. That is, that the Tribunal may draw an adverse view as to his credibility which may lead it to conclude that he was not entitled to a protection visa.
As for the rest of the applicant’s submission that it was not right of the Tribunal to reject his application, in all the circumstances, I can only agree with Ms Whittemore that this does not rise above a request for the Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259).
Conclusion
In all, for the applicant to succeed before the Court today the Court would need to discern some jurisdictional error on the part of the Tribunal’s decision. As I cannot discern any such error, this application must be dismissed.
Comment
I cannot leave this matter without making the following comment. The Court well understands the difficulty faced by newcomers to this country who make applications of this type. It is, therefore, with some concern that I note that the person, whether migration agent or “legal” friend, that the applicant relied on to assist in the drafting of his application to this Court has not been helpful. It is not helpful to this applicant to have someone draft for him formulaic grounds and grounds that, in the circumstances, are misconceived. The thrust of the applicant’s grounds as expressed may have been of some value prior to the High Court judgment in SZBYR (13 June 2007). Further, they misunderstand the nature of the operation of s.424AA and its relationship to s.424A. Having said that, however, I note that the applicant did seek to participate in the Court’s legal advice scheme and was referred to a lawyer on the panel of that scheme. Plainly, he chose to rely of his “friend”.
Costs
In my view, in all the circumstances, it is appropriate that an order for costs be made. There is nothing before the Court to argue against the making of such an order in the normal course of events. In particular, I note that when given the opportunity to respond to the application for costs the applicant said he had nothing to say.
As to the amount, I note the amount that could have been sought by the Minister in a matter of this type (with reference to what is set out in the relevant schedule to the Rules of this Court). In any event, I am satisfied that the amount sought is a reasonable amount, given the work that has been done by the Minister’s legal representatives. I will make the order as sought by the Minister.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 1 June 2009
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