SZNOK v Minister for Immigration
[2009] FMCA 895
•20 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNOK v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 895 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant a citizen of India claiming a fear of persecution for reason of political opinion – credibility issues – no reviewable error. |
| Migration Act 1958 (Cth) ss.424, 424A, 424B, 425, 474 Migration Regulations 1994 (Cth) reg.4.35 |
| Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476 SZNAV & Ors v Minister for Immigration & Anor [2009] FMCA 693 SZNHU v Minister for Immigration & Anor(No.3) [2009] FMCA 777 SZNJT v Minister for Immigration & Anor [2009] FMCA 730 SZLPO v Minister for Immigration and Citizenship (2009) 255 ALR 407; [2009] FCAFC 51 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 SZYBR v Minister for Immigration and Citizenship (2007) 238 ALR 609 SZBEL v Minister for Immigration and Citizenship [2006] 228 CLR 152 WZANN v Minister for Immigration and Anor (No.2) [2009] FMCA 802 SZNPH v Minister for Immigration & Anor [2009] FMCA 788 SZLWQ v Minister for Immigration and Citizenship [2008] FCA 1406 |
| Applicant: | SZNOK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 1077 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 20 August 2009 |
| Date of last submission: | 20 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 20 August 2009 |
REPRESENTATION
| Applicant: | Appeared in person |
| Counsel for the Respondent: | Ms Cairns |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,700.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1077 of 2009
| SZNOK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of India. He has applied to the Court, under the provisions of s.476 of the Migration Act, for judicial review of a decision of the Refugee Review Tribunal.
The Tribunal made its decision on 6th April 2009, affirming the decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
The Applicant, by means of an application and an affidavit in support, filed on 4th May 2009, seeks review of that decision. In particular, his application asks the Court to make orders remitting the matter to the Refugee Review Tribunal to determine according to law, and ordering that no action be taken to remove him from Australia while a decision is pending.
As I explained at the commencement of the hearing, an order to remit an application to the Tribunal for determination according to law would be an order in the nature of mandamus. If the Court were to make such an order it would need to make an order in the nature of certiorari quashing or setting aside the Tribunal decision.
An order that no action be taken to remove the Applicant from Australia while the decision is pending would be directed to the First Respondent, who is the Minister for Immigration and Citizenship. It would involve the issue of a writ of prohibition.
I have explained to the Applicant that in order to make those orders the Court would need to be satisfied that the Tribunal decision is affected by jurisdictional error. This has been made clear by the High Court of Australia in Plaintiff S157 of 2002 v Commonwealth[1].
[1] (2003) 211 CLR 476
Background
The background to this matter is that the Applicant arrived in Australia on 27th June 2008. He applied for a Protection (Class XA) visa on 25th August 2008. The basis for his application for a protection visa can be found in the statutory declaration that accompanied the application, in which the Applicant set out that from 1994 until 2004 he was running a prawn culture farm in Tamil Nadu in India. He claimed that in 2004:
A group of communists attacked and ransacked the farm causing severe damage to the property and the farm.
The communist group then attacked my house and physically assaulted me and my family.[2]
[2] See Court Book at page 44.
In the statement the Applicant set out that he had been subject to threats and trouble from the Communist group, even after he left the area and tried to set up a new life in other parts of Tamil Nadu. He claimed that he feared that if he were to go back to India he would be killed by the underground Communist groups no matter where he went or into which state of India he travelled.
The Department of Immigration and Citizenship wrote to the Applicant on 19th September 2008. The Department invited him to attend an interview with a Departmental officer on 1st October 2008. The Applicant submitted various documents to the Department in support of his case. He attended the interview and was interviewed by a Departmental officer.
The delegate of the Minister for Immigration and Citizenship refused the application for a protection visa on 22nd November 2008. In the delegate’s protection visa decision record the delegate expressed concerns about the veracity of the Applicant’s claims, for a number of reasons[3].
[3] See Court Book at pages 71 and 72.
Application to the Refugee Review Tribunal
After the application for a protection visa was refused, on 22nd November, the Applicant then applied to the Refugee Review Tribunal for review of the delegate’s decision and that application was delivered by hand to the Tribunal on 18th December 2008. Apart from a copy of the delegate’s decision refusing the application for a visa, no other documentary evidence was submitted with the application for review.
What then happened was that on the same day that the Tribunal received the application for review, it wrote to the Applicant at the address for correspondence given on his application, acknowledging receipt of that application. In the text of the letter, under the heading “What Does the Tribunal Expect Me to Do”, there are three bullet points. After the third bullet point appear the words:
· Immediately send us any documents, information or other evidence you want the Tribunal to consider. Any documents not in English should be translated by a qualified translator.
It appears, from the Further Supplementary Court Book filed on 29th July 2009, that the Tribunal was constituted for the purpose of the review on 20th January 2009. The Further Supplementary Court Book contains at page 3 a document from the Tribunal headed “Notification of Constitution.”
That document sets out:
·The Applicant’s case file number;
·Applicant’s name;
·The name of the particular Tribunal Member;
·The team, within the Tribunal called, (for reasons that are not clear to this Court), “Gen D Team”;
·The date that the Tribunal was constituted, in this case 20th January 2009;
·The case type, described as Standard-RRT;
·The Visa subclass 866 (Protection);
·The country of reference, in this case India;
·Priority 1;
·Whether or not the Applicant was in detention, in this case no, and;
·Any jurisdiction issues identified, in this case no.
I am of the view that this document is evidence that the Tribunal was constituted, for the purpose of this review, on 20th January 2009.
On 22nd January 2009 the Tribunal wrote to the Applicant and invited him to appear before the Tribunal. The letter told the Applicant that the Tribunal had considered the material before it, but was unable to make a favourable decision on that information alone.
The letter invited the Applicant to appear at a Tribunal hearing at the Tribunal’s premises in Sydney at 1:00pm on 3rd March 2009, and advised him that an interpreter in the Tamil language would be available.[4]
[4] See Court Book at page 78.
The Applicant responded to that invitation, advising that he wanted to come to the hearing and he would need a Tamil interpreter. He attended the hearing on 3rd March 2009 and gave evidence with the assistance of an interpreter in the Tamil language. He produced to the Tribunal a copy of his Indian passport, along with copies of other documents, including a death certificate.
The Tribunal made its decision on 6th April 2009 affirming the decision not to grant the Applicant a Protection (Class XA) visa. Before it did so, however, and after the hearing, the Tribunal wrote to the Applicant on 11th March 2009. The letter was headed “Invitation to Comment on or Respond to Information” and was clearly intended to comply with the requirements of s.424A of the Migration Act.
The letter invited the Applicant to comment on or respond to certain information that the Tribunal considered would, subject to any comments or responses that the Applicant made, be the reason or a part of the reason for affirming the decision that is under review.
The letter set out five pieces of information informing him:
The above information is relevant to the review because the Tribunal may find that you have not provided a consistent or accurate account of your core claims and circumstances. The Tribunal may find that you fabricated all your core claims to enhance your protection visa application. It may find that you were not attacked by Communists or anyone else in India during 2004 or 2005. The Tribunal may find that you were not a person of interest to communists in India at the time when you left India for Australia. It may find that you are not currently, and you will not be in the reasonably foreseeable future, a person of adverse interest to the communists in India. The Tribunal may not accept that your brother was kidnapped, tortured, or killed in India, as you claim. The Tribunal may find that all the documents you have provided in support of your application, including the police report relating to an attack on your farm, were fabricated for the purpose of enhancing your protection visa application. The Tribunal may find that you lack credibility and that all your core claims were fabricated by you to obtain a protection visa.[5]
[5] See Court Book at page 129.
The Court Book does not show that any reply in writing was received by the Tribunal, notwithstanding the fact that the s.424A letter gave the Applicant until 3rd April 2009 to provide his written comments or response. It was not until 6th April 2009 that the Tribunal made its decision affirming the delegate’s decision not to grant the Applicant a Protection (Class XA) visa.
In the Tribunal’s decision record the Tribunal sets out, under the heading “Claims and Evidence” - a summary of the Applicant’s claims to the Department of Immigration and Citizenship in support of his application for a protection visa and a summary of his evidence to the Tribunal.
I note that the Tribunal described this warning that the Tribunal gave to the Applicant at the hearing, at [49] of the decision:
The Tribunal indicated to the applicant that credibility was an issue in his case because he did not describe his circumstances in India consistently to the Department and the Tribunal. The Tribunal stated that it may not accept as credible his claim that he was attacked by communists and others in 2004 or 2005 and it may reject his associated claims that he was at risk of harm by the same people in the future. The applicant stated that he had provided a truthful account of his circumstances in India and that he was fearful that he will be killed by communists if he returns to India.[6]
[6] See Court Book at page 140 at [49].
The Tribunal set out under the heading “Correspondence after the Hearing” the text of the s.424A letter that it wrote to the Applicant and noted that it did not receive a response from him.
Tribunal’s Findings and Reasons
In its findings and reasons the Tribunal accepted that the Applicant is a citizen of India, noting the evidence that he had provided in support of his claim, including his Indian passport.
The Tribunal noted the Applicant’s claim that he was attacked by Communists and others who objected to his prawn farm and set out a summary of the Applicant’s claims that he had a well-founded fear of persecution, for reason of his fear of attacks by the Communists, and noted his claim that he would not have access to protection by the state in India. The Tribunal, however, did not accept the Applicant’s claims and made serious findings adverse to the Applicant’s credibility.
The Tribunal said at [54] of the decision:
The Tribunal has considered the applicant’s claims and it has formed the view that all of his claims, relating to the difficulties he had with communists and others, regarding the prawn farm in India, lack credibility.
The Tribunal went on to say at [55]:
The Tribunal is not satisfied that the applicant provided a credible account of his circumstances in India. In particular the Tribunal does not accept as credible the applicant’s claim that he was targeted by communists or others in India because he owned a prawn farm.[7]
[7] See Court Book at page 142.
The Tribunal went on to consider the Applicant’s claims in the light of its credibility findings, the Applicant’s documents, and his claim that he would be denied protection by the authorities in India. The Tribunal considered in particular the Applicant’s claim about his brother having been tortured to death by Communists in India, which was a matter that the Tribunal investigated by looking at the Movement Details from the Department of Immigration and Citizenship, and it was put to the Applicant in the Tribunal’s s.424A letter of 11th March 2009. The Tribunal made this finding at [58]:
The Tribunal considered the applicant’s claim that his brother was tortured to death by communists in India. He claims that his brother died in December 2008 and he submitted travel and other documents relating to his brother, which in his view supports his claims. However, the Department’s Movement Details indicate that a person using the brother’s travel documents entered Australia on 15 February 2009. The Tribunal has formed the view that this claim, as with all of the applicant’s core claims, was fabricated by the applicant in the belief that it would enhance his protection visa application. The Tribunal does not accept as credible the applicant’s claim that his brother was tortured to death by communists in India.[8]
[8] See Court Book at page 143 at [58].
Based on its adverse credibility findings, the Tribunal was not satisfied that the Applicant faced a real chance of serious harm in India, such that it gave rise to a well-founded fear of persecution for a Convention reason, and formed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings for a review of the Tribunal decision and sets out in his application four grounds of review. They are as follows:
a)That the decision of the Refugee Review Tribunal was affected by jurisdictional error, in that the Tribunal did not take into account certain relevant consideration or integers central to the Applicant’s claims;
b)The Tribunal thereby failed to carry out its review function and to exercise its jurisdiction.
Particulars:
i)the Tribunal did not consider the Applicant, who had been under immense and intimidating pressure from Communist people.
c)The Refugee Review Tribunal denied the Applicant procedural fairness by reaching adverse conclusions that the Applicant’s claims were implausible, being conclusions that were not obviously open on the known material, without giving the Applicant the opportunity to be heard in respect of those matters;
d)The Applicant satisfies the four key elements of the Convention definition, as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
The Applicant has attended Court today. He has not filed any written outline of submission but was given the opportunity of making oral submissions to the Court.
It was put to him from the Bench that ground 1 by itself was not very informative and he was asked if grounds 1 and 2 should in fact be read together. The Applicant replied that the Tribunal did not look intensely into his problems. He said that the problems were for himself and not his family, the problem was only for him. He said that he had a lot of bills. He said he had to leave his parents and his children to come away, to save his life. He said that he is the only one who was blacklisted by the Communists and that he was the target.
Whilst the Applicant’s response was not particularly responsive to the question from the bench, I am of the view that the Applicant’s grounds 1 and 2 can, in fairness, be read together and, if so, the combined ground provides a more informative ground of review for the Court to consider.
Submissions
The Applicant was given the opportunity of making a general submission and he complained that the Tribunal did not let him talk at the hearing. He said that the Tribunal only asked questions and wanted him to respond to the questions. If he started to talk, he said that the Tribunal stopped him and told him just to answers the questions. He said to the Court that he said at the hearing what he had to say at the end. He told the Court that he had been honest and that he had committed no crime or done anything wrong in India.
The Minister’s lawyers have provided some helpful written submissions drafted by Ms Cairns, of counsel, who addressed the Court orally. Apart from relying on the written submissions, counsel for the Minister submitted that the matters put by the Applicant in his submission to the Court at the hearing effectively amounted to merits to review: they were no more than a challenge to the Tribunal’s factual findings.
There was one other issue raised in the Minister’s capacity as a model litigant. That issue related to the decision of this Court in SZNAV & Ors v Minister for Immigration & Anor[9]. That is a decision which referred to the acknowledgement letter which the Tribunal sent to an applicant for review and it contained the finding that the letter should in fact be construed as a request for information under the provision of s.424 of the Migration Act, as it stood at the time, and constituted jurisdictional error in that, by not allowing the applicant the prescribed time to provide the information, breached the provisions of sub-section 424B(2) of the Act, and for that matter regulation 4.35 of the Migration Regulations.
[9] [2009] FMCA 693
The submission was made that this Court should not follow the decision in SZNAV and that, instead, the Court should follow the decisions of SZNHU v Minister for Immigration & Anor(No.3)[10] and SZNJT v Minister for Immigration & Anor[11]. It was put that SZNAV was wrongly decided because the Tribunal’s acknowledgement letter, though identical for all relevant purposes with the detracted criticism in SZNAV, was not a request for additional information under sub-section 424(2) of the Act because the applicant had not provided any information with the application for review for it to be additional information and I was referred to the decision of the Full Court of the Federal Court of Australia in SZLPO v Minister for Immigration and Citizenship[12].
[10] [2009] FMCA 777
[11] [2009] FMCA 730
[12] (2009) 255 ALR 407; [2009] FCAFC 51
The Applicant was offered the opportunity to reply to those submissions and he indicated, quite reasonably, that he was not in a position to make any submissions on a point of law relating to the meaning of s.424 of the Migration Act, but he reiterated his claim that he was not given a full hearing by the Tribunal to tell all that he had to say. He said that he had been questioned and when he was replying the Tribunal would stop him. At the end the Tribunal asked him how he was affected and he expressed a fear that he was not able to answer the questions adequately.
Considerations
Grounds 1 and 2
Dealing with the Applicant’s grounds of review the Applicant’s grounds 1 and 2 claimed jurisdictional error and a failure by the Tribunal to carry out its review function and exercise its jurisdiction by not taking into account certain relevant considerations or integers central to the Applicant’s claims, in particular by not considering that the Applicant had been under immense and intimidating pressure from communist people.
The submission is that it is clear that the Tribunal did consider the Applicant’s claims, particularly at [53]–[56] of the Tribunal decision.[13] As counsel for the Minister submitted, the Tribunal rejected the Applicant’s claims on the basis of its adverse findings as to the Applicant’s credibility. It is also clear that the weight given by the Tribunal to the Applicant’s evidence is not a matter for judicial review. It was submitted, and I believe correctly, that the Tribunal did carry out its review function and exercised its jurisdiction when it considered the Applicant’s claims, particularly the claim of having been under immense and intimidating pressure from the communists.
[13] See Court Book at pages 142 – 143.
The fact is, and this applies to grounds 1 and 2 whether considered separately or together, that the Tribunal rejected those claims on the basis of its adverse findings about the Applicant’s credibility. It is well accepted that a finding on credibility is the function of the primary decision maker par excellence.
As has been described in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[14] per McHugh J, a finding in that case that an applicant’s claim was utterly implausible was essentially a finding as to whether the applicant in that case should be believed on his claim which his Honour described as finding on credibility, which was the function of the primary decision maker.
[14] (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 at [67]
Provided that there is evidence upon which the Tribunal can make those findings, which is the case for any factual finding, then a credibility finding by the Tribunal will remain undisturbed by a Court conducting judicial review. Essentially, credibility is a matter for the administrative decision maker, which in this case is the Refugee Review Tribunal. I am of a view that grounds 1 and 2, whether considered separately or together, do not establish any jurisdictional error and must therefore fail.
Ground 3
The Applicant claims a denial of procedural fairness by reaching adverse conclusions that his claims were implausible, being conclusions that were not obviously open on the known material, without giving the Applicant the opportunity to be heard in respect of those matters. The submission on behalf of the Minister, is that Division 4 of Part 7 of the Act, which includes ss.424A and 425, is an exhaustive statement of the relative procedural fairness requirements, and that is provided by s.422B of the Migration Act.
The Applicant claims that he was not given the opportunity to be heard and it was submitted that the Tribunal’s findings that his claims were implausible, would not enliven sub-section 424A(1) of the Migration Act. The reason for that is that first, Independent Country Information is excluded by the provisions of sub-section 424A(3)(a); second, information provided by the Applicant for the purpose of the review, which includes information at the hearing, is excluded by sub-section 424A(3)(b), and third, information contained in the Applicant’s protection visa application is excluded by sub-section 424A(3)(ba).
It is further submitted that as was made clear by the High Court of Australia in SZYBR v Minister for Immigration and Citizenship[15], that information does not encompass the Tribunal’s subjective appraisals, thought processes or determinations. I am of the view that that submission is correct. I am further of the view, however, that if this ground is a claim that the Applicant did not receive procedural fairness under s.425 of the Act, as identified by the High Court in SZBEL v Minister for Immigration and Citizenship[16], then that claim must also fail.
[15] (2007) 238 ALR 609 at 616
[16] [2006] 228 CLR 152 at 163
The fact is that the delegate at the interview expressed doubts as to the veracity of the Applicant’s claim.[17] The Tribunal at the hearing put squarely to the Applicant that credibility was an issue in his case.[18] The Tribunal noted that the Applicant’s reply to the concerns raised by the Tribunal, in which he stated that he provided a truthful account of his circumstances and was fearful that he would be killed by communists if he returned to India.
[17] See Court Book at page 71.
[18] See Court Book at page 140 at [49] of the Tribunal’s decision.
Again, the Tribunal’s concerns about the Applicant’s credibility were put to the Applicant in the Tribunal s.424A letter of 11th March 2009.[19] The Applicant was given until 3rd April 2009 to provide written comments or response by then, but appears not to have done so.
[19] See Court Book at pages 228 and 229.
I am of a view that the Applicant was at all times made aware by the Tribunal at and after the hearing, that credibility was the issue in this case, and was given adequate opportunity to be heard. Indeed, it is clear that he was heard when he put his reply at the Tribunal hearing. The fact that he did not reply when the concerns were put to him after the hearing in the s.424A letter of 11th March 2009, is a matter for the Applicant. Accordingly, ground 3 must fail.
Ground 4
Ground 4 claims that the Applicant satisfies the four key elements of the Convention definition as detailed in pages 2 and 3 of the Tribunal decision.[20] The Applicant claims that the Tribunal had not considered that aspect and therefore committed factual and legal error.
[20] See Court Book at pages 134 and 135.
There are two answers to that: first, it is clear from the decision that the Tribunal was well and truly aware of the matters relating to the definition of a refugee and set them out in its decision. It considered the Applicant’s factual claims and set those out at [53]-[60] of the decision record. It considered those matters and rejected that based on its adverse findings as to the Applicant’s credibility.
There was evidence available to the Tribunal, which would allow it to make those factual findings. It is therefore not the task of this Court to entertain a challenge to the Tribunal’s factual findings, and that would amount to merits review of the Applicant’s refugee claims and it is not permissible for the Court to undertake that exercise. The Applicant’s fourth ground fails.
Conclusion
I am mindful of the fact that the Applicant is not legally represented in these proceedings. He has, however, had the benefit of advice or an opportunity to have advice from a barrister who was on the Refugee Review Tribunal Legal Advice Scheme. The report given to the Court by the barrister concerned indicates that a meeting did not take place because the panel member was not able to make contact with the Applicant on the mobile phone number given. Clearly, the Court in these circumstances, noting the Applicant was not legally represented at the hearing, should consider whether there is an arguable case for jurisdictional error. In particular, the Court should consider whether there is any breach of any of the sections which go to jurisdiction, in Division 4 of Part 7 of the Act. I have already considered s.424A of the Act and I am satisfied that no breach of that section has taken place.
I have considered one aspect of s.425, namely the issue of whether the Applicant received a fair hearing in that the issues discussed at the Tribunal were matters of which he was made aware, and I am satisfied that no breach occurred in that way.
I do, however, consider the procedural requirements of s.425 in any event. The Applicant was invited to attend a hearing of the Tribunal. The Tribunal wrote to him on 22nd January 2009. It informed him of the time, date and place of the hearing. It wrote to him at the address that he gave for correspondence, and the letter advised him:
Please note that the Tribunal may make a decision without further notice, if an applicant invited to appear before the Tribunal fails to attend the scheduled hearing.[21]
[21] See Court Book at page 78.
That of course is advice as to the effect of s.426A of the Act. Thus I am satisfied that the “Invitation to the Hearing” complies with the requirements of s.425A of the Act. The Tribunal informed the Applicant that he would have the assistance of a Tamil interpreter, which is the interpreter that he asked for. He had the assistance of a Tamil interpreter at the hearing. There is no claim made that the skills of the interpreter at the hearing were in any way lacking so that the Applicant did not receive a fair hearing through interpreting failure.
The Applicant did, however, in his oral submission, raise a complaint that he was not able to present his case adequately to the Tribunal, because he was required mainly to answer questions and he said that his oral evidence was in some way truncated by the Tribunal Member. He did, however, say that at the end he was able to say what he wanted to say, but he expressed the fear that he was not able to answer the Tribunal’s questions adequately.
There is no affidavit or transcript relating to the Tribunal hearing. The only evidence of the Tribunal hearing that is before the Court is the Tribunal decision record. There is nothing in the decision record that indicates that the Applicant was not able to present his case adequately and fully. Rather the reverse is true.
I am satisfied that the provisions of s.425 of the Migration Act have been met in all respects; that there was no procedural unfairness. I am satisfied that there is no breach of any section contained in Division 4 of Part 7, which as we know contains the requirements of the natural justice hearing rule insofar as it applies to matters before the Refugee Review Tribunal.
What, however, the Court is left with is the issue raised by counsel for the Minister about matters referred to in SZNAV. In SZNAV it was held that the acknowledgement letter was in effect an invitation to provide additional information under s.424 of the Act. The letter, by not providing the specified time for the Applicant to provide that information but seeking the Applicant should send the material in immediately, was held to be a jurisdictional error in that it contravened the requirement of sub-section 424B(2) of the Act and regulation 4.35 of the Migration Regulations.
I have previously indicated that I am not satisfied that the acknowledgement letter in the form in which it appeared in SZNAV, which is identical to the form in which it is in the matter under review, constitutes request for information under s.424. I have set that out specifically in SZNHU, and more recently in WZANN v Minister for Immigration and Anor (No.2) [2009] FMCA 802 at [58] – [63], and even more recently in SZNPH v Minister for Immigration & Anor[22] at [38] – [44] inclusive.
[22] [2009] FMCA 788
I am satisfied that the acknowledgement letter is not a request for information under s.424. I note that I now have evidence in this matter from the Supplementary Court Book that the acknowledgement letter in the matter under review was sent out before the Tribunal was constituted, which is a matter that was not satisfactorily resolved before Smith FM in SZNJT. I have expressed the view in SZNPH that was an argument then that may have some force. Although, in SZNPH at [40] and [41] I was not of the view that the evidence before me was sufficient for me to make that finding and note in the currently under review I am satisfied that the notice of constitution is sufficient for me to make that finding.
The other matter that is relevant is that it was found in SZNAV, which, with respect, I am not following, just as, with respect, I am following the decision of Smith FM in SZNJT, which I believe to be correctly decided, but the jurisdictional error identified by Raphael FM in SZNAV was a breach of sub-section of 424B(2) of the Act.
In my view and with the very greatest of respect, the decision of Buchanan J in SZLWQ v Minister for Immigration and Citizenship[23], is authority and binding authority for the proposition that not specifying a period in an invitation under s.424, does not constitute a breach of sub-section 424B(2).
[23] [2008] FCA 1406
In SZLWQ, which, with respect, I am unable to distinguish in the matter before me and as I said, is binding upon this court, Buchanan J said at [52]:
[52] Section 424B(2) on its face directs that ‘information or comments are to be given within a period specified in the invitation’. It does not, in terms, impose a direct obligation on the RRT about the terms of the invitation (cf. s.424B(1) – ‘the invitation is to specify ...’). The consequence of any failure to specify a period is that the facility in s.424C of proceeding to a decision in the absence of the information might not be available but I do not see s.424B(2) as establishing the kind of obligation on the RRT which could lead to either statutory breach or jurisdictional error.
In my view, with respect, that decision is definitive and establishes quite clearly that a request for information under s.424, even if I were satisfied that the acknowledgment letter was such a request, and I am not, which does not specify a period within which the information is to be provided, does not of itself constitute jurisdictional error as a breach of sub-section 424B(2). At worst, as his Honour clearly points out, it just means that the Tribunal cannot proceed in the way set out in s.424C. If I am wrong in all of this (and I do not believe that I am) in my view any procedural irregularity would not be such as to go to jurisdiction, and even if it were argued then I would not be persuaded that I should grant relief in the circumstances.
However, my firm view is that the Tribunal’s acknowledgement letter, as it was in the matter under review, does not constitute a request for information under s.424, and even if it did, the failure to specify a period within which the information is to be provided under sub-section 424B(2), would not constitute jurisdictional error.
After that examination I am satisfied that no jurisdictional error appears in the Tribunal decision. In the absence of jurisdictional error the Tribunal decision is a privative clause decision, as defined by sub-section 474(2) of the Migration Act. Under sub-section 474(1) a privative clause decision is final and conclusive and it is not subject to orders in the nature of certiorari mandamus or prohibition, injunction or declaration. It follows that the application must be dismissed.
There is an application for costs on behalf of the First Respondent Minister in the sum of $4,700.00. The Applicant has been unsuccessful in his claim and as has been put by counsel for the Minister, costs usually follow the event.
The Applicant says that he does not have the means to pay the costs, but that is not a reason not to make a costs order. The amount sought is $4,700.00 which is an amount well below the figure provided in the schedule in the Court’s Rules.
I am satisfied it is appropriate to make an order for costs in favour of the First Respondent and I am satisfied that $4,700.00 is an appropriate figure. I am mindful, however, of the Applicant’s situation. He does not have the means to pay and he has indicated that he is not in employment nor has he been in employment since he arrived in Australia. Clearly, he would find a costs order, especially one requiring him to pay costs within 28 days, an onerous obligation. I believe it is appropriate to allow time to pay. I propose to allow six months to pay.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 11 September 2009
11
2