SZNPW v Minister for Immigration
[2009] FMCA 755
•28 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNPW & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 755 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – political opinion – citizen of India claiming fear of persecution for reason of political and religious opinion – whether Tribunal failed to comply with the requirements of Migration Act 1958 (Cth) s.425(1) by not providing the applicants with an opportunity to appear before the Tribunal – where applicant attended a hearing conducted by video-conference – no jurisdictional error where Tribunal hearing is conducted by telephone or closed-circuit television or other means of communication – relocation – country information – what country information to be relied on is a matter for the Tribunal – no obligation on the Tribunal to conduct its own investigations – allegation of bias – no evidence of bias – whether the Tribunal failed to comply with Migration Act 1958 s.424B – Tribunal’s letter of acknowledgment of the application for review did not amount to an invitation under Migration Act 1958 s.424(2) – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424, 424A, 424B, 424C, 425, 425A, 429A |
| SZJTK v Minister for Immigration & Anor [2008] FMCA 839 cited SZJYD v Minister for Immigration & Anor [2007] FMCA 452 cited SZJYD v Minister for Immigration & Citizenship [2007] FCA 798 followed SZJTK v Minister for Immigration & Citizenship [2008] FCA 1712 followed SZATV v Minister for Immigration & Citizenship [2007] HCA 40 followed SZFDV v Minister for Immigration & Citizenship [2007] HCA 41 cited Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992 followed SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1811 followed SZNAV & Ors v Minister for Immigration & Anor [2009] FMCA 693 distinguished MZXRE v Minister for Immigration [2009] FCAFC 82 followed. |
| First Applicant: | SZNPW |
| Second Applicant: | SZNPX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1218 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 28 July 2009 |
| Date of Last Submission: | 28 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2009 |
REPRESENTATION
| First Applicant: | Appeared in person |
| Solicitor for the Respondents: | Mr Baird |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicants are to pay the First Respondent's costs fixed in the sum of $3,850.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1218 of 2009
| SZNPW |
First Applicant
| SZNPX |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicants in this matter are a husband and wife from Gujarat in India. They ask the Court to review a decision of the Refugee Review Tribunal made on 27th April 2009. The Tribunal affirmed the decisions not to grant the Applicants Protection (Class XA) visas.
The Applicants claim that the Tribunal fell into jurisdictional error and, in their application, they have set out five grounds of review. The Minister opposes the application, by means of a Response that was filed on 26th May 2009.
Background
The Applicants arrived in Australia on 13th September 2008. On 24th October in that year, they applied for Protection (Class XA) visas. Only the First Applicant has made a claim for refugee status. His wife, the Second Applicant, is a Part D Applicant and bases her application for a visa on the fact that she is a member of the First Applicant's family unit.
The First Applicant submitted a one-and-a-half-page typed statement with his application. In that statement he sets out to explain his claims for a protection visa, saying:
So that I do not have to go back to India, where I had been persecuted by extremists and government authority.[1]
[1] See Court Book at page 34.
The basis of the Applicant's claim arises from the Convention grounds of religion and political opinion. The Applicant set this out in his statement, saying:
My parents were congress supporter [sic]. I was born and brought up in moderate Hindu family. The place where I grew up was surrounded by Muslims [sic] community. As I grew up, I could see the social condition becoming more and more vitiated by communal and racist forces -
He goes on to claim:
I am perceived as a person with political opinion opposed to the majority Hindus [sic] and the government's discriminatory policy towards the minority. Because of my secular opinion and sympathy for the minority, I had been harassed and humiliated by the BJP and VHP members.[2]
[2] See Court Book at page 35.
The Department of Immigration & Citizenship wrote to the First Applicant, inviting him to attend an interview with a Departmental officer on 16th October 2008. On 22nd January 2009 a delegate of the Minister refused the applications for protection visas. In the delegate's decision, the delegate set out that there were a number of factors which raised significant doubts as to the veracity of his claims. The delegate set those out. The delegate also considered the question of relocation within India and said:
I have also considered whether the applicant is reasonably able to relocate to India.
I think that should mean "within India":
The applicant claims that if he were to remain in India, he runs the risk of being killed by Hindu extremists.
Independent country information suggests that relocation in the case of Indian citizens is feasible.[3]
[3] See Court Book at page 53.
Application to the Refugee Review Tribunal
After the delegate of the Minister refused the applications for protection visas, the Applicants applied to the Refugee Review Tribunal for a review of that decision. The Tribunal received a copy of that application, which was delivered by hand, on 13th February 2009.[4]
[4] See Court Book at page 55.
In that application the Applicants set out their home address, in a country town in the State of New South Wales, and gave a post office box number in that town as their address for correspondence. The Tribunal wrote to the Applicants on 13th February 2009, by registered post. That letter was headed "Acknowledgment of Applications" and advised the parties that the Tribunal had received the applications for review, and set out information and made certain requests of the Applicants, with which I will deal a little bit later in this decision. The letter, dated 13th February 2009, can be found in the Court Book, at page 59.
On 12th March 2009 the Tribunal wrote to the Applicants, inviting them to attend a hearing. The hearing was scheduled for 9:30am on 17th April 2009 and the location was given as a College of Technical and Further Education, in the same country town as the Applicants resided. A note appeared on the letter, saying:
Arrangements have been made to conduct the hearing by video conference. The Member and interpreter will be in Sydney. If there is a preference to attend in person in Sydney, please contact the Tribunal as soon as possible.[5]
[5] See Court Book at page 61.
The Applicants replied to that invitation by means of a ‘Response to Hearing Invitation’, which was received by the Tribunal on 31st March 2009. The Response indicated that the First Applicant, the husband, would attend the hearing, but the Second Applicant, his wife, would not. The Response indicated that the First Applicant would require an interpreter in the Gujarati language and had no special requirements or preferences.
The First Applicant did indeed attend the hearing conducted by video conference on 17th April 2009. At that hearing he gave evidence, with the assistance of an interpreter in the Gujarati language.
The Tribunal’s Decision
The Tribunal made its decision on 27th April 2009 and posted a copy of that decision to the Applicants, at the address for correspondence, on 28th April 2009. The Tribunal affirmed the decisions not to grant the Applicants Protection (Class XA) visas.
In the Tribunal decision record, the Tribunal set out the Applicants' claims and evidence, taken from their application for a protection visa. The Tribunal also referred to the First Applicant's oral evidence to the Minister's delegate at the interview on 16th December 2008.
The Tribunal stated that it had listened to an audio‑recording of the interview and it provided a summary of the Applicant's evidence. The Tribunal also set out a summary of the evidence of the First Applicant to the Tribunal at the hearing conducted by video link on 17th April 2009. I note that at the hearing the First Applicant indicated his concern that he was targeted by both the BJP and the VHP and threatened by them and, if he were to go back to India, his life would be at risk.
The Tribunal then considered the question of relocation at the hearing. The Tribunal said:
The applicant was asked why he would be unable to relocate internally within Gujarat. He said his enemies could harass his family and find out his whereabouts. He was asked why he would be unable to relocate to another state in India. He said his father prevented him to go to another state. He was asked why his father had allowed him to come to another country. He said he could be found in another State as "they" have a wide network. It was put to him that India is a large, populous country and it would be difficult to believe that he would be found anywhere in India.[6]
[6] See Court Book at page 75.
The Tribunal’s Findings and Reasons
In the Tribunal's findings and reasons, the Tribunal found that there were a number of discrepancies between the Applicants' claims as presented to the Department and the First Applicant's oral evidence to the Tribunal. The Tribunal noted, however, that at the hearing the First Applicant said that his evidence to the Tribunal was the truth.
The Tribunal noted that the First Applicant's claims were based on the Convention grounds of political opinion and religion and summarised that claim. However, the Tribunal had some doubt about the veracity of the First Applicant's evidence. In particular, the Tribunal found that his evidence cast doubt over his claims relating to being a member of the Congress Party, and was not satisfied that he was an active member of the Congress Party. However, the Tribunal was prepared to accept that, because of his father's membership of the party, the First Applicant had shown interest in the party and may have supported it and was seen to be associated with the party.
The Tribunal considered the Applicant's claims of being harassed and threatened and noted that he had effectively abandoned the claim to have been tortured in the brief periods of time that he was in police custody. The Tribunal was satisfied that the Tribunal faced by the Applicant at the hands of the local authorities did not amount to serious harm, and that the authorities had no genuine ongoing interest in him. There was nothing in his evidence to suggest that the nature of the police interest in him may change in the reasonably foreseeable future or that he faced a harsher treatment for any reason if he were to go back. The Tribunal found, at [63]:
The Tribunal is satisfied that if the applicant were to return to his locality and continue to engage in the same activities he was engaged in before his departure, there is no real chance that he would be seriously harmed by the BJP, the VHP or other Hindu extremists in his area.[7]
[7] See Court Book at page 77.
The Tribunal then considered the question of relocation, although it felt that this was not necessary. The Tribunal said:
64. Having regard to the above findings, it is not necessary to consider the issue of relocation. However, as this issue was canvassed with the applicant during the hearing, the Tribunal has addressed it for the sake of completeness.
65. The applicant's evidence clearly suggests that his fears are confined to his locality. He has provided no persuasive reason as to why, and the Tribunal is not satisfied that, he would be unable to relocate to a different locality in Gujarat or to a different state, in order to avoid his opponents. The Tribunal is satisfied that if the applicant wished to avoid those harassing him in his locality, including the authorities, it would be reasonable for him to relocate to a different part of India.[8]
[8] Ibid at [64] and [65]
The Tribunal did consider some independent sources on that basis. The Tribunal was satisfied that the First Applicant's fear of persecution in India, for the reason of his express or imputed political union, religion, membership of a particular social group or any other Convention reason, was not well-founded. Accordingly, it found that he did not satisfy the criterion set out in s.36(2)(a) for a protection visa.
The Tribunal noted that the Second Applicant applied on the basis of her membership of the first-named Applicant's family and that the fate of her application depended on the outcome of his. The Tribunal found:
As the first-named applicant does not satisfy the criterion set out in s.36(2)(a), it follows that the other applicant cannot satisfy the relevant criterion set out in s.36(2)(b) and cannot be granted a visa.[9]
[9] See Court Book at page 78.
Thus the Tribunal affirmed the decisions not to grant the two Applicants Protection (Class XA) visas.
Application for Judicial Review
The Applicants commenced proceedings in this Court for review of that decision, by filing an application and an affidavit in support on 20th May 2009. The application was listed for Final Hearing today.
The First Applicant has attended Court today and advised that his wife was not present, but he told the Court that he had authority to address the Court on her behalf. I note that he has had to travel a long distance by bus today and that he is scheduled to return this afternoon, and will be obliged to undergo an equally lengthy bus trip. It was for that reason that the Court adjusted the hearing time, so that the hearing did not commence until 11:30am. The aim of this was to provide the Applicant, or Applicants, with sufficient time to attend Court, bearing in mind the estimated time when the bus from the country town in which they reside arrives in Sydney.
Grounds of Review
The application contains five grounds of review.
1.The Tribunal failed to provide the applicant with an opportunity to appear before it, and thus failed to comply with the mandatory requirements of s. 425(1).
Particulars:
(i) Section 425 mandates an oral hearing at which both the Applicant and the Tribunal are physically present (giving the word "before" its natural English meaning, in the context, of ‘in front of’) in the one place, in order that the Applicant may present their case.
(ii) The Tribunal was not physically present at the hearing, because the Tribunal was in Sydney, and thus the applicant did not ‘appear before’ the Tribunal.
2. I refer SZATV v Minister for Immigration & Citizenship [2007] HCA principles of relocation principles. Failing to accord proper procedural fairness in accordance with the internal relocation within the country.
3. The Tribunal did not use the country information as specific however, general information gathered by the Tribunal considered to weigh against my case in the final outcome.
4. The applicants satisfy the four key elements of the Convention definition, as detailed in page [sic] 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
5. The RRT has failed to investigate applicant's claim, specially the grounds of persecution, in India. Therefore, the Tribunal decision dated 28 April 2009 was effected[sic] by actual bias constituting judicial error.
Submissions
The First Applicant attended Court and made a brief oral submission. He indicated that he wished to rely on his written material and said that his life was at risk because of the BJP and that he could not return to India for that reason.
Ground 1
Dealing with the grounds in the application in turn, the first ground takes issue with the fact that the Tribunal hearing was conducted by way of video conference and claims that it did not comply with the mandatory requirements of s.425(1). The claim is that s.425 mandates an oral hearing, at which both the Applicant and the Tribunal are physically present. This is in fact an argument that has previously been dealt with, not only by this Court but on appeal.
The very same ground was argued in SZJTK v Minister for Immigration & Anor[10]. In that decision, Barnes FM dealt with the issue at [31]-[35]. Her Honour found that there was no error by the Tribunal and referred to the provisions of s.429A of the Migration Act. Her Honour also referred to the decision of Smith FM in SZJYD v Minister for Immigration & Citizenship[11], and the appeal decision, SZJYD v Minister for Immigration & Citizenship[12]. No error was found. In SZJTK v Minister for Immigration & Citizenship[13], Reeves J dealt with the appeal from the provisions of the Federal Magistrates Court at [21] -[28]. His Honour considered that Barnes FM had not made any error and the argument raised in paragraph [1] of the appellant's outline of written submissions had no merit and must be rejected.
[10] [2008] FMCA 839
[11] [2007] FMCA 452 at [30]
[12] [2007] FCA 798
[13] [2008] FCA 1712
It is quite clear that this particular ground has been argued, and argued unsuccessfully, both at first instance and on appeal. The argument is directed at s.425 of the Act, but it completely ignores the existence of s.429A. That section says:
Section 429A - Oral evidence by telephone etc.
For the purposes of the review of a decision, the Tribunal may allow the appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed‑circuit television; or
(c) any other means of communication.
Quite clearly, ground 1 of the application is misconceived and must fail.
Ground 2
The second ground in the application refers to relocation. It says:
I refer SZATV v Minister for Immigration & Citizenship [2007] HCA principles of relocation principles. Failing to accord proper procedural fairness in accordance with the internal relocation within the country.
The Tribunal correctly stated that it did not need to consider that matter. That was because it had considered the claim by the First Applicant to have a well-founded fear of persecution for the Convention reasons of religion and political opinion, and had rejected that ground.
As the Tribunal was not satisfied that the First Applicant had a well‑founded fear of persecution for Convention reasons, there was no obligation to consider the question of relocation. However, the matter had been raised with the Applicant at the hearing and, indeed, had been raised in the decision of the delegate to refuse the application for protection visas. The Tribunal then proceeded, for the sake of completeness, to deal with the issue of relocation.
The High Court of Australia has considered the relocation principles in two decisions, which were both handed down on 30th August 2007. They are SZATV v Minister for Immigration & Citizenship[14], and SZFDV v Minister for Immigration & Citizenship[15]. The High Court has considered the relocation principles at [19] and [23]-[26] of SZATV. At [23], their Honours Gummow, Hayne and Crennan JJ said:
[23] The Minister framed the issue, for a situation such as that presented by this appeal, as being whether it be reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. This formulation does not suffer from the defects urged by the appellant. It does not turn upon a "hypothetical assumption", nor does it prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a "safe area" within the country of nationality as determinative of the existence of a well-founded fear of persecution.
[14] [2007] HCA 40
[15] [2007] HCA 41
Their Honours expanded on that in [24] and [25] and said in [26]:
Nevertheless, in particular cases territorial distinctions may have an apparent connection with the particular reason for the asserted well-founded fear of persecution. There may be instances where differential treatment in matters of, for example, race or religion, is encountered in various parts of the one nation state so that in some parts there is insufficient basis for a well-founded fear of persecution. However, in other cases the conduct or attribute of the individual which attracts the apprehended persecution may be insusceptible of a differential assessment based upon matters of regional geography.
In my view, the Tribunal's consideration of the reasonableness of relocation of the Applicants within India, even though unnecessary in the circumstances, does not offend against the principles set out by the High Court in SZATV.
Accordingly, the second ground fails.
Ground 3
Ground 3 says:
The Tribunal did not use the country information as specific. However, the general information gathered by the Tribunal considered to weigh against my case in the final outcome.
It is the Tribunal which decides what information it will consider, it is for the Tribunal to decide whether it will accept or reject country information. The weight to be given to country information is entirely a matter for the Tribunal. It is part of the Tribunal's fact-finding function.
The complaint by the Applicants that the country information weighed against their case in the final outcome is, in effect, a challenge to the Tribunal's factual findings and amounts to merits review, which is not available before a Court conducting judicial review of an administrative decision.
Ground 3 must fail.
Ground 4
Ground 4 says:
The applicants satisfy the four key elements of the Convention definition, as detailed in page [sic] 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.
The Tribunal, in its decision, sets out what it describes as "the four key elements of the Convention definition of a refugee"[16]. There is no legal error in the way the Tribunal has set out those four key elements. The Applicants have not provided any evidence to point to instances of the Tribunal failing to consider any particular relevant piece of information going to one or other of these four key elements, and the ground is, again, a challenge to the Tribunal's factual findings.
[16] See Court Book at pages 70 and 71.
A fair reading of the Tribunal decision shows that the Tribunal did consider the case advanced by the Applicants and considered not only the grounds of religious belief and political opinion advanced by the Applicants but also whether the Applicants had a well-founded fear of persecution by reason of the Convention heading of "Membership of a particular social group".
I am satisfied that ground 4 must fail.
Ground 5
Ground 5 says:
The RRT has failed to investigate applicant's claim, especially the grounds of persecution in India. Therefore, the Tribunal decision dated 28 April 2009 was effected[sic] by actual bias, constituting judicial error.
Interestingly enough, this particular ground was also a ground argued in SZJTK v Minister for Immigration & Citizenship[17]. His Honour Reeves J sets out that particular ground at paragraph [15] of the decision. This ground was also rejected by his Honour, at [29], where his Honour said:
[29] In paragraph (2) of the appellant’s outline of written submissions, he makes the bald allegation that the Tribunal’s decision was "effected (sic) by actual bias". This is a serious allegation. It is not particularised and no evidence has been adduced to support it. It follows that it has not been distinctly made or clearly proved as required by authority: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. It follows that this complaint has no merits and I refuse the appellant leave to raise it for the first time on this appeal.
[17] [2008] FCA 1712
There is, of course, in this ground in the application before me, a claim (also in ground 5) that the Tribunal failed to investigate the Applicant's claim, especially the grounds of persecution in India. It is well‑established that there is no general obligation on the Refugee Review Tribunal to conduct its own investigations. This has been made clear by the High Court of Australia in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB[18]. The matter has been referred to in the decisions of Gleeson CJ, at [19], and the joint judgment of Gummow and Hayne JJ, at [43]. At [43], their Honours referred specifically to s.427 of the Act, saying:
Secondly, whilst s.427 of the Act confers power on the Tribunal to obtain a medical report[15], the Act does not impose any duty or obligation to do so. Rather, s 426[16] provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire.
[18] [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992
The matter has also been succinctly set out in the decision of SZBKB v Minister for Immigration & Multicultural & Indigenous Affairs[19]. In that decision, her Honour Bennett J said, at [8]:
It is well accepted that the powers of the Tribunal to make an investigation under the Act do not give rise to any mandatory investigation; Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Cassim [2000] HCA 50; (2000) 175 ALR 209 at [13]. It is for the appellant to present to the Tribunal material necessary for it to achieve the requisite satisfaction.
[19] [2005] FCA 1811
Her Honour went on to say, at [9]:
No jurisdictional error is demonstrated. The Tribunal was not obliged to conduct its own investigation.
Similarly, in the case before me, the Tribunal was not obliged to conduct its own investigation of the Applicants' claims of a well‑founded fear of persecution in India. There was, of course, no question of bias and that has already been dealt with.
Ground 5 fails.
Other Considerations
There are two other matters that the Court needs to look at. First, I am satisfied that there is no breach of s.425 of the Migration Act, in that the Tribunal gave the Applicants sufficient time to attend the hearing, and the letter of invitation complied with s.425A of the Migration Act. Notwithstanding the claim already raised that the Tribunal breached s.425 because the hearing was conducted by video link, it is noteworthy that the Applicants were given the opportunity to state if they wished to travel to Sydney for the hearing and they chose not to. The Tribunal did deal with the issue of relocation at the hearing, which was an issue that the delegate had referred to in some detail in the delegate's decision. No issues of s.424A of the Migration Act apply.
Mr Baird, who appears for the Minister, has, however, for more abundant caution, raised with the Court the recent decision of SZNAV & Ors v Minister for Immigration & Anor[20]. In that decision the Court found that there was a jurisdictional error arising from the Tribunal's letter of acknowledgement of the application to the RRT for review of the delegate's decision. The jurisdictional error complained of, the Court found, was a failure to comply with s.424B of the Act.
[20] [2009] FMCA 693
Clearly, I am obliged to consider that. In my view, however, I should not follow the decision in SZNAV. It is noteworthy that, in his consideration of the issues, Raphael FM considered the decision of MZXRE v Minister for Immigration[21]. His Honour noted that the Full Court, North, Graham and Rares JJ, accepted the submissions that a letter which sought additional information, but not did not specify the prescribed period for response, was not an invitation within the meaning of s.424(2) of the Act. In that decision their Honours said:
[8] It is common ground that this letter did not amount to an invitation to the appellant to give additional information within the meaning of s.424(2) of the Act. This was because it had not specified a date, in accordance with s.424C(1)(b), before which any information had to be provided.
[21] [2009] FCAFC 82
In SZNAV, Raphael FM distinguished the decision in MZXRE on the basis of the letter referred to in that decision being different, crucially, in its wording from the letter which his Honour had to consider is SZNAV.
In my view, in the matter under review, the Court cannot distinguish the decision in MZXRE because the letter written by the Tribunal to the applicants on 13th February 2009 was not identical to the letter referred to by his Honour in SZNAV, but was, for all relevant purposes, identical to the form of letter considered by their Honours in MZXRE.
In the letter in the matter before me, which, as I said, was dated 13th February 2009, the letter acknowledged receipt of the application, advised the Applicant about certain things which would happen and said:
If you wish to provide material or written arguments for the Tribunal to consider, you should do so as soon as possible.[22]
[22] See Court Book at page 59.
As was set out in [29] of SZNAV, the letter referred to in MZXRE said:
You are invited to provide any documents or written arguments you wish the Tribunal to consider which you have not already provided to the Tribunal. Any documents should be provided as soon as possible.
In SZNAV, Raphael FM went on to say:
[29]There is a fundamental matter which differentiates this letter from the letter currently under consideration. It is that the letter in MZXRE invites the applicant to provide “documents” and “written arguments” but does not make a request for “information” as such. A document is not considered “information” and therefore not “additional information” under s.424(2); SZLPO at [110].
In my view, the letter referred to in the matter before me, although it offers the opportunity to the Applicants, if they wish, to provide "material or written arguments for the Tribunal to consider", it is essentially the same as the letter in MZXRE and so different from the letter in SZNAV that SZNAV does not apply.
Indeed, in my view, the decision in MZXRE does apply, it is a Full Court decision, on appeal from the Federal Magistrates Court, and it is binding upon me. Therefore, I am satisfied that the letter by the Tribunal to the Applicants dated 13th February 2009, acknowledging their applications, does not breach the requirements of s.424B of the Migration Act and there is no jurisdictional error.
Conclusion
I am satisfied that no jurisdictional error has been made out in respect of any matter in the Tribunal decision and, accordingly, in the absence of jurisdictional error, the decision is a privative clause decision, as defined by s.474 of the Migration Act. As such, it is not subject to orders in the nature of certiorari, mandamus or prohibition, as the Applicants seek. 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 $3,850.00. The Applicants have been unsuccessful in their claim and it follows that an order for costs should be made in favour of the successful Respondent. The amount sought is $3,850.00. That is a figure significantly below the limit set by the Federal Magistrates Court Rules. It is an appropriate order.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 13 August 2009
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