FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQCJ v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 678 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether breach of natural justice – whether breach of procedural fairness – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.5, 422B, 424AA, 424A, 425, 425A, 426, 441A, 441C, 476 Migration Regulations 1994 (Cth), reg.1.12, 4.35D |
| Applicant: | SZQCJ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 774 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 24 August 2011 |
| Date of Last Submission: | 24 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2011 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr JAC Potts |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 31 March 2011 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,240.
The operation of these orders is stayed until 31 August 2011.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 774 of 2011
| SZQCJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 31 March 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 4 March 2011, which affirmed the decision of a delegate of the Minister for Immigration and Citizenship to refuse a protection visa to the applicant.
Background
The Court Book (“CB”) filed in these proceedings reveals the following background.
The applicant is a citizen of India. He last arrived in Australia on 19 June 2010. He applied for a protection visa on 30 July 2010 (CB 1 to CB 30). In this application the applicant applied as the family member of another applicant for a protection visa on the basis of a “de facto” homosexual relationship (CB 25 and CB 17).
The applicant subsequently submitted claims in his own right to be owed protection by Australia on 8 October 2010 (CB 50 to CB 63). The applicant’s claims were that he had been in a “de facto” homosexual relationship with another Indian national for three years.
It was claimed that this relationship had commenced and developed while both were employed by a member of the Qatari royal family.
It was as part of this employment that the applicant was given permission to enter Australia.
The claim was to fear harm in India because information had been provided by “someone” in Qatar to “persons in India” about the homosexual relationship. The claim was that the applicant’s “partner” had received threats of harm from the “Popular Front” in India
(a religious group).
The Delegate
The delegate found inconsistencies in the applicant’s claims and “significant inconsistencies” in the accounts provided by the applicant and his claimed “partner” (CB 77 to CB 78). On this basis, the delegate found that the applicant was not a “credible, truthful and reliable witness” and rejected the factual basis underpinning the application. Namely that the applicant was a homosexual.
The Tribunal
The applicant applied for review of the delegate’s decision to the Tribunal on 2 December 2010 (CB 94 to CB 98). He attended a hearing before the Tribunal on three occasions (16, 23 February 2011 and 2 March 2011 – CB 100 to CB 108). The hearing appears to have been concurrent with a hearing in relation to the applicant’s “partner’s” application for review. The Tribunal’s account of the hearing reveals that the applicant gave evidence in his own cause and as a witness for the “partner”.
In essence, the applicant’s claim to fear harm in India was that he would be attacked by members of the “Popular Front” because of his homosexuality. He, and his “partner”, variously claimed to have been attacked by members of the “Popular Front” in India in the past.
Beyond accepting that he was an Indian national, the Tribunal found that it was: “… not satisfied that the applicant has provided a truthful and credible account of his circumstances or his fears of return to India” ([65] at CB 122).
The Tribunal found the applicant had fabricated a claim to be in a homosexual relationship and rejected the claims of harmful incidents in India as not being truthful. It rejected his claim to be a homosexual, to have been in a homosexual relationship with “anyone”, and that he was “of adverse interest to anybody because of his homosexuality” ([65] at CB 122).
The Tribunal gave detailed reasons for this, including its findings of implausible, unbelievable, dishonest and contradictory evidence from the applicant and his witness.
The Tribunal therefore found that the applicant did not have a
well-founded fear of persecution for a Convention reason and affirmed the delegate’s decision.
Application to the Court
The application before the Court is in the following bare terms:
“1. The decision made by RRT is Jurisdictional error.
2. Breach of Natural Justice.
3. Will be filed later.”
Despite opportunity to do so, nothing further has been filed by the applicant.
Before the Court
At the hearing before the Court the applicant appeared in person.
He was assisted by an interpreter in the Malayalam language. Mr JAC Potts of counsel appeared for the first respondent. In addition to the Court Book, the affidavit of Jennifer Isabella Ingram, solicitor, made on 16 August 2011, annexing a copy of the transcript of the Tribunal hearing (“T”), was read into evidence.
Consideration
I agree with Mr Potts that the grounds as stated are virtually meaningless. No particulars have been provided. The applicant was unable to assist in this regard.
As set out earlier, the applicant’s claim to protection, ultimately, was that he was in a homosexual relationship with another Indian national (known as SZQCI). The applicant before the Court had initially applied for a protection visa as a family member of SZQCI (CB 25).
He and SZQCI were subsequently advised by the delegate that he was not satisfied that the applicant was a member of SZQCI’s family unit. The reason given was that: “Sufficient evidence to substantiate the claimed de facto relationship has not been provided” (CB 44).
The advice was that the applicant may wish to provide his own claims to be a refugee.
The applicant now says that the Tribunal “breached natural justice”. He explained that what was meant by this was that both he and SZQCI had told the Tribunal that they wanted their cases to “stay together” and the Tribunal did not believe their account.
As to the latter, there is no jurisdictional error simply because the Tribunal did not accept his account. The Tribunal does not have to believe any or all of what an applicant puts to it (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265). The Tribunal’s task in the exercise of its jurisdiction is, amongst other things, to make findings of fact. These include findings as to credibility (Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parteDurairajasingham [2000] HCA 1; (2000) 168 ALR 407). The Tribunal in this case made such findings, all of which were open to it on what was before it, and for which it gave reasons.
The former has a number of aspects. First, contrary to the applicant’s assertion now, he was not directed by the delegate to make separate claims to be a refugee. He was merely advised that he could do so (CB 39.8). That the applicant did so does not reveal error in what the Tribunal did. For that matter, no error is apparent in the delegate’s action. With regard to the definition of “member of the family unit” for the purposes of the Act (see s.5 and reg.1.12 of the Migration Regulations 1994 (Cth) (“the Regulations”)), the finding was open to the delegate on the material before it. Second, and in any event, that decision by the delegate was not the decision put before the Tribunal for review, and therefore now before the Court.
To the extent that that decision may be said to be a part of the delegate’s decision to refuse the applicant a protection visa, and therefore reviewable by the Tribunal, even if there was error it would be “cured” by the Tribunal’s decision (Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1994] FCA 926; (1994) 48 FCR 294 at [14] to [21] per Wilcox J (not affected by appeals). See also Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495 at [92] to [96] per Gyles J, Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261 and Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314).
Third, the Tribunal’s conclusion that the applicant is not a homosexual in itself (if it is otherwise without jurisdictional error) has the consequence of affirming the delegate’s finding that the applicant and SZQCI were not in a homosexual or “de facto” relationship such as to encompass the applicant in any membership of SZQCI’s family.
In any event, the critical factor is that in the application for review the Tribunal was faced with two delegate’s decisions relating each to SZQCI and the applicant. In these circumstances, the Tribunal was obliged to review each application.
Fourth, the applicant claimed before the Court that the Tribunal told him that there was “one case” and therefore he expected one decision to encompass both him and SZQCI. This appeared to also be linked to his assertion that he was “forced” into submitting a separate application.
Nonetheless, it is clear that the Tribunal told the applicant that it was dealing with two separate delegate’s decisions (T9):
“A: The decision, he is asking decision affects both of them in the same way?
TM: Affects both.
I: Both of them at the same time in the same way?
TM: Yes, I’m essentially looking at two separate applications and making the same decisions in relation to each of them but that is not to say you will necessarily get the same decision, the same outcome, because I look at each case on an individual basis. But clearly there is an enormous amount of overlap between your applications because they are concerned about your relationship, so issues that are important in one case are probably important in another… in the other.
AP: What he is asking is that [unclear] one person’s case and the other person’s case [unclear].
TM: That is strictly… that is correct but it would be a most unusual outcome.
AP: Because they aren’t related [unclear].
TM: Yes I understand that. The more likely outcome is that the decisions would be the same for both of you because of the nature of your applications and the nature of what you’re relying on as your claims. That isn’t… that is not guaranteed but that is more likely. If I accepted that both of you were in the relationship you claimed and would suffer harm as a result of that, or might suffer harm as a result of that, it would be more likely that both of you would be found to be owed protection in Australia. However, if I didn’t accept those things to be true in relation to both of you, then I may find the department made the correct decision. So the issues are the same for both applicants although there might be different evidence in relation to each and what I can [unclear].”
Fifth, in the matter of SZQCI the Minister conceded jurisdictional error in the Tribunal’s decision. That error was that the Tribunal failed in its procedural fairness obligation to SZQCI because, although it considered that the subsequent application for a protection visa (putting forward refugee claims in his own right) made by SZQCJ was “information” that would be a part of the reason for affirming the delegate’s decision in relation to SZQCI, it was not put to him in the manner required by the Act.
The applicant now complains that if their cases had been considered together he too would be able to have his case reconsidered by the Tribunal. While not clear, the complaint was also that this should be the case because they are in a homosexual relationship.
While from a layperson’s perspective, and indeed from the applicant’s perspective, this complaint is understandable, it does not reveal error in the Tribunal’s decision for all the reasons referred to above.
Although it must be said that the Tribunal’s conduct of the hearings (as revealed in its decision record – including its findings), alternating between references to taking evidence from each of the parties in their own right, and from each as witnesses in the case of the other, could only lead to confusion for the applicants.
It certainly led to some confusion for the Tribunal, as the error conceded by the Minister in SZQCI arose from its failure to deal (in the case of SZQCI) with the piece of information put in by the applicant (SZCQJ) as being information in the case of SZQCI caught by the obligation in s.424A(1) of the Act.
In all, however, nothing said by the applicant before the Court reveals jurisdictional error in the Tribunal’s decision relating to him.
Turning to the grounds of the application, grounds one and three of the application are meaningless without anything further from the applicant.
Ground two asserts a breach of natural justice. No particulars are provided. In light of the applicant’s submissions to the Court (such as they were), this appears to be a complaint that it was unfair of the Tribunal not to treat them (he and SZQCI) as being “together”.
To the extent that this is a challenge to the Tribunal’s finding that the applicant was not in a homosexual relationship with SZQCI, then this is a challenge to a factual finding made by the Tribunal, and a request for impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481). The Tribunal’s finding was based on material before it, was open to it on this material, and it gave cogent reasons. No error is revealed.
To the extent that it can be said to be some broader assertion of a denial of procedural fairness, then with reference to Div.4 of Pt.7 of the Act, this immediately evokes consideration of s.424A and s.425 of the Act. However, no error is revealed in what the Tribunal has done in this regard.
The information that caused the Tribunal difficulty in SZQCI was information provided by the applicant (SZQCJ) and therefore in the current case caught by s.424A(3)(ba). In addition, I note, as the Minister submits, that this information (the content of the application of 8 October 2010) was put to the applicant at the hearing in such a way as to conform with any obligation pursuant to s.424A, by the use of the facility available to it by virtue of s.424AA (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367).
That part of the applicant’s evidence, given as a witness in the case of SZQCI, and which was information that the Tribunal considered would be the reason or a part of the reason in affirming the delegate’s decision in his own case, is information that is not caught by the exemption in s.424A(3)(b) because it was not given to the Tribunal for the purposes of the review in relation to the delegate’s decision applying to him. Specifically, this was information given by the applicant that SZQCI returned to India in March 2010 because of his father’s medical condition.
However, as Mr Potts correctly submitted, this information was discussed with the applicant at the hearing, and specifically in relation to his own application, in such a way as to comply with s.424AA (see T15 – T16 – the hearing of 2 March 2011). I also agree with Mr Potts that the Tribunal’s earlier notice to the applicant that he could seek more time to respond to any matter put to him certainly encompasses this point (see T15).
For the remainder, the information which would be the reason for the Tribunal’s decision was provided by the applicant in writing in connection to the application for a protection visa (and therefore caught by the exemption in s.424A(3)(ba)), or provided by the applicant to the Tribunal for the purposes of the review (s.424A(3)(b)).
The Tribunal’s adverse views of the applicant’s evidence is of course not “information” for the purposes of s.424A(1) (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17] – [18]).
The Tribunal invited the applicant to a hearing pursuant to s.425 of the Act. The invitation complied with the relevant statutory and regulatory requirements (s.425, s.425A, s.441A, s.441C and reg.4.35D of the and included a statement to the effect of s.426A.
Both the Tribunal’s account of the hearing and the transcript reveal that the issue in the review, that is the Tribunal’s rejection of the applicant’s factual account to fear persecutory harm, was discussed at the hearing in such a way that the applicant should have been on notice that his factual account as to why he feared persecutory harm was at issue (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 at [47]) (see [53] – [54] and [56] and T15 – T17, and in particular at T19: “… I need to consider whether I think I am being told the truth about your relationship…”).
While s.422B (as understood in light of the High Court’s explanation in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204 of the operation of such expressions of the exhaustive statements of the natural justice hearing rule as set out in Div.4 of Pt.7) applies in the current circumstances, I cannot see in light of the transcript of the hearing that the applicant did not know the case against him. He was given the opportunity to respond. No breach of procedural fairness at common law is evident in this regard.
Finally, and for the sake of completeness, in the general allegation of a breach of natural justice, I cannot see that any allegation of bias, or the apprehension of bias, on the part of the Tribunal has been clearly made or on what is before the Court can be distinctly proven (Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507; (2001) 178 ALR 421, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] to [44] per Tamberlin, Mansfield and Jacobson JJ, Minister for Immigration & Multicultural & Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).
Conclusion
For the applicant to succeed, the Court would need to discern jurisdictional error. No such error is revealed in the material before the Court. The application therefore should be dismissed on this basis.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 31 August 2011
- AGLC
- SZQCJ v Minister for Immigration [2011] FMCA 678
- Case
- [2011] FMCA 678
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to determine were whether the visa cancellation decision was within the power of the Minister and whether it was unreasonable. Specifically, the court needed to assess whether the Minister had correctly exercised the power under section 501(3A) of the Migration Act, and whether the decision-making process was compliant with the principles of natural justice and procedural fairness. The applicant argued that the decision was unreasonable because it was based on information that was not properly disclosed or considered.
The court found that the Minister had correctly exercised the power under section 501(3A) of the Migration Act. It held that the Minister's decision to cancel the visa was based on the applicant's association with criminal activity, which was a valid ground for the cancellation. The court further determined that the decision-making process was fair and complied with the principles of natural justice and procedural fairness. It was found that the Minister had considered all relevant information and that the applicant had an opportunity to respond to the allegations. The court rejected the applicant's argument that the decision was unreasonable.
Orders
Orders of the court
1.
The application made on 31 March 2011 is dismissed.
2.
The applicant pay the first respondent’s costs set in the amount of $6,240.
3.
The operation of these orders is stayed until 31 August 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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