SZSYS v Minister for Immigration & Border Protection
[2014] FCCA 965
•13 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSYS & ORS v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 965 |
| Catchwords: MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the second and third applicants, being the parents of the first applicant, were prevented from making further protection visa applications where prior protection visa applications had been refused and they remained in the migration zone – whether the Refugee Review Tribunal findings were open to it in respect of the first applicant, being the child of the second and third applicants where his claims were the same as those of the second and third applicants – whether the Refugee Review Tribunal erred in finding that the protection visa applications lodged by the second and third applicants were invalid – whether the Delegate of the Minister for Immigration and Border Protection’s decision was a reviewable decision by the Refugee Review Tribunal – whether the Refugee Review Tribunal had jurisdiction to review the Delegate of the Minister for Immigration and Border Protection’s decision refusing the second and third applicants protection visas – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 31, 36, 47, 48A, 65, 91R, 411, 422B, 424A, 425, 474, Migration Regulations 1994 (Cth) reg.2.01. Federal Circuit Court Rules 2001 (Cth) r.11.2 |
| Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZQBI v Minister for Immigration and Citizenship & Anor [2011] FMCA 650 SZQBI v Minister for Immigration and Citizenship & Anor [2011] FCA 1388 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 |
| First Applicant: | SZSYS |
| Second Applicant: | SZSYT |
| Third Applicant: | SZSYU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1384 of 2013 |
| Judgment of: | Judge Emmett |
| Hearing date: | 13 May 2014 |
| Date of Last Submission: | 13 May 2014 |
| Delivered at: | Sydney |
| Delivered on: | 13 May 2014 |
REPRESENTATION
| The applicants appeared in person with the assistance of an interpreter |
| Solicitors for the Respondents: | Ms Michelle Stone (DLA Piper) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1384 of 2013
| SZSYS |
First Applicant
| SZSYT |
Second Applicant
| SZSYU |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 22 May 2013 and handed down on 23 May 2013 (“the RRT”).
The first applicant is the child of the second and the third applicant, born on 10 March 2012 (“the Applicant”). The second and third applicants are the father and mother of the Applicant, respectively, and their claims are wholly dependent on the Applicant’s claims.
The Applicant was born in Australia on 10 March 2012. The father and mother are citizens of India and fear harm as a result of a family dispute over property, in which the father and mother were embroiled before their departure from India.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.
Background
The father and mother arrived in Australia on 8 April 2010 having departed legally from India on a passport issued in their own names and a Tourist visa issued on 16 October 2009.
On 21 May 2010, the father and mother lodged an application for a protection visa with the (then) Department of Immigration and Citizenship (“the Department”).
On 24 September 2010, the Delegate refused the father and mother’s application for protection visas.
On 24 February 2011, the Refugee Review Tribunal affirmed the decision not to grant the father and mother protection visas.
On 2 March 2011, the Ministerial Intervention Unit advised father that the Minister had decided not to intervene in his case.
On 22 August 2011, this Court dismissed the father’s and mother’s appeal of the Refugee Review Tribunal’s decision in SZQBI v Minister for Immigration and Citizenship & Anor [2011] FMCA 650.
On 8 December 2011, the Federal Court of Australia dismissed the father’s and mother’s appeal against the decision of this Court in SZQBI v Minister for Immigration and Citizenship & Anor [2011] FCA 1388.
On 18 June 2012, the Applicant applied for a Protection (Class XA) visa with the Department. The father and mother lodged applications dependant on that of the Applicant with the Department on 19 June 2012.
On 19 June 2012, the Department wrote to the father and mother informing them that their applications for Protection (Class XA) visas lodged the same day were invalid by reason of the operation of s.48A of the Act, as neither the father nor the mother had left Australia since they were last refused protection visas.
On 19 September 2012, the Delegate refused the Applicant’s application for a Protection (Class XA) visa.
On 16 October 2012, the applicants lodged an application for review of the Delegate’s decision by the RRT.
On 22 May 2013, the RRT affirmed the decision of the Delegate not to grant the Applicant a Protection (Class XA) visa and confirmed that the protection visa applications made by the father and mother lodged on 18 June 2012 were invalid.
On 20 June 2013, the applicants filed an application in this Court seeking judicial review of the RRT’s decision.
Legislative framework
Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Section 36(2A) of the Act defines “significant harm.”
Under s.411(1)(c)) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
Section 48A(1) of the Act prevents a non-citizen who has been refused a protection visa from making a further application in the following terms:
“(1) Subject to section 48B, a non-citizen who, while in the migration zone, has made:
(a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or
(b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);
may not make a further application for a protection visa while in the migration zone.”
(emphasis added)
Relevantly, s.47(4) of the Act prescribes that a decision by the second respondent that a visa application is not valid and cannot be considered is not a “decision to refuse to grant [a] visa”.
The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:
“424A 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.
425 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
The Applicant’s application for a protection visa
In the Applicant’s Protection (Class XA) visa application, the following responses to questions in relation to the harm feared by the Applicant were provided as follows: (errors in original):
“42. Why did you leave that country?
I was born in Australia on 10-03-2012. My parents left India because of Fear of Persecution. Since they Have Arrived in Australia, they did not go back to India. My parents, were victims of family Dispute my Father was attacked by the Enemy the govt. Authority did not take any action against those goons. They had fail to Protect my Parents. If we have go back to India we will Face Severe Prosecution as well as financial Hardship. Right now we are Integrated within Australian free society. My Parents don’t have any connection in India Since they left.
43. What do you fear my happen to you if you go back to that country?
I will Face the Same faith as my Parents Had to go through back in India. My Parents were involved in Property Dispute and it is a very dangerous situation. Congress Party involved an influence in this family matter. They had tried to kill my father. If we have to go back to India we will face serious Prosecution.
44, Who do you think may harm/mistreat you if you go back?
My Parents a Phone Call from India from Private number and threatened to kill us if we ever go back to India.
45.Why do you think this will happen to you if you go back?
They will try to kill us to take the Position of the Property.
46. Do you think the authorities of that country can and will protect you? If not, why not?
The Government Authorities are involved with them. The Police are stooges of Congress Party Member our life will never be secured in India.”
The Delegate’s decision
On 18 September 2012, the applicants attended an interview with the Delegate.
On 19 September 2012, the Delegate refused the Applicant’s application for a Protection (Class XA) visa.
The Delegate explained to the Applicant’s father that the Delegate would not be revisiting the decision to refuse him a protection visa because s.48A of the Act prevented him from making a further protection visa application. The Delegate informed the father that his attempt to include himself and his wife on the Applicant’s protection visa application was invalid and reminded him that he had been advised of this in writing by the Department on 19 June 2012.
The Delegate noted that the claims provided to the Department in the Applicant’s application were essentially the same as those provided to the Department by the father in his protection visa application lodged on 21 May 2010, which was subsequently refused.
The father was asked whether there was any reason why the Applicant could not travel to India, to which he said there was not.
The Delegate noted that the Refugee Review Tribunal had previously found that the father did not have a well-founded fear of persecution because his claims were vague, unsubstantiated and lacking any degree of consistency and circumstantial detail. For this reason, the Delegate did not consider there to be any reason for the Applicant to have a well-founded fear of persecution for a Convention-related reason.
On the basis of the Delegate’s finding that the Applicant’s fear of persecution was not well-founded, the Delegate found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to India, that there was a real risk that the Applicant would suffer significant harm.
The RRT’s review and decision
On 16 October 2012, the applicants lodged an application for review of the Delegate’s decision by the RRT.
The applicants provided no further documents in support of their review application.
On 18 February 2013, the RRT wrote to the applicants informing them that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a hearing on 19 March 2013 to give oral evidence and present arguments.
On 25 February 2013, the RRT wrote to the applicants informing them that the review applications lodged by the Applicant’s father and mother on 16 October 2012 were not valid applications as the RRT does not have power to review a decision that a visa application has not been validly made. The letter informed the applicants that this is a matter to be determined by the RRT. The letter invited the applicants to comments. However, no response was received by or on behalf of any of the applicants.
On 11 March 2013, the father wrote to the RRT requesting that the hearing date postponed or, alternatively, that the applicants attend via video conference.
On 14 March 2013, the RRT wrote to the applicants confirming that the hearing had been postponed until 17 April 2013.
On 17 April 2013, the applicants attended the RRT hearing by way of video link and gave evidence and presented arguments.
On 19 April 2013, the RRT wrote to the applicants identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the applicants to comment upon it (“the s.424A Letter”). The s.424A Letter identified inconsistencies in evidence given by the father to the RRT with evidence he had provided in support of his earlier protection claims before a differently constituted Refugee Review Tribunal on 23 November 2010. The s.424A Letter referred specifically to various findings in the decision record of the differently constituted Refugee Review Tribunal, dated 24 February 2011, relating to the Applicant’s father and mother. The s.424A Letter also referred to the Tourist visa granted to the father and mother on 16 October 2009. The s.424A Letter stated that such information is relevant because the father and mother did not arrive in Australia 8 April 2010 and such information suggested that the father and mother were not forced to flee India in fear of their lives and may cast doubt on the credibility of their claims overall and affect the claims made on behalf of the Applicant.
The applicants were invited to comment or respond on the s.424A Letter by 15 May 2013. However no response was received from or on behalf of any of the applicants.
The RRT explored the applicants’ claims with them in some detail at the hearing and put to them concerns it had about their evidence, noting their responses. The father responded to the RRT’s questions on behalf of all applicants and evidence given by him was fundamental to the RRT’s consideration of the Applicant’s claims where they were based on the claims of the father and the mother. The RRT noted that the father agreed before the Delegate that the Applicant’s claims were the same as those previously considered in relation to the father and mother’s protection visa applications that were refused on 24 September 2010. The RRT made clear to the father that it was only considering the Applicant’s protection visa application and was taking evidence on behalf of the Applicant. The RRT noted that both the father and mother were invited at the hearing to put forward submissions and evidence
In its decision record, the RRT identified in significant detail those aspects of the father’s evidence that caused it to find that the father was not a credible witness and had not been truthful in relation to his experiences in India. The RRT found inconsistencies in the father’s evidence to be significant and unsatisfactorily explained.
Ultimately, the RRT comprehensively rejected the father’s claimed experiences in India, including his claims of past harm.
In the circumstances, the RRT concluded that it was not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason if he was to return to India; and was not satisfied that there were substantial reasons for believing that as a necessary and foreseeable consequence of being removed from Australia to “China,” there is a real risk that he will suffer significant harm. The clear inference, and the one I draw, is that the RRT Member had intended to refer to India rather than China, and the reference to “China” is a typographical error. It is clear from the decision record that the RRT Member was consistently considering the applicants’ claims in terms of India and there is no other reference to China in the decision record and none is conceivably relevant.
The RRT found that the father and mother had made previous protection visa applications while in the migration zone. Those applications were refused on 21 May 2010 and confirmed on review and subsequent judicial review proceedings in this Court, including an appeal to the Federal Court of Australia.
Accordingly, the RRT concluded that the Delegate was correct to find that the protection visa applications lodged by the father and mother on 18 June 2012 were invalid applications, pursuant to s.48A of the Act. The RRT further found that such a decision is not a RRT-reviewable decision, under s.411 of the Act, and that the RRT therefore has no jurisdiction to review the Delegate’s decision further in respect of the father and mother.
The proceeding before this Court
The applicants were unrepresented before this Court, although had the assistance of a Hindi interpreter.
On 25 July 2013, the applicants attended a directions hearing before a Registrar of this Court.
The father confirmed that the applicants wished to continue with their application for judicial review. The applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support. The father was appointed litigation guardian in respect of the Applicant, pursuant to r.11.2 of the Federal Circuit Court Rules 2001 (Cth)
At the commencement of today’s hearing, the father confirmed that the applicants had not filed any amended application, evidence or submissions in support of their application for judicial review and that they have no further documents to present to the Court this morning in support of the application.
The father confirmed that they rely on the grounds contained in the application filed on 20 June 2013 as follows:
“1. The Tribunal had no jurisdiction to make the said decision because its reasonable satisfaction was not arrived in accordance with the provisions of the Migration Act.
2. The Tribunal’s decision was unjust and made without taking into account the full gravity of applicants circumstances and consequences of the claim.
3. The Tribunal has failed to investigate the claim, specially the grounds of persecution in India. Therefore the Tribunal decision dated 23 May 2013 was a judicial error.”
Each of the grounds was interpreted for the assistance of the father and the he was invited to make submissions in support of each of the grounds and in support of their application generally.
Ground 1
Ground 1 appears to assert that the RRT had in some way not made its decision in accordance with the Act. Ground 1 was unsupported by particulars, evidence, or relevant submissions.
When asked if he had anything to say in support of Ground 1, the father responded that the RRT had asked why he had not applied for a protection visa on the same day rather than six months later and that he had wished to submit his mother’s medical certificate but was unable to do so because it had been burnt in a fire. The father declined to make any further submission in respect of those assertions.
I note that the RRT referred to a statement by the father that medical evidence relating to his mother had been burnt in the context of seeking further time to provide evidence. It is not clear to me the relevance of that evidence. However, in any event, the RRT found that the applicant had had ample time to provide any evidence he wished in support of his application. There is nothing on the face of the decision record to suggest that the exercise of the RRT’s discretion to refuse further time was not open to it on the evidence and material before it and for the reasons it gave.
In relation to the father’s assertion to this Court that he was asked by the RRT why he had delayed some six months in seeking protection, the RRT noted that the father and mother were granted Tourist visas on 16 October 2009 but did not arrive in Australia until 8 April 2010. The RRT found that such a delay suggested that they were not forced to flee India for fear of their lives. The RRT considered the father’s explanation but was not persuaded by it. The RRT was not obliged to accept the father’s explanation and its adverse finding was open to it.
The RRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547)
Otherwise, a fair reading of the RRT’s decision record does not suggest that the review was conducted otherwise than in accordance with the Act.
Accordingly Ground 1 is not made out.
Ground 2
Ground 2 asserts that the RRT’s decision was ‘unjust’ and failed to consider the full gravity of the applicants’ circumstances and consequences of their claims. Ground 2 was unsupported by particulars, evidence, or submissions. In support of Ground 2, the father said no more than that he wanted more time.
As stated above, there is nothing on the face of the RRT’s decision record to suggest any ‘unjustness’ either in the making of its decision or the conduct of its review. There is nothing in the RRT’s decision record to suggest that it did not take into account the full gravity of the applicant’s circumstance or the consequences of their claims. The RRT carefully considered all the evidence before it and wrote a detailed s.424A Letter to the applicants identifying with particularity its concerns. As stated above, the applicants did not respond to the s424A Letter and the RRT was not persuaded by explanations given by the father at the hearing. As stated above the RRT’s findings were open to it on the evidence and material before it and for the reasons it gave.
It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
In the circumstances, Ground 2 does not identify any jurisdictional error on the part of the RRT and appears more to be a disagreement with the findings and conclusions of the RRT. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] by North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
Accordingly, Ground 2 is not made out.
Ground 3
Ground 3 asserts that the RRT failed to investigate the applicants’ claims, particularly persecution in India. Ground 3 was unsupported by particulars, evidence, or submissions. In support of Ground 3, the father said no more than that the RRT did not investigate India properly.
In circumstances where the RRT comprehensively rejected the father’s claims of persecutory experiences in India and those findings were open to it, there was no reason for the RRT to consider further a general notion of investigation of “grounds of persecution in India.”
It is well established that there is no general obligation on a RRT to investigate an applicant’s claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).
The duty imposed on the RRT by the Act is a duty to review and not a duty to enquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The duty imposed on the RRT by the Act is a duty to review and not a duty to enquire. There is no obvious failure by the RRT in the case before this Court to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, and none is identified by the applicant (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
It may be that, in certain circumstances the RRT may be obliged to make some further investigation (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [21], [24] and [25]; W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 at [74]-[78]; NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18]-[21]). However, the case before this Court is not such a situation. The father did not give any evidence of any degree of cogency that would have prompted an obligation on the part of the RRT to investigate his claims further.
Accordingly, Ground 3 is not made out.
I accept the written submission of the solicitor for the first respondent, Ms Stone, in relation to the RRT’s jurisdiction. Those submissions are as follows:
“19. The RRT's jurisdiction is drawn from sections 411, 412 and 414 of the Act. Section 414 requires the RRT to review a decision if a valid application is made under section 412 for review of an RRT reviewable decision. An RRT reviewable decision is defined by section 411 and includes decisions to refuse to grant a protection visa and to cancel a protection visa, but does not include a finding that an application is invalid. In addition, section 47(4) provides:
‘47(4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.’
20. Therefore, a finding that an application is not valid is not a 'decision to refuse to grant a protection visa' for the purposes of section 411 and does not invoke the RRT's jurisdiction
21. …[T]he RRT complied with its procedural fairness obligations to the applicant father and applicant mother with respect to this issue.
21.1 As the RRT did not have jurisdiction, the statutory requirements in Part 7 Division 4 of the Act do not apply,[1] and instead the RRT was obliged to provide common law natural justice and procedural fairness in respect of its consideration of whether it had jurisdiction to review the application.
21.2 Common law natural justice and procedural fairness required that the applicant father and applicant mother were given a reasonable opportunity to deal with matters adverse to their interests that the RRT proposed to take into account in exercising its power[2].
21.3 The RRT wrote to the applicant father and applicant mother inviting their comments on this issue, and gave them both the opportunity to make submissions on this issue at the hearing (see [12])
Consideration of the RRT's procedural fairness obligations to the minor applicant
22. The applicant in the present matter was 1 year old at the time of the RRT proceedings… [A]lthough he was unable to present evidence at an RRT hearing due to his age, he was afforded procedural fairness pursuant to section 425 of the Act as his parents were given the opportunity to present evidence on his behalf.[3]
[1] See SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [34] and [40].
[2] See SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [37].
[3] See Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at [102]-[104] (McHugh J) and SZLSM v Minister for Immigration and Citizenship (2009) 176 FCR 539 at [24] (Cowdroy J)
Conclusion
A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the father on behalf of the Applicant; explored those claims with the father at a hearing. The RRT put to the father matters of concern it had about his evidence at the hearing and also in the s.424A Letter. The RRT noted that no response was received from the s.424A Letter. However, the RRT considered in detail the father’s explanations given at the hearing to concerns raised by the RRT.
The RRT made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 13 May 2014
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