Yimer v Minister for Immigration - [2007] FMCA 1057

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YIMER v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1057

MIGRATION – Application for judicial review – alleged breach of s.360 by first respondent not made out – effect of decision in SZBEL – application dismissed.

Migration Act 1958 (Cth), ss.354, 355, 355A, 359A, 360, 422

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107
SZHXB v Minister for Immigration & Anor [2006] FMCA 1118
Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 49
Abujoudeh v Minister for Immigration and Multicultural Affairs [2001] FCA 1351
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
SZHFH v Minister for Immigration & Anor [2007] FMCA 124
Chey v Minister for Immigration and Citizenship [2007] FCA 871
SZILQ v Minister for Immigration & Citizenship [2007] FCA 942

Applicant:

KONJIT YIMER

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 1635 of 2006

Judgment of:

Burchardt FM

Hearing date:

15 June 2007 & 24 August 2007

Date of last submission:

24 August 2007

Delivered at:

Melbourne

Delivered on:

12 September 2007

REPRESENTATION

Counsel for the Applicant:

Mr J.A. Gibson

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondents:

Mr W.S. Mosley

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed 21 December 2006 be dismissed.
The Applicant pay the First Respondent’s costs, fixed at $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1635 of 2006

KONJIT YIMER

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

On 21 December 2006 the Applicant filed an application seeking judicial review of a decision of the Migration Review Tribunal

("the Tribunal") given on 7 December 2006. That application was accompanied by an affidavit which relevantly exhibited a copy of the decision of the Tribunal.
By an amended application filed on 29 March 2007, the Applicant expressed revised grounds of application which were particularised as:
“The Tribunal failed to comply with section 360 of the Act by failing to invite the applicant to a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
At paragraph 3 of the Applicant's contentions of fact and law filed on 29 March 2007, the Applicant asserted:
“The claims of the Applicant made in the course of the application and submissions made on her behalf are set out by the MRT in its decisions (references omitted). The factual nub of the applicant's complaint of a breach of s.360 appears at CB21 para [25]-[27] and concerns the subsequent withdrawal of an invitation to a hearing following the completion of a request for hearing form (references omitted) and cancellation of the hearing.”
The contentions of law of the First Respondent filed on 9 March 2007 set out at paragraphs 1 to 13 relevant facts and chronology which in my view are not controversial and which I paraphrase in succeeding paragraphs.
On 4 February 2002 two brothers of the Applicant (“the visa applicants”) each applied for a child (migrant) (class AH) visa. The visa applicants, who are Ethiopian citizens, were sponsored by Ms Konjit Yimer, the Applicant in this proceeding, who sponsored the visa applicants on the basis that she was an Australian relative. The Applicant had herself arrived in Australia on 31 January 1996, and became an Australian citizen on 10 June 1998. The applications were made on the basis that the visa applicants were the orphan relatives of the Applicant. Accordingly, the relevant subclass of visa within class AH was a subclass 117 (orphan relative) visa.
On 12 August 2004 a delegate of the First Respondent refused to grant either of the brothers a visa. The decisions of the delegate are set out in the further supplementary court book (“FSCB”) 1-5, and FSCB 6-10.
On 22 October 2004 the Applicant applied to the Tribunal for review of the delegate's decisions. A hearing was conducted by the Tribunal on 22 November 2005 at which the visa applicants and the Applicant gave evidence.
On 11 January 2006 the Tribunal affirmed each of the delegate's decisions not to grant the visa applicants the visa. The decisions are at FSCB 11-30 and 31-48 respectively.
The Applicant on behalf of the visa applicants sought judicial review of each of the Tribunal's decisions and on 8 May 2006 the Federal Magistrates Court remitted, by consent, each of the decisions of the Tribunal. It should be noted that that remittal followed the decision of the Full Court of the Federal Court in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2, which led to a considerable number of such remittals.
On 4 July 2006, Victoria Legal Aid on behalf of the Applicant provided to the Tribunal a submission (supplementary court book (“SCB”)

55-70) and other material.
On 14 August 2006 the Tribunal invited the Applicant to appear before the Tribunal at a hearing on 5 October 2006. On 17 August 2006 the Applicant returned the request for hearing form, advising that she wished to appear at the hearing.
On 21 August 2006, in fact following legal advice, the Tribunal cancelled the hearing.
On 4 September 2006 the Applicant was invited by the Tribunal to comment on certain information pursuant to s.359A of the Migration Act 1958 (Cth) ("the Act"), (SCB 156-157 and 160-161).
The s.359A letter invited comment as follows:
“You are invited to comment, pursuant to s.359A of the Act, on information contained in the review applicant's 1993 migration application and the radiology report prepared for the Department's primary decision-maker, which indicate that at the time of application for the subclass 117 visa, the visa applicant was aged over 18 years. You are also invited to comment, pursuant to s.59A of the Act, on information that the dates shown in the birth certificates for the visa applicant indicate an age difference of one year and five months, whereas the review applicant's 1993 application indicates that there was an age difference of three years.
This information is relevant to the review because it casts doubt on the visa applicants’ capacity to meet an essential criterion for the grant of the visa (being aged under 18 at the time of application) and casts doubt on the visa applicants’ credibility more generally.”
On 27 September 2006 the Applicant responded by written submissions from her migration agent, Victoria Legal Aid, including radiological reports by Dr Cain of x-ray images obtained from the Bethzatha Hospital in Ethiopia on 13 October 2004 (SCB 162-171).
On 9 October 2006 the Applicant provided further radiological reports by a Dr Fink of the same x-ray images obtained from the Bethzatha Hospital (SCB 172-176).
On 7 December 2006 the Tribunal again affirmed each of the delegate's decisions not to grant the visa applicants the visa. The decisions were handed down on 11 December 2006.
On 21 December 2006 the Applicant made this application to the Court for review. The amended application was, as I have earlier said, filed on 29 March 2007.
Counsel for the Applicant raised two points in his oral submissions. The first issue was whether or not there had been a breach of s.360 of the Act in the failure of the Tribunal to have a second and further hearing. The second issue raised was the effect of the High Court's decision in the case of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (“SZBEL”).

Breach of Section 360

It is common cause that the Tribunal initially invited the Applicant to

a hearing but, following legal advice, withdrew that application, albeit that it subsequently sent a s.359A letter as earlier described. That series of events took place, it is clear, because the second Tribunal, following remittal, took the view on advice that the invitation previously extended to the Applicant to attend a hearing by the Tribunal as previously constituted was sufficient.
That view itself flowed from the decision of the Full Court of the Federal Court in SZEPZ v Minister for Immigration and Multicultural Affairs (2006) FCAFC 107 (“SZEPZ”) in which the Full Court found at [38]-[39]:
“38. Upon the making of the First Decision, the review of the delegate's decision undertaken pursuant to s.414(1) was at an end. Assuming the effect of the Consent Orders was to quash or set aside the first decision, it was incumbent upon the Tribunal to embark upon a review of the delegate's decision according to law. It was a review by the Tribunal that was required, not a review by a particular member of the Tribunal. It was the decision of the Tribunal that was set aside, not the decision of a particular member of the Tribunal (see Wang at 529).
39. In any event, when ss.421, 422 and 422A refer to "a particular review", they identify the review initiated under s.414(1) and culminating in a decision in accordance with s.430, being the review that a particular person, namely the applicant for review, has initiated in respect of an RRT‑Reviewable decision. The expression does not depend upon the identity of the particular member constituting the Tribunal. Rather, it refers to the function of the Tribunal to review a decision. Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s.414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been made was set aside.”
Counsel for the Applicant readily conceded that his submissions were in a sense made as a matter of formality to preserve his client's position should the matter proceed further by way of appeal. Counsel for

the Applicant went close to admitting that SZEPZ was determinative and against his submission on this point (see P4 lines 15-21, and

P9 lines 35-41).
Counsel sought to distinguish SZEPZ. He noted that the Full Court in SZEPZ had observed that it was unnecessary to determine whether the Tribunal was or was not reconstituted under s.422 of the Act. The relevant section for these purposes is of course s.355 of the Act as this case involves an appeal from the Migration Review Tribunal, not the Refugee Review Tribunal.
He sought to draw a distinction between s.354 of the Act, which deals with the constitution of the Tribunal in what might be said to be ordinary circumstances, s.355 of the Act, which concerns reconstitution because of unavailability of a member, and s.355A of the Act, which involves possible changes in personnel of the Tribunal to ensure a more efficient conduct of the review.
I am afraid I am unable to accept this submission. It is clear in my view that the constitution of the Tribunal took place pursuant to s.354 of the Act and I find the reasoning of the Full Court in SZEPZ to be fully on point, as was all but conceded by counsel for the Applicant. I do not think the decision of Buchanan J in SZILQ v Minister for Immigration & Citizenship [2007] FCA 942 (“SZILQ”), which I accept turned on its own facts, leads to any different conclusion.
Support for this approach seems to emerge quite clearly from the decision of Nicholls FM in SZHXB v Minister for Immigration & Anor [2006] FMCA 1118 at [25]-[26], and in Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 49, a decision of Wilcox J followed by Ryan J in Abujoudeh v Minister for Immigration and Multicultural Affairs [2001] FCA 1351 at [23]-[26].
Putting the matter shortly, what happened here is that the first Tribunal decision was in law a nullity but the steps leading up to it were not invalid. Those steps included the invitation to the Applicant to attend a hearing.
In the light of the decision of the Full Court of the Federal Court in SZEPZ, I find that the Tribunal's failure to extend a second invitation to the Applicant to attend a hearing when the matter was remitted for further hearing by the Tribunal did not infract the terms of s.360 of the Act.

SZBEL

This case and its application formed, as counsel for the Applicant made clear, the primary thrust of the submissions advanced.
Boiled down, the Applicant's case in respect of SZBEL is that there was a failure to comply with s.360 of the Act because the Tribunal took into consideration a number of matters which, on the authority of SZBEL, should have required that the review Applicant have an opportunity to deal with them.
The matters which were said to have given rise to this requirement are set out in paragraph [29] of the Applicant's contentions of fact and law and marked by four asterisks in each instance.
It is readily apparent that in substance, this is a natural justice point.
SZBEL was of course a case that turned upon its own facts. The delegate of the Minister refused to grant the appellant a protection visa because the delegate was not satisfied of the genuineness of the appellant's conversion to Christianity. At a subsequent review by the Refugee Review Tribunal, the appellant was invited to give evidence relating to the issues arising in relation to the decision under review. The appellant gave evidence addressed to the delegate's concerns regarding the genuineness of his conversion.
The Tribunal affirmed the delegate's decision not to grant a protection visa on the basis that the appellant's claims were not credible and identified three key aspects which it said lacked credibility. Critically, however, these were different issues to those that had been raised by the delegate and they had not been put to the appellant as being the issues arising in relation to the decision under review.
In SZBEL the High Court pointed out at [35] that:
“The tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the tribunal. But if the tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what the other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the tribunal (as they may be), it would ordinarily follow that, on review by the tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.”
In that case, because the Tribunal did not identify those aspects of the appellant's account as important which were different to the matters that had been held to be dispositive by the delegate, the Tribunal was held by the High Court (at [44]) not to have accorded the appellant procedural fairness:
“The tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review.”
The High Court did continue, however, at [47]-[48] to make some qualifications to the way in which the Tribunal would properly approach its task, although it did also at [49] refer to the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (set out in SZBEL at [32]) to the effect that the requirement to allow a party to be heard:
“.. would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. (Alphaone at 590-1).”
The High Court's decision in SZBEL has been the subject of consideration by Smith FM in SZHFH v Minister for Immigration & Anor [2007] FMCA 124 (“SZHFH”). At paragraphs [18]-[21] of that decision (reproduced at paragraph [29] of the First Respondent's contentions of fact and law), his Honour illustrated, in my respectful view correctly, that SZBEL ought not be considered to retreat from previous statements in the High Court which emphasised that it is not a duty on the Tribunal to put to an Applicant perceived flaws in an Applicant's case in the manner which would be required in adversarial litigation.
Counsel for the Applicant submitted (P21, 5-10) that the delegate's reasons essentially all went to one conclusion, not a conclusion as to the age of the visa applicants but to a conclusion that the two applicants were not related to the review Applicant. He submitted that that was an entirely different issue.
When pressed, counsel for the Applicant emphasised that it was the matters set out in paragraph [29](ii) and (iii) of his contentions of fact and law that were the critical points said to give rise to difficulty in this case, although he did also rely on (vi) and (vii).
Counsel for the First Respondent submitted that the central and determinative issue in relation to the review in this case that the Applicant would have understood was whether the visa applicants met the relevant criterion for a subclass 117 visa; in particular, that the visa applicants were orphan relatives and, in particular, that they had not turned eighteen at the time of the application in 2002. He took me to the decision of the delegate, and submitted that in truth the delegate did not primarily concern himself with the question as to whether or not the visa applicants were indeed relatives of the visa sponsor, but rather whether they were over eighteen at the time of application. If one looks at the delegate's decision (FSCB 3-5), it is clear in my view that that submission on behalf of the First Respondent is correct. The vast bulk of the reasoning disclosed under the heading “Assessment” in the delegate's decision is to do with the age of the visa applicants at the time of application. The remarks about whether or not the visa applicants were indeed the visa sponsor's brothers are very much a throwaway addendum.
Putting the matter shortly, counsel for the First Respondent submitted that in the light of the findings of the delegate, the question of the age of the visa applicants at the time of application had always been in issue before the Tribunal and therefore a SZBEL point did not arise.
Counsel for the First Respondent addressed the particular issues raised by paragraph 29 of the Applicant's contentions of fact and law and submitted that in each instance these were matters that had properly been either before the delegate or otherwise brought to the attention of the visa applicants.
Against this background, I will now deal with each of the matters raised by the Applicant seriatim.

The Tribunal did not accept that the visa sponsor's English did not improve when she lived with the Canadian family because the parents were never at home and the child was not verbal (paragraph 29(a)(ii) – Applicant’s Contentions of Fact and Law)

The decision of the delegate (FSCB 4) dealt in terms with the education and command of English of the Applicant. The delegate observed that the sponsor had said in a letter dated 22 October 2003 that she did not speak any English.

The delegate relevantly found:
“The sponsor stated in her previous migration application that she had attended eight years of primary education, four years of secondary education and one year of tertiary education and had some command of spoken and written English, which contradicts her statement of 22/10/03.”
The delegate went on to say at FSCB 5:
“I have given little weight to the sponsor's claims regarding the error in the Applicant's age due to her lack of knowledge in converting the Ethiopian calendar and in English as I have given greater credence to the immigration officer's interview of 10/09/95. I find that the claims regarding the Applicant's age and the sponsor's statement lack credibility given that the information was clarified and confirmed with the sponsor in an interview on 10/9/05.”
The first Tribunal decision given on 11 January 2006 referred at paragraph 12 to the Applicant's previous migration application which revealed her education up to one year of tertiary education and referred to her command of spoken and written English. At CB 17 the Tribunal recorded:
“Asked about her level of English at the time, she stated that she had attended an Arab-speaking school in Ethiopia. Although English was taught separately as a language, English was part of the curriculum. They had used English language textbooks in year 8 and in physics and chemistry but explanations were in both English and Amharic. She had been living with a Canadian family for over a year at the time the application was completed in September 1993. However, the child she was looking after, Jessica, was not yet talking and the parents were never home (the wife worked at Canadian Embassy and the husband was busy working in his clothing business). Accordingly, whilst she was residing with an English-speaking family, her English did not improve much.”
It is fair to say that the Tribunal did not make any finding as to these assertions by the Applicant as to her command of English because it was comfortably satisfied on the material before it that the visa applicants were not over the age of 18 at the time of application.
It is also fair to say that the s.359A letter sent to the Applicant did not request in terms at least that she comment on the issue of her command of English.
The Tribunal's decision given on 6 December 2006, from which this application arises, dealt with the Applicant’s command of English at paragraph [38] (CB 23) where the Tribunal observed:
“The Tribunal does not accept the review Applicant's claim. She testified at the hearing that she completed both primary and secondary education, and that the curriculum included English. As well, some subjects in secondary school were taught in both English and Amharic. She also lived with a Canadian family for about a year, prior to lodging the 1993 application. The Tribunal does not accept as plausible the review Applicant's claim that her English did not improve in the latter context because the parents were never at home and their child was not yet verbal. The Tribunal does not accept that, with that background, the review Applicant's English proficiency would have been so limited that she would have been unable to complete, or at least check, the application form herself. Moreover, the Tribunal does not accept that as an educated woman, she (or indeed the man whom she claims assisted her) would have been unaware of the existence of differences between the Gregorian and Ethiopian calendars, and that, when completing a document for the government of a country in which the form prevails, caution would have been required in the provision of dates.”
It is in my view clear that the issue of the Applicant's command of English was a live issue from the start. That is plain not only from the passages in the materials to which I have referred, but in the submissions made by the Applicant herself, to which counsel for the First Respondent referred, in her written submissions in response to the s.359A letter.
The decision in SZBEL has been the subject of more recent consideration by Kenny J in Chey v Minister for Immigration and Citizenship [2007] FCA 871 (“Chey”). In that case her Honour referred at [25] to the decision of the High Court in SZBEL. She pointed out at [25] that in SZBEL:
“The review applicant was not on notice that two aspects of his account were in issue because the primary decision-maker had not based his decision on them, and the Tribunal did not identify them as important issues.”
It was that deficiency that gave rise to the High Court's decision in SZBEL. Similar considerations form the basis for the decision of Buchanan J in SZILQ.
In this case, on its own particular facts, I think that the issue of the Applicant's English was sufficiently clearly in issue. The Applicant herself addressed the issue of her command of English in her response to the s.359A letter.
The delegate likewise had identified the issue of the Applicant's command of English in the delegate's original decision.
Furthermore, the critical issue in this case was not the Applicant's command of English per se but rather the age of the children at the time of application. There was a welter of information about this beyond merely the Applicant's command of English. The Applicant's command of English was also clearly articulated before the first Tribunal hearing.
The finding that the second Tribunal hearing made about the evidence in relation to the Applicant's command of English amounts to only a smaller part of one paragraph of its reasoning and it was only a subpart of the evidence taken into consideration in relation to the Applicant's 1993 application. It was not on any view a critical matter, as was the case in SZBEL.
In circumstances such as these the Court is required, when considering the nature of the invitation to be extended under s.360 of the Act, in my respectful view, to consider the totality of the proceedings before the delegate, the first Tribunal and the second Tribunal together with the reasoning of the Tribunal, the decision of which is subject to this review. In my opinion the failure of the Tribunal to grant the Applicant a further hearing does not, in relation to the issue of the Applicant's command of English, give rise to jurisdictional error of the sort identified in SZBEL, by Kenny J in Chey and Buchanan J in SZILQ.
This finding necessarily also deals with the matter set out at paragraph [29](a)(iii) of the Applicant's contentions of fact and law.

The Issues Relating to the Gregorian and Ethiopian Calendars (paragraph [29](a)(iv)-(vii) – Applicant’s Contentions of Fact and Law)

In my view these matters were always in issue and were clearly brought to the attention of the Applicant and no SZBEL error is established.

The Photographic Evidence (paragraph [29](a)(xii) – Applicant’s Contentions of Fact and Law)

These photographs were submitted to the Tribunal at hearing. It was not necessary for the Tribunal, either then or when the matter was remitted, to indicate the conclusions that it proposed to draw from them. (see Smith FM in SZHFH at [20]-[21]).

Conclusion

In my view, on the authority of SZEPZ, the Tribunal was not required to invite the Applicant to a further hearing.
Further, taking the materials as a whole, it is apparent that the critical issue in the case was always the question as to whether or not the visa applicants were or were not under the age of 18 at the time of their visa application.
The matters articulated by counsel for the Applicant were in my view sufficiently raised by the proceedings before the delegate and/or by the proceedings before the Tribunal (which, on the authority of SZEPZ, were only one proceeding) for the Applicant to have fairly understood what it was that was in issue in relation to those matters of which complaint is now made.
That this is so is indeed apparent from what the Tribunal itself said.
Further, as Kenny J observed in Chey (at [24]), and Smith FM in SZHFH (at [20]), the Tribunal is not required to reveal its reasoning in the course of the proceeding.
The application must be dismissed and the Applicant must pay the First Respondent's costs. There will be orders to that effect.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Deputy Associate: Ann Pretty

Date: 12 September 2007