FEDERAL COURT OF AUSTRALIA

SZMZE v Minister for Immigration and Citizenship [2009] FCA 1267

Migration Act 1958 (Cth) ss 424A, 425

SZAXY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 76 considered

SZLLY v Minister for Immigration and Citizenship (2009) 107 ALD 352 followed

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 applied

SZMZE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 714 of 2009

LOGAN J

3 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The Appellant is to pay the First Respondent’s costs of and incidental to the appeal to be taxed, if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The Appellant is a citizen of the Republic of India.  He came to Australia on 28 March 2007.  On 10 May that year he lodged an application for that class of visa under the Migration Act 1958 (Cth) (Migration Act) which is known as a protection visa.

2                     Eligibility for that visa is conditioned relevantly upon the engendering of satisfaction on the part of the Minister for Immigration and Citizenship (the Minister) administering that Act or delegates of the Minister that the visa applicant is a person to whom Australia owes protection obligations under the Refugee Convention.  On 5 June 2007, a delegate of the Minister refused to grant the Appellant a protection visa.  Later that month, on 21 June 2007 the Appellant sought the review of the Minister’s delegate’s decision by the Refugee Review Tribunal (the Tribunal).  Under the Migration Act, that Tribunal, in reviewing the decision of the Minister or a ministerial delegate, is entitled to exercise powers and discretions that are vested in the Minister; in other words, on a review application it is within the Tribunal’s power to decide that a person is entitled to a protection visa.

3                     As it happened, in the particular circumstances of the Appellant’s case, the Tribunal did not come finally to make a decision in respect of his review application until 28 October 2008.  In the interval between the lodgement of the review application and when the Tribunal finally made its decision a series of adjournments and extensions of time occurred.  This procedural history is set out in the Tribunal’s reasons at paras 20, 21, 22 through to and including 34.  It is also referred to in a more compressed way in the reasons for judgment of the learned Federal Magistrate.  It is particular aspects of this procedural history which have given rise to the appeal.

4                     The grounds of appeal are these:  

1.                  the Tribunal did not allow sufficient time to obtain documents from Jammu knowing that Jammu was locked down and documents were not able to obtain [sic]; and

2.                  the Tribunal rejected the first information report regarding kidnapping of my brother without verifying the guiness [genuineness] of the report, which could easily have been checked. 

5                     Of these grounds the first was the subject of particular development in the Appellant’s oral submissions, although it is necessary to make observations also in respect of the second ground.  The learned Federal Magistrate observed at para 18 that he was unable to see any grounds for the then applicant, now Appellant, successfully to allege that the Tribunal fell into jurisdictional error in the manner in which it dealt with his application.

6                     By August 2008 the course of proceedings before the Tribunal had reached the stage where the Appellant had been offered a hearing date, or perhaps one should say another hearing date, had not attended on this date and the Tribunal had then sent to him a detailed letter highlighting, for the purposes of s 424A of the Migration Act, particular information on the basis of which adverse conclusions might be drawn and seeking a response from him.

7                     On 7 August 2008, a case officer within the Tribunal’s registry had telephoned the Appellant to advise him that the date by which he ought to furnish his response to the s 424A letter was 15 October 2008.  On 16 October 2008, at about 4.55 pm, the Appellant telephoned the Tribunal’s registry.  A file note prepared by the case officer who took his call records the Appellant’s saying that he would be responding tomorrow, ie, that is 17 October 2008 to the s 424A letter.  The file note further records that the case officer told him that the deadline was 15 October 2008 and that if he had anything to submit he should do so as soon as possible. 

8                     On 17 October 2008, the Tribunal received a letter from the Appellant which was in these terms:

Please refer to your letter dated 3 July 2008 regarding the subject cited above.  In this regard I have to mention that I will provide all the answers to your question on 20-10-2008.

One more thing I like to mention, that I had a witness in this regard.  His name is [name given], because this guy can prove that I am Wright [sic] what I had said.  So, please wait till Monday.

9                     The reference to the Tribunal’s letter of 3 July 2008 is a reference to the Tribunal’s letter sent for the purposes of s 424A, to which I have already referred.  As noted, the Tribunal did not in fact give its decision until 28 October 2008.  Nothing further came from the Appellant either on 20 October 2008 or, for that matter, at any stage prior to 28 October 2008, nor was there any further request for further time made of the Tribunal prior to 28 October 2008.

10                  The Minister’s submission in respect of the letter of 17 October 2008 was that at best it was a request for an extension of time for three days.  I agree.  Further, it is apparent that the Tribunal did indeed hold its decision in abeyance until after 20 October 2008.

11                  In SZAXY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 76 at [11], Wilcox J observed:

Views may sometimes differ as to whether a particular procedural step ought to be taken in the conduct of a review.  The fact that the Court might have formed a different opinion to the Tribunal member in relation to a procedural decision does not in itself demonstrate lack of good faith by the Tribunal.

His Honour’s observation was made in the context of a challenge on the administrative law error ground of bad faith, but it might equally well have been made to like effect in respect of any challenge on the basis of unreasonableness to a procedural decision made by the Tribunal.  It is not impossible to conceive of a case whereby an unreasonable decision in respect of a matter of procedure on the part of the Tribunal might, for example, violate the obligation found in s 425(1), to invite a visa applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. 

12                  Equally, it is not impossible to see how an unreasonable allowance of time to respond to a request under s 424A or the provision of information in response to an invitation given by the Tribunal might violate the requirements of that section.  “Unreasonableness” here though would have to be of the order that no reasonable Tribunal in the circumstances could have made the particular procedural decision which it did.  The decision would have to be to adopt an adjective appropriately put forward on behalf of the Minister: “capricious”.  That is not this case in respect of the circumstances attending the making of the Tribunal’s decision, as the learned Federal Magistrate plainly appreciated. 

13                  It is evident that the Tribunal considered on the merits and made value judgments reasonably open in respect of each procedural event which occurred between the filing of the review application and the making of the final decision.  One of the earlier procedural events concerned whether the Appellant was then not just physically but also mentally able to attend and give evidence and present his case at a hearing.  The Tribunal took the initiative of inviting the Appellant to attend upon a specialist psychiatrist for the purpose of a report being furnished concerning his then state of health and wellbeing.  This the Tribunal was entitled to do.  The Tribunal then acted on the strength of the report given in making an earlier procedural value judgment.  Again, the Tribunal was entitled to act upon such information.  As the learned Federal Magistrate remarked at para 11, Dr Walker (the psychiatrist concerned) provided that opinion and as a result the Tribunal put off a hearing for a very considerable period of time:

As I have already noted, after April 2008 the applicant no longer made any complaints of a psychological nature.

14                  The Tribunal certainly did not prevent the applicant from finding his own doctor.  It merely noted: “He was indigent and would have difficulty in so doing.”  The learned Federal Magistrate observed prosaically but not inaccurately that:

This tribunal bent over backwards to assist the applicant and give him extensions of time for a period of over a year from June 2007 when he lodged his application to July 2008 when the last hearing was scheduled.

I respectfully agree with those observations.

15                  In SZLLY v Minister for Immigration and Citizenship (2009) 107 ALD 352 at [19], Perram J observed that:

The Full Court’s decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 establishes three propositions which are pertinent.  First, the invitation contemplated by section 425 must not be a hollow shell or an empty gesture: at [33].  Second, another way of putting the first requirement may be to say that the tribunal must provide a ‘real and meaningful’ invitation: at [37].  Third, what is real and meaningful is to be objectively determined and the obligation exists whether or not the tribunal is aware of the circumstances which would defeat that obligation: at [37].

16                  His Honour further noted at [20] that:

There [was] debate within this court as to whether SCAR was correctly decided.

17                  His Honour further observed at [21] that:

It is never open to a single judge of this court to decline to follow a Full Court decision such as SCAR.

18                  Like Perram J in SZLLY, I am bound by the Full Court’s decision in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553.  Even if it were open to me to embark upon a debate as to the correctness of that decision and. constituting the appellate division as a single judge I do not consider that it is open, the circumstances of this case do not give rise to a violation of the hearing invitation requirement in s 425.  A hearing date was reasonably offered and no advantage was taken of it.  Even objectively, there is no basis for apprehending a breach of s 425 based on circumstances prevailing at the time but unknown to the Tribunal.  There was no obligation on the part of the Tribunal, that hearing having long since past, even to consider whether or not to defer the making of a decision pending the taking of oral evidence from the witness named in the Appellant’s letter of 17 October.  The position might have been different, for example, had there been an explanation in the letter of 17 October as to why that witness had not hitherto been available and details given of exactly the evidence the witness proposed was to give. 

19                  What remains then is a complaint concerning the rejection by the Tribunal of an information report regarding the kidnapping of the Appellant’s brother.  It is not apparent that this ground was one pressed in the proceeding before the Federal Magistrate, although that might just perhaps be a matter of inadequacy of command of language on the part of an Appellant who has some knowledge but an incomplete knowledge of English.  It is important though to remember that the jurisdiction exercised by this Court is appellate, not original, in respect of matters such as this.

20                  The short answer, in any event, to the second ground of appeal is that, having regard to the Tribunal’s reasons, it was open to the Tribunal to reach the views that it did.  The Tribunal is not obliged on the strength of a review application alone to be satisfied in terms of a protection obligation existing.  It is for an applicant to put such material as he or she is able to engender that state of satisfaction.  That ability includes an ability on request to attend at a hearing.  It also extends to making a response to s 424A request for information.  The appellant did not take advantage of either of these opportunities.  The views that the Tribunal reached were reasonably open to it on the basis of the material that it had. 

21                  It follows from what I have said that, however one approaches the grounds of appeal, they have no merit.  The appeal must therefore be dismissed.

Associate:

Dated:         5 November 2009