SZMDI v Minister for Immigration & Anor [2009] FMCA 103 (17 February 2009)

Last Updated: 24 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMDI v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 103

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – applicant not believed – applicant submitting a letter purportedly from an Indian Member of Parliament – Tribunal seeking clarification of the authenticity of the letter from DFAT – Member of Parliament identifying the letter as bogus – whether the Tribunal overlooked an integer of the applicant’s claims considered – operation of s.424 of the Migration Act 1958 (Cth) discussed.

Acts Interpretation Act 1901 (Cth), s.22 Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424, 424A, 424B, 424C, 425, 441A

Htun v Minister for Immigration [2001] FCA 1802; (2001) 194 ALR 244 M v Minister for Immigration [2006] FCA 1247; (2006) 155 FCR 333 Minister for Immigration v Sun [2005] FCAFC 201; (2005) 146 FCR 498 Minister for Immigration v SZFLX [2008] FCAFC 125 Re Minister for Immigration; Ex parte S20/2002 [2003] HCA 30; (2003) 198 ALR 59 SZBQS v Minister for Immigration [2008] FMCA 812 SZEXZ v Minister for Immigration [2006] FCA 449 SZIAR v Minister for Immigration (2008) 220 FLR 232 SZKCQ v Minister for Immigration (2008) 170 FCR 236 SZKTI v Minister for Immigration (2008) 168 FCR 256 SZLTR v Minister for Immigration [2008] FCA 1889 SZLWQ v Minister for Immigration [2008] FCA 1406

Applicant:

SZMDI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 901 of 2008

Judgment of:

Driver FM

Hearing date:

17 February 2009

Delivered at:

Sydney

Delivered on:

17 February 2009

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application is dismissed.
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 901 of 2008

SZMDI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The decision was handed down on 20 March 2008.
2. The applicant is from India and had made claims of political persecution. The background relating to the applicant's claims and the Tribunal decision on them is conveniently summarised in the Minister's amended written submissions filed on 12 February 2009. I incorporate as background in this judgment, with minor amendments, paragraphs 2 through to 6 of those written submissions:
   • The applicant, a citizen of India, arrived in Australia on 18 June 2007 and applied to the department for a protection visa on 30 July 2007. That application was refused by a delegate on 29 August 2007 and on 19 September 2007, the applicant applied to the Tribunal to review that decision (court book (“CB” 127.2-127.3).
   • The applicant’s claims were set out by the Tribunal at CB129-138. Essentially, for present purposes, his claims (though detailed and extensively set out by the Tribunal) may be summarised as having been that he was a member and supporter of the MDMK party (having been a follower of the MDMK leader, Vaiko), that he had actively participated in that party’s campaign in the 2006 Tamil Nadu election and that he (and certain relatives) had been persecuted by the opposing DMK (who won that election) for his support of activities in the MDMK (CB129-131).
   • On 11 October 2007, he was invited to a hearing by the Tribunal, which he attended (and was assisted by a Tamil interpreter) (CB 131.9). Some detail of the hearing was set out by the Tribunal at CB132-137, although there is no transcript. At the commencement of the hearing, the applicant submitted to the Tribunal certain documents, including a computer printout showing the members of the MDMK party and a letter from Mr P.R. Siva, Member of the Legislative Assembly in Pondicherry in India.
   • The Tribunal, on 18 December 2007, following the hearing, sought authentication from DFAT of that letter from Mr Siva, see CB113. A response was made on 1 February 2008 (CB116-117), which included a letter from Mr Siva, saying that the letterhead (that was used in the letter the applicant claimed to be from Mr Siva and was submitted to the Tribunal) was not one that he had used to support anybody, that the signature affixed to that letter was strange to him and that the letter was “a bogus one...”. (CB117). That was the subject of an invitation to the applicant under s.424A of the Migration Act 1958 (“the Migration Act”) dated 4 February 2008 (CB118-120), which was replied to by fax on 22 February 2008 (CB121). The invitation and the response were noted by the Tribunal in its reasons at CB137-138.
   • The Tribunal “formed the view that the applicant’s material claims lacked credibility and cannot be accepted” (CB 140.2), based upon the matters set out in the dot points from CB140-143. Those included (in the second last dot point on CB142) that DFAT had contacted Mr Siva and were informed that the letter submitted by the applicant (purportedly from Mr Siva) was a forgery. The Tribunal there did not accept the applicant’s explanation, rejected the letter on the basis that it was a forgery and found that it did not add anything to his claims (CB 142.9). The Tribunal also dealt with the abovementioned membership list submitted by the applicant – see the dot point commencing at the bottom of CB142 and extending over to CB143. The Tribunal ultimately rejected the applicant’s key claims at CB143, finding him to face no real chance of persecution upon return to India.
3. These proceedings began with a show cause application filed on 14 April 2008. That application was supported by a short affidavit filed with it on the same day. Before me today the applicant expressly disavowed any reliance upon that application and the supporting affidavit. On 17 June 2008 the applicant purportedly filed an amended application. That application asserted a breach of s.424 of the Migration Act. Today the applicant was unfamiliar with that document although his signature appears on it. He expressly disavowed any reliance upon that amended application. I pointed out to the applicant that he asserted a breach of s.424 of the Migration Act in that amended application and Mr Johnson had dealt with that issue in his written submissions filed on 12 February 2009. I had made a show cause order by consent on 3 July 2008 based upon that amended application. The applicant told me firmly that he did not wish to argue any issue concerning s.424. These are adversarial proceedings and that is the applicant's choice. The applicant was adamant that he only wished to rely on a further amended application filed on 13 January 2009. The grounds of that application and the particulars are:
   • Second respondent failed to consider the core integers of the Applicant’s claim for protection in Australia and took into account irrelevant considerations into account.
   • Particulars
   • The Applicant tendered evidence to the Second respondent that he belonged to a political party called MDMK and the Presiding member of the second respondent did not take into account that evidence.
   • Although the Applicant in this case provided well-detailed and long statement with appropriate evidence the Presiding member of the second respondent did not take into account key evidence in this case. That is a list of members of the MDMK party which is found in page 109 of the court Book.
   • Had the Tribunal member taken this piece of evidence into account the Tribunal member would not have concluded that the applicant is an untruthful witness.
4. I have before me as evidence the court book filed on 14 May 2008.
5. The further amended application asserts that the Tribunal overlooked key evidence found on page 109 of the court book. That is the last page of a multi-page document commencing on page 84 of the Court book. The Minister's submissions deal with that argument at paragraphs 7 through to10. I find myself in complete agreement with those submissions and adopt them with minor amendments for the purposes of this judgment:
   • The amended application dated 8 January 2009 filed in the Court by the applicant alleges that the Tribunal “failed to consider core integers” of his claim for protection and “took into account irrelevant considerations”. Those contentions are then particularised in terms of the Tribunal (allegedly) not taking into account his statement and the list of members of the MDMK party that he submitted (CB84-109). The applicant says that if the Tribunal member “had taken this piece of evidence into account”, referring to that list (or a page of it), “the Tribunal would not have concluded that the applicant is an untruthful witness”. No written submissions have been made by the applicant.
   • The Tribunal plainly did take into account the evidence to which the applicant refers. It refers extensively to his statement (set out fully at CB129-131) and also refers to it in its reasons for rejecting his claims (from CB140, first dot point). With respect to the membership list, the Tribunal notes receiving it from the applicant at the top of CB132 and specifically considers it in the last dot point commencing on CB142.
   • The weight to be given to this material was entirely a matter for the Tribunal. The fact that it did not persuade the Tribunal to a different decision does not mean that it was not considered. It clearly was considered. The fact that evidence is not accepted, or is not given the weight that an applicant might wish, does not mean that it is not considered. In truth, the applicant is seeking only to cavil with the merits.
   • In addition, the material upon which the applicant relies in his particulars is in the nature of mere evidence rather than a claim that the Tribunal is jurisdictionally obliged to consider. Failure to consider a claim that the Tribunal is jurisdictionally obliged to consider, or failure to consider a mandatorily relevant consideration, is not established by “a failure merely to attend to evidence, even probative evidence, and by such route (to) commit a factual error...” (Htun v Minister for Immigration (2001) [2001] FCA 1802; 194 ALR 244 at [42] per Allsop J (Spender J agreeing at [1])).
6. This applicant failed before the Tribunal because he was not believed. The Tribunal treated the numerous inconsistencies in his evidence as utterly destructive of his credibility. Further, the applicant had attempted to rely upon a letter from an Indian Member of Parliament which was found by the Tribunal not to be genuine and which the applicant effectively admitted was not genuine. The circumstances are summarised on page 142 of the court book at the second last dot point:
   • The applicant submitted a letter to the Tribunal from Mr P R Siva, Member of the Legislative Assembly in Pondicherry. The Australian Department of Foreign Affairs and Trade contacted Mr P. R Siva and were informed that the letter was a forgery. Mr P.R. Siva confirmed this in writing. When the Tribunal wrote to the applicant pursuant to section 424A of the Act and provided him with a copy of the letter from Mr P.R Siva he responded that he explained his situation in Australia to a party member and that the party member arranged to obtain the letter. He stated that he did not personally request this letter. He then stated that a friend called him and informed him that he had obtained the letter for him. He claimed that he was not aware that the letter was not genuine. For all the reasons given above the Tribunal has serious concerns in relation to the applicant’s credibility. The Tribunal does not accept that the applicant was not aware that the letter was not genuine. The Tribunal rejects the letter from Mr P.R. Siva on the basis that it is a forgery and it does not add anything further to the applicant’s claims.
7. In my view, the Tribunal did take into account the material submitted by the applicant in support of his claims. If, however, the Tribunal had overlooked some item of corroborative evidence this case would, in my view, fall within the rare class of cases in which the applicant's credibility had been so utterly destroyed that the well had been poisoned and the Tribunal was not required to further drink from it[1].
8. Counsel for the Minister properly raised in submissions the issue of the operation of s.424 of the Migration Act. I incorporate, for the sake of completeness, the Minister's submissions from paragraph 11 through to paragraph 22:
   • This issue relates to the Tribunal’s request to DFAT at CB113 to provide advice on whether the letter submitted by the applicant from Mr Siva is authentic. (It was DFAT that then took the step of contacting Mr Siva).
   • Firstly, it is noted that appeals to the High Court in SZKTI and SZLFX are being heard by the High Court on 2 April 2009. Also, SZLPO v MIAC was heard by a Full Court of the Federal Court of Australia on 3 November 2008 (decision still reserved). These cases will probably clarify the requirements of section 424 and the circumstances (if at all) where jurisdictional error may arise if the procedure contemplated by section 424(2) and (3) / 424B is not followed. It is a matter for the Court whether it awaits these judgments. SZLPO is concerned with whether a request to a foreign post attracts 424(2) – and may also deal with whether there would in any event be jurisdictional error if section 424(2) was attracted and section 424(3)/424B were not followed, but section 424C was not relied upon.
   • Assuming that the judgment in SZLPO remains reserved when the present case is heard and that the Court does not wish to await that judgment, the following submissions are made.
   • SZKTI was not concerned with a request to DFAT. The first respondent notes that in SZLTR v MIAC [2008] FCA 1889, Siopis J, for reasons stated at [33]-[34], seemed inclined to the view that section 424(2) does not have application to requests of DFAT. His Honour seemed to suggest that section 424(2) may be limited to circumstances where the recipient of an invitation has already supplied information to the Tribunal in relation to the review and he or she has provided his address to the Tribunal, or is able to be handed the invitation personally[2]. His Honour did not, however, need to decide the point (see [35]).
   • Certainly, in this case, there could be no doubt that the recipient of the request would have appreciated its authenticity and purpose.
   • The first respondent (formally and protectively) submits that SZKTI, SZKCQ and SZLFX[3] were wrongly decided – acknowledging, of course, that this Court is bound by them. Also formally and protectively, the first respondent submits that section 424(2) does not in any way limit the availability of section 424(1) and that it is, in any case, open to the Tribunal to use section 424(1) when it is seeking additional information from a person. It does not have to use an invitation under section 424(2), which, if used, can ultimately trigger the operation of section 424C or (if the recipient is the applicant) section 425(2) or (3).
   • Further, the first respondent submits that even if section 424(2) was engaged, and section 424(1) was not available as a source of power, no jurisdictional error would in any event arise through any non-observance of section 424(3) and /or 424B if (as here) there was no reliance on section 424C and /or section 424(2) and (3).
   • In any event, this was not an invitation for “additional information” from a “person”. The email was addressed to “Pri”, which I am instructed, means People Smuggling, Refugees and Immigration section of DFAT. It was not seeking further information specifically from “Pri”, rather, it was seeking “the post’s assistance in providing” an answer to a question – i.e. whether the abovementioned letter is authentic. This is not seeking additional information from a “person” within the meaning of section 424(2), even though section 22 of the Acts Interpretation Act 1901 extends the meaning of that word to a body politic or corporate. Rather, the Tribunal was simply seeking to engage the assistance of the Post to obtain information from some appropriate source to be determined. It was left to the Post to determine from whom or how the information should be sought (save that the identity of the applicant was to be protected). That may have been from outside the Post, or from the internet, or some other resource, as well as from some person within the Post.
   • If, nonetheless, the Court considers that section 424(2) was engaged, the first respondent notes (without concession) that there are three matters which fall for consideration.
   • First, it may be contended by the applicant that the request was not sent to the last email address provided to the Tribunal by the recipient for the purposes of the review (see sections 424(3); 441A). There are a number of answers to this:
     1. There is no evidence that the email address used by the Tribunal was provided to the Tribunal in connection with this particular review. Nonetheless, it may have been provided for the purposes of all reviews. There is no evidence that it was not and the onus is upon the applicant to make out his case;
     2. Further, SZBQS v MIAC [2008] FMCA 812 (Driver FM) suggests that any error by the Tribunal was not a jurisdictional one. There, although finding, on one view, absurdity in the application of section 441A to correspondence to persons regularly contacted by the Tribunal, which absurdity seemed to suggest that section 424(2) and (3) may have no application at all in those circumstances[4], Driver FM considered himself bound by SZKTI at [52]-[53] to find that the request for advice from the Australian Ahmadiyya Association (with which the Court was there concerned) was a “formal step falling within the purview of section 424” and that “before (the Tribunal) sending its request to the Association, s441A(4) relevantly required that the Tribunal confirm the address of the Association with the Association for the purposes of that review”. However, for reasons explained at [28], Driver FM found that there was no jurisdictional error vitiating the Tribunal’s decision. The course taken by the Tribunal did, as explained at [27], have the consequence that section 441C(4) and regulation 4.35 would not apply, but, as the Court explained at [28], Parliament “would not have intended to deprive the Tribunal of the ability to write to a recipient at an address already known to it, subject to the proviso that the recipient would not be deemed to have received the correspondence and must be given a reasonable time to respond”;
     100. Also, the first respondent notes that Cameron FM (albeit for different reasons[5]) reached a similar result in SZIAR v MIAC [2008] FMCA 1348; (2008) 220 FLR 232, where the Tribunal obtained an email address from its own records and not from the recipient of the request for the purposes of the review. Cameron FM considered the intention of the legislature to be that, in cases where the Tribunal is eliciting information from a third party, an address already known to the Tribunal could be used. He thus reasoned by adopting what he saw as a correct, purposive interpretation of sections 424(3)(a) and 441A, rather than by distinguishing between jurisdictional and non-jurisdictional error. See SZIAR at [36]-[38];
     4. The first respondent submits that the approach in SZBQS and that in SZIAR are correct. In the present case, either there was no contravention of the provisions of the Act, or, if there was, it was not a jurisdictional error.
        
   • Second, again assuming (without concession) that sections 424(2), 424(3) and 424B were attracted, the first respondent notes that, whereas DFAT were given 20 days to answer the request, regulation 4.35 prescribes, from the date the request is received, 28 days if the information is to be provided from overseas. This is not a jurisdictional error. The judgment of Buchanan J in SZLWQ v MIAC [2008] FCA 1406 assists. That judgment concerned a case where a facsimile communication with a foreign organisation specified no time for response at all. Buchanan J held that there was no “breach” of the Act or jurisdictional error - section 424C not having been (purportedly) relied upon by the Tribunal. At [52], he Honour held:
     • Section 424B(2) on its face directs that ‘information or comments are to be given within a period specified in the invitation’. It does not, in terms, impose a direct obligation on the RRT about the terms of the invitation (cf. s 424B(1) – ‘the invitation is to specify ...’). The consequence of any failure to specify a period is that the facility in s 424C of proceeding to a decision in the absence of the information might not be available but I do not see s 424B(2) as establishing the kind of obligation on the RRT which could lead to either statutory breach or jurisdictional error. A circumstance of this kind (failure to specify a period and consequent inability to rely on s 424C) does not fall within any of the reasoning in SZKTI, SZKCQ or SZIZO. As it happens the information was given. It was brought to the attention of the appellant. She had an opportunity to deal with it. It cannot be said that the information was not given before the time for it had passed (s 424C(1)(b)). In my view no ‘breach’ of s 424B(2) occurred and, in any event, any failure to comply with its strict terms did not, in the circumstances of this case at least, amount to jurisdictional error on the part of the RRT. The Minister’s latest written submissions drew attention to judgments of this Court to similar effect (SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 449 and M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247; (2006) 155 FCR 333 at [34]–[37]).”
   • Third, the request from the Tribunal did not expressly indicate the way in which the response was to be received [See section 424B(1)(a)]. There are two answers to this argument:
     1. It is at least analogously met by the same argument as put in the last above paragraph dealing with SZLWQ. This should be seen not as a “breach” of the Act, or as a jurisdictional error, but, at most, in the present case, as a circumstance whereby section 424C would not have become available for the Tribunal to rely upon in relation to the request;
     2. In any event, it is submitted that it was implicit that a written response was required. In SZBQS v MIAC [2008] FMCA 812, Driver FM at [24] reached such a finding in relation to the request there under consideration, as the request was a formal one in writing.
9. It is not appropriate that I make any finding on those submissions given the applicant's choice not to argue the point and because I am bound by decisions of the Full Federal Court which are currently under consideration in the High Court.
10. I merely observe that there is some attraction in the proposition that s.424(1) of the Migration Act empowers the Tribunal to undertake a broader range of inquiries than that caught by s.424(2) and (3) and that the Tribunal, when making inquiries of another agency of the Executive Government of the Commonwealth (of which the Tribunal is a part) is not making an invitation to a “person” for the purposes of s.424(2). In such circumstances the Tribunal would not be able to place reliance upon s.424C and s.425(2) and (3). Those are matters that will no doubt be resolved in the fullness of time by the superior courts. This is not the appropriate case to deal further with them.
11. I find that the decision of the Tribunal is free from jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I so order.
12. The application having been dismissed, costs should follow the event. The Minister seeks an order for costs fixed in the sum of $7,000. Scale costs would be $5,000. The applicant did not wish to be heard on costs. The applicant today was at pains to limit the area of dispute between him and the Minister to the issue raised in his further amended application. That removed from consideration the most difficult issue concerning the operation of s.424 of the Migration Act. The applicant is entitled to the benefit of that effort to confine the dispute notwithstanding that the issue had previously been identified at the interlocutory stage and the Minister had prepared for it. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,000 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 19 February 2009

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[1] Re Minister for Immigration; Ex parte S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [49]
[2] His Honour referred to MIMIA v Sun [2005] FCAFC 201; (2005) 146 FCR 498 – concerned with section 359 of the Act and not referred to in SZKTI or SZKCQ – pointing in a different direction from SZKTI and SZKCQ and holding that the Tribunal was not precluded from obtaining additional information from an applicant other than by formal invitation under section 359.
[3] which followed and applied SZKCQ
[4] both points being ones that the first respondent would formally and protectively adopt
[5] see SZIAR at [36]-[38].