SZNMU v Minister for Immigration & Anor [2009] FMCA 719 (24 July 2009)

Last Updated: 4 August 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNMU v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 719

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case – observations on the power of the Tribunal to recall and remake a decision.

Acts Interpretation Act 1901 (Cth), s.33 Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth)

Minister for Immigration v Bhardwaj [2002] HCA 11 X v Minister for Immigration [2002] FCA 56

Applicant:

SZNMU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 943 of 2009

Judgment of:

Driver FM

Hearing date:

24 July 2009

Delivered at:

Sydney

Delivered on:

24 July 2009

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms E Warner Knight Australian Government Solicitor

INTERLOCUTORY ORDERS

(1) The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 943 of 2009

SZNMU

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 decision was made on 13 March 2009. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
2. The applicant is from India and had made claims of religious and political persecution. He arrived in Australia on 9 July 2008 and applied for a protection visa on 22 August 2008. The Minister's delegate rejected that application on 20 November 2008. The decision was notified the following day. The applicant sought review before the Tribunal on 17 December 2008. The Tribunal was unable to make a favourable decision on the papers and invited the applicant to attend a hearing. The applicant attended and gave evidence. The Tribunal expressed doubts about the applicant's claims at the hearing and referred to certain country information which appeared to be inconsistent with the applicant's claims. The Tribunal indicated to the applicant that if he could obtain further evidence from India relating to his claims it would strengthen his case. The Tribunal indicated that it would wait for any further submissions until 12 March 2009.
3. The Tribunal purported to make a decision on 12 March 2009 on the assumption that there was no further submission from the applicant. After the decision had been made and notified on 12 March 2009 the presiding member became aware that the applicant had made a submission. The decision of 12 March 2009 was recalled and reconsidered. It is apparent that the additional material submitted by the applicant was taken into account by the Tribunal in its second decision made the following day.
4. These proceedings began with a show cause application filed on 22 April 2009. That application asserts, without particulars, that the Tribunal failed to understand the seriousness of the fear the applicant was facing and ignored the serious issue of his claims. In view of the generality of the ground advanced, I directed that the matter be considered a show cause hearing. The show cause hearing commenced on 22 June 2009. At that time, Mr Killalea, who had been appointed as the applicant's panel adviser, appeared and advised the Court that, although he had provided certain advice to the applicant, he had not had the opportunity to listen to the Tribunal hearing tapes. In the circumstances, I adjourned the hearing until today. The applicant told me today that he has had no further contact with Mr Killalea, although he has attempted to make contact. I note that the applicant has had the benefit of advice under the Minister's panel advice scheme. I do not think that any further action by the Court is necessary in relation to the applicant's access to advice under that scheme.
5. I have before me as evidence a short affidavit filed by the applicant on 22 April 2009 and the book of relevant documents filed on 22 May 2009. I invited oral submissions today from the parties. The applicant told me that he did not understand what was necessary to support his review application to the Tribunal. He considers that if he had had a better understanding he might have been able to achieve a different outcome. However, in response to a question from me, the applicant accepted that the difficulty was his and was not a mistake by the Tribunal. The Tribunal in its decision set out faithfully the nature of the applicant's claims. Those claims were considered by the Tribunal. The Tribunal took into account the additional material submitted by the applicant immediately after the first purported decision of the Tribunal. The applicant's claims were rejected on credibility grounds. Although it does not appear to have been necessary to do so, the Tribunal also considered the opportunity for the applicant to relocate within India to avoid the risk of harm. I see no arguable case of jurisdictional error in relation to the Tribunal's approach.
6. I have considered whether any arguable case of error arises from the fact that the Tribunal made two decisions on 12 and 13 March 2009. The first decision was a purported decision which was recalled when the presiding member realised that the applicant had taken advantage of the invitation extended to him at the Tribunal hearing. The presiding member was correct to reason that the Tribunal decision may have been vitiated by unfairness if the additional material submitted by the applicant in those circumstances had not been taken into account. Although the Tribunal is generally functus officio after it has made a decision on a review[1], it does not follow that the Tribunal is unable to recall a decision.
7. The issue was considered by the High Court in the Minister for Immigration v Bhardwaj [2002] HCA 11. The High Court found that the Tribunal had a power to recall a decision and to make a second decision by virtue of s.33(1) of the Acts Interpretation Act 1901 (Cth). Where the Tribunal realises that by its own error it has not accorded an applicant the required merits review, the Migration Act 1958 (Cth) discloses no contrary intention for the purposes of s.33(1).
8. I conclude that the applicant has failed to advance an arguable case of jurisdictional error by the Tribunal. Neither is any arguable case of error apparent to me from my own reading of the material. I conclude that the application should be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). I so order.
9. The application having been dismissed, costs should follow the event. The Minister seeks costs on a party-party basis of $3,100, taking into account costs thrown away by reason of the adjournment of the show cause hearing on 12 June 2009. The applicant did not wish to be heard on costs. I am satisfied that costs of not less than $3,000 have been reasonably and properly incurred in this matter when considered on a party-party basis. I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 29 July 2009

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[1] X v Minister for Immigration [2002] FCA 56 at [23]