SZKMQ v Minister for Immigration

[2009] FMCA 72

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKMQ v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 72

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – show cause order – whether the Tribunal breached s.424 of the Migration Act 1958 (Cth).

Migration Act 1958 (Cth), ss.424, 424A

Applicant: SZKMQ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2809 of 2008

Judgment of: Driver FM

Hearing date: 9 February 2009

Delivered at: Sydney

Delivered on: 9 February 2009

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms E Warner Knight
Australian Government Solicitor

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) that the Minister show cause why relief should not be granted in relation to the Tribunal’s failure to make enquiries of the priest identified by the applicant in accordance with the requirements of s.424 of the Migration Act 1958 (Cth).

2. The application be listed for a final hearing at 10.15am on 28 May 2009.

3. Any further evidence upon which either party wishes to rely is to be in affidavit form and have annexed to it any relevant documents, to be filed and served no later than 30 April 2009.

4. The applicant is to file and serve on the respondents an outline of written submissions and list of authorities no later than 14 days before the final hearing.

5. The first respondent is to file and serve on the applicant an outline of written submissions and list of authorities no later than 7 days before the final hearing.

6. Cost of today’s hearing are costs in the proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2809 of 2008

SZKMQ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an amended application seeking relief under the Migration Act 1958 (Cth) (“the Migration Act”) in relation to a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was apparently handed down on 8 October 2008. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant had claimed persecution in India on political and religious bases. He furnished a substantial amount of material in support of his claims. He was, however, not believed. Among the supportive materials was a series of letters from a Christian establishment in India. It is apparent from the Tribunal decision at page 400 of the court book that I have before me that the Tribunal made an oral inquiry for additional information from a Bishop in India and the Bishop's secretary provided a mobile telephone number for a priest allegedly known to the applicant. The Tribunal was unable to contact the priest on the number given and obtained further oral information that the priest was known to a religious institution in India but did not work there and had not worked there at a time alleged by the applicant. Information was put to the applicant in the form of an s.424A letter. In the light of the applicant's response to that letter, the information was disregarded.

3. There are a number of questions relating to the approach taken by the Tribunal. First, there is a question whether the Tribunal was pursuing an inquiry to obtain additional information pursuant to s.424 of the Migration Act. The second is whether, if the Tribunal was doing so, it committed a jurisdictional error in failing to follow the procedural requirements of the section. The third is whether, by ultimately disregarding the information in the light of comments provided by the applicant, the Tribunal breached the requirement in s.424 to take into account information obtained pursuant to that section. The final issue is whether the failure to make a written approach to the priest identified affects, in a jurisdictional sense, the adverse credibility findings made by the Tribunal especially in relation to the letters provided by the applicant.

4. The solicitor for the Minister conceded that there were issues relating to the operation or possible operation of s.424 that merited a final hearing in this matter. The Minister conceded no other arguable case of jurisdictional error in this matter. I agree that there is nothing in the amended application filed on 27 January 2009 which raises an arguable case of jurisdictional error. However, the issue raised by the Minister's solicitor and the issues independently arising in my mind upon reading the Tribunal's decision, which I have summarised above, do raise an arguable case for the relief sought by the applicant.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  11 February 2009