071761359
11 December 2007, Sydney
Mr D O’Brien, Principal Member
STUDENT TEMPORARY (CLASS TU) – SUBCLASS 573 (HIGHER EDUCATION
SECTOR) – VISA CANCELLATION – CONDITION 8202(3)(a) – CERTIFIED AS NOT ACHIEVING
SATISFACTORY COURSE PROGRESS – The applicant’s visa was cancelled by a delegate
of the Minister for Immigration and Citizenship because he had failed to comply
with condition 8202 of his visa. The delegate found that the education provider
had certified him as not achieving satisfactory course progress and that no
exceptional circumstances applied. The education provider sent the applicant a
letter advising that it was required to report him for not achieving
satisfactory academic progress. The applicant did not appeal that decision and
transferred to another education provider. The applicant claimed before the
Tribunal that exceptional circumstances applied because he was unfairly treated
by his education provider with respect to his exam results, review of those
grades and access to his examination papers. The applicant had exercised his
right to seek redress through his education provider’s Student Ombudsman. The
applicant also made claims regarding difficulties when seeking to change course
provider after his first term and instructions given to him to transfer his
studies to another campus. The applicant gave evidence that his mother was
suffering depression as a result of the mental harassment the applicant was
experiencing from his education provider. Whilst the applicant claimed his
mother’s condition affected his studies he did not give any medical certificate
regarding his own state of health.
Held: Decision under review affirmed
The version of condition 8202 in force as at 1 July 2007 applied
to the applicant because the breach of condition 8202 occurred after that date:
r.5 of the Migration Amendment Regulations 2007 (No. 5). The applicant’s
education provider had certified that the applicant did not achieve satisfactory
course progress and on that basis the Tribunal found that the applicant had not
complied with condition 8202(3)(a). The Tribunal considered the applicant’s
claims that his non-compliance was due to exceptional circumstances beyond his
control but found that such circumstances did not arise. The applicant’s claims
that he was poorly treated by his education provider were not borne out in the
evidence he supplied and was refuted by his education provider. It was clear
that the applicant was aware of his right to seek redress through the education
provider’s complaint processes and had raised matters with the Student
Ombudsman. The Tribunal found no suggestion that the applicant’s unsatisfactory
academic progress was caused by his mother’s illness. Having found the applicant
in breach of condition 8202, in the absence of exceptional circumstances, the
Tribunal found that s.116(3) of the Migration Act 1958 required his visa to be
cancelled.
071566171
27 December 2007, Melbourne
Ms J Ellis, Member
STUDENT TEMPORARY (CLASS TU) – SUBCLASS 573 (HIGHER EDUCATION
SECTOR) – VISA CANCELLATION – CONDITION 8202(3)(b) – ACADEMIC RESULT – A
delegate of the Minister for Immigration and Citizenship cancelled the
applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) & (3) of
the Migration Act 1958 on the ground that the applicant breached condition
8202(3)(b) of his visa. The applicable version of condition 8202(3)(b) required
the applicant to achieve an academic result that was certified by the education
provider to be at least satisfactory. The applicant’s education provider sent
him a notice under s.20 of the Education Services for Overseas Students (ESOS)
Act 2000 stating that he had failed to achieve satisfactory academic results in
the course because he had failed six out of seven subjects in which he was
enrolled and had been suspended from his course. Before the delegate, the
applicant claimed that the non-compliance was due to exceptional circumstances
beyond his control but provided no evidence to substantiate his claims. The
applicant did not respond to the Tribunal’s letter inviting him to comment on
relevant information or to provide evidence of exceptional circumstances beyond
his control in relation to his non-compliance.
Held: Decision under review set aside
The Tribunal noted that the applicant was issued with a s.20
notice by his education provider stating that his academic results during the
relevant term and semester were not satisfactory. Furthermore, the applicant had
not produced any evidence to the Tribunal that the education provider had
certified his academic results for the relevant period to be satisfactory.
However, the Tribunal found that it was bound by Dai v MIAC [2007] FCAFC 199 to
find that the power to cancel the applicant’s visa was not engaged in relation
to a breach of the applicable version of condition 8202(3)(b). Accordingly, the
Tribunal was not satisfied that grounds for cancellation existed.
Bhutan
071626084
21 November 2007, Sydney
Mr S Roushan, Member
BHUTAN – ETHNIC NEPALIS – RELIGION – CHRISTIANITY – The applicant
claimed to fear persecution as an ethnic Nepali living in Bhutan on the basis of
his ethnicity and religion. The applicant claimed that his family’s house and
land had been confiscated by the Bhutanese army, his mother had been raped and
beaten, and that he had been forced to leave Bhutan for a refugee camp in India
and subsequently Nepal. The applicant further claimed that under Bhutan’s
citizenship laws he no longer had a right to re-enter Bhutan, and that he would
face further persecution upon return because of his conversion to Christianity
Held: Decision under review set aside
The Tribunal found the applicant to be a reliable, truthful and
genuine witness. The Tribunal accepted that the applicant was stateless,
assessing his claims against the country of Bhutan as his country of former
habitual residence. The Tribunal accepted that the applicant’s treatment by the
Bhutanese army had left him homeless, destitute and with no choice other than to
follow other expelled ethnic Nepalis to refugee camps in India and Nepal. It
also accepted that the loss of the right to Bhutanese citizenship and right to
return amounted to persecution for the Convention reason of ethnicity. The
Tribunal accepted that the applicant’s conversion to Christianity whilst in
Australia was not an attempt to bolster his refugee claims and that his
ethnicity and Christian faith would place him at real risk of harm in Bhutan.
The Tribunal was not satisfied that he had a right to enter or reside in any
other country. Accordingly, the Tribunal found that the applicant had a
well-founded fear of persecution for a Convention reason.
Brazil
071743935
12 November 2007, Sydney
Ms K Raif, Member
BRAZIL – PARTICULAR SOCIAL GROUP – HOMOSEXUAL – SERIOUS HARM –
WELL-FOUNDED FEAR – The applicant claimed to fear persecution for reasons of her
homosexuality. The applicant claimed that people in Brazil were Catholic and
against homosexuals. Although she had a university degree, she claimed that she
would have no opportunities and not get a job in her chosen field because she
had no connections. The applicant also claimed her mother attended church three
times a week asking God for help and did not want to talk to the applicant or
know about her. She claimed everyone talked about her which was uncomfortable.
She further claimed that if she was to return to Brazil she would have to live
the life her parents wanted her to live. She said that she wanted to be herself
and that if she lived in Brazil she would be unhappy for the rest of her life.
Held: Decision under review affirmed
The Tribunal accepted that the applicant was a homosexual and
that she wished to practise her homosexuality. It also accepted that the
applicant’s parents and family did not support her and she would be ostracised
from family and friends. The Tribunal noted that Brazil is a Catholic country,
societal attitudes may be against homosexuality and that the applicant may face
social discrimination. It accepted that the applicant may be unhappy in Brazil
and may remain single. The Tribunal found that, although the applicant would
suffer alienation and ostracism, discrimination, dislike and an inability to
lead a happy life, this did not amount, singularly or cumulatively, to ‘serious
harm’. It did not accept this harm was of such a magnitude as to prevent the
applicant from earning a livelihood, threaten her capacity to subsist or deny
access to basic services. It also noted laws generally enforced by the federal
and state governments prohibit discrimination based on sexual orientation.
Accordingly, the Tribunal was not satisfied that the applicant had a
well-founded fear of persecution for a Convention reason.
Cameroon
071604056
15 November 2007, Sydney
Mr J Silva, Member
CAMEROON – POLITICAL OPINION – MEMBER OF OPPOSITION POLITICAL
PARTY – FAILED ASYLUM SEEKER – The applicant claimed to fear persecution on the
basis that he was an activist for the main opposition political party in
Cameroon and a member of a banned separatist movement. The applicant claimed
that he was an office bearer for the opposition party and that after leaving it
he organised rallies and promoted the agenda of the separatist movement. He
claimed that he was frequently arrested, detained and tortured by the police
because of his position and involvement in the party. The applicant also gave
evidence that his family was persecuted and a member of his family was killed by
the authorities. The applicant further claimed that because of his profile as a
political activist he would be arrested on his return as a suspected asylum
seeker.
Held: Decision under review set aside
The Tribunal accepted that the applicant had a well-founded fear
of persecution. Despite rejecting some evidence as unreliable and embellished,
it was satisfied that the applicant would face a small, but real, chance that
the Cameroon authorities would persecute him if returned based upon his local
political profile and status as a failed asylum seeker. Independent information
supported the finding that opposition supporters may be at risk of arrest or
violence and that authorities detain failed asylum seekers in certain
circumstances. The Tribunal found that despite the low likelihood authorities
would identify the applicant as having sought asylum, they would consider the
applicant to be an opponent, presume he made refugee claims and detain him for
damaging Cameroon’s reputation. The Tribunal found the harm upon his return
would constitute persecution for the essential and significant reason of his
actual and imputed political opinion. The Tribunal accordingly found the
applicant was a person to whom Australia had Convention obligations.
China
071537790
29 October 2007, Sydney
Mr R Derewlany, Member
CHINA – RELIGION – CHRISTIAN – POLITICAL OPINION – The applicant
claimed to fear persecution on the basis of his Christian beliefs and practice
as a Catholic in China. The applicant claimed that he was a member of the
underground church in China and that he was arrested and detained by the
authorities after being baptised. In his evidence, the applicant submitted a
letter sent to the Minister of Immigration and Citizenship which stated that he
was a Buddhist. The applicant claimed he did not know what was contained in the
letter. The applicant also claimed to have been involved in the 1989
pro-democracy movement as a student. As a result, his home had been
‘investigated and prosecuted’ and the applicant had been detained.
Held: Decision under review affirmed
The Tribunal found the applicant not to be a credible witness.
The applicant demonstrated a limited knowledge of significant aspects of
Christianity and Catholicism that was not consistent with his claims to be a
practising Catholic before arriving in Australia. Furthermore, the applicant’s
statement in his letter that he was a Buddhist cast doubt on his claims. The
Tribunal accepted that the applicant may have participated in the pro-democracy
movement, but did not accept that the applicant was involved at such a level
that he would have come to the attention of the authorities. The Tribunal found
that there was no real chance that the applicant would be subjected to harm if
he returned to China on the basis of his religion or political opinion.
Accordingly, the Tribunal concluded that the applicant did not have a
well-founded fear of persecution for a Convention reason.
071606657
7 November 2007, Sydney
Ms B Forsyth, Member
CHINA – RELIGION – POLITICAL OPINION – FALUN GONG – The applicant
claimed to fear persecution in China because of her practice of Falun Gong. The
applicant claimed that she started practicing Falun Gong in 1998 because she
heard from a friend it was good for her health, and that her health had improved
with her continued practice. She claimed that she had practiced from 1998
onwards, but that after there was a crackdown in 1999 she would only practice in
private. She claimed to have been arrested, detained and abused by the police on
one occasion, detained for a short period without arrest on another, and
continually monitored and questioned by police and her neighbourhood community
about her involvement. The applicant claimed to have continued to study and
practice Falun Gong whilst in Australia. The applicant gave evidence regarding
her practice and understanding of Falun Gong at her hearing, demonstrated her
ability to perform the exercises and explained their purpose. The applicant was
supported at her hearing by two witnesses who claimed that from their
discussions with her at weekly study sessions she demonstrated a deep knowledge
consistent with that of a long term practitioner.
Held: Decision under review set aside
The Tribunal found the applicant to be a compelling and sincere
witness, who would not have been able to meaningfully respond to its questions
in the manner she did, unless she had genuinely studied Falun Gong and
understood its teachings. The Tribunal considered that the applicant’s witnesses
were credible and that they were telling the truth. The Tribunal accepted that
the applicant had been a practitioner of Falun Gong since 1998, had continued
with her practice since arriving in Australia and would face persecution by the
Chinese authorities if she was to return. The Tribunal considered that the
applicant’s conduct in Australia was not engaged in solely for the purpose of
strengthening her claims and found that adequate state protection or relocation
were unavailable to her. The Tribunal accordingly concluded that the applicant
had a well-founded fear of being persecuted for a Convention-related reason.
071673563
9 November 2007, Sydney
Mr C Packer, Member
CHINA – POLITICAL OPINION – ANTI-GOVERNMENT – The applicant
claimed to fear persecution for reasons of his actual or imputed anti-government
political opinion. The applicant claimed that he and a relative pursued a
provincial organisation over a debt, but a court refused to accept the legal
action. He claimed his lawyer was then arrested and they and their workers
staged public protests. The applicant further claimed this led to their arrest
and detention where they were ill-treated. After their release they anonymously
put up anti-government posters which led to the applicant’s relative and some
workers being re-arrested. The applicant fled to other provinces by changing his
household registration. Because his relative had been re-arrested the applicant
believed the police considered him a key leader of the anti-government protest
and were searching for him to arrest him. He also claimed his family and friends
were investigated.
Held: Decision under review affirmed
The Tribunal found that the applicant was not a credible witness
as there were significant differences between his application and evidence at
hearing. It found that he fabricated his story for the purposes of claiming
refugee status. When his evidence was tested he gave a confused and changing
account and the Tribunal did not accept his various explanations for these
changes. The Tribunal rejected all the applicant’s claims concerning his reasons
for departing China including those concerning the provincial organisation debt,
the lawyer’s arrest, his arrest and release, the incriminating posters leading
to his relative’s re-arrest, his decision to flee China and his hiding in
another province. It did not accept the government, Public Security Bureau or
any other authorities had any interest in him before leaving China because of
his political or imputed political opinions. Accordingly, the Tribunal was not
satisfied that the applicant had a well-founded fear of persecution for a
Convention reason.
071652176
22 November 2007, Sydney
Mr D Dobell, Member
CHINA – RELIGION – ROMAN CATHOLIC – The applicant feared
persecution by the Chinese authorities because he was a Roman Catholic Christian
and a member of an underground church. He claimed to have assisted a church
leader by spreading the gospel and organising ‘Catechumen’ classes. He claimed
that he was arrested, detained and tortured by the National Security Bureau as a
result of these activities. The applicant claimed to have been released from
detention after he saved the life of a prison guard. When he was released his
passport was accidentally returned to him, the applicant believing that this
‘was the work of God’. The applicant again came to the attention of the
authorities and fled to Australia where he had previously visited with his
family. The applicant also claimed to have regularly attended church since he
arrived.
Held: Decision under review set aside
The Tribunal found that the applicant’s evidence on the whole was
coherent, consistent and detailed. However, the Tribunal had some doubts about
the applicant’s evidence concerning his release from detention and the return of
his passport. The Tribunal considered that if he was just looking for an
opportunity to apply for a protection visa he could have done so when he first
visited Australia. The applicant’s claim that he had regularly attended church
since he arrived in Australia was supported by two Catholic priests.
Accordingly, the Tribunal found that the applicant had a well-founded fear of
persecution for a Convention reason.
071739399
29 November 2007, Sydney
Ms J Marquard, Member
CHINA – IMPUTED POLITICAL OPINION – FALUN GONG – The applicant
claimed to fear persecution on the basis that she was a Falun Gong practitioner.
She claimed that following the official crackdown on Falun Gong in the 1990s,
she had been dismissed from her employment, subjected to surveillance, detained
and assaulted by Chinese authorities. The applicant claimed that she practiced
and studied Falun Gong and distributed Falun Gong-related information. She
claimed that she experienced difficulties finding and retaining employment as a
result. She further claimed to have bribed authorities in order to obtain a
passport and that she would be arrested if she were to return to China because
of her ongoing commitment to practicing Falun Gong. At the hearing, the
applicant gave evidence regarding her understanding of Falun Gong, demonstrated
the exercises and explained their purpose. The applicant also submitted
photographs, details of protests and statements from other Falun Gong
practitioners attesting to her involvement in Falun Gong activities.
Held: Decision under review set aside
The Tribunal was satisfied that the applicant was a genuine Falun
Gong practitioner, based on her detailed knowledge of Falun Gong principles and
exercises, as well as evidence from witnesses and independent information. It
accepted her claims that she had been dismissed from employment and detained and
assaulted by Chinese authorities. This harm amounted to persecution because it
involved a threat to her life and liberty. The Tribunal found that the applicant
was persecuted for her imputed political opinion because the Chinese government
is concerned by the threat to its authority from Falun Gong practitioners. It
further found that the applicant’s imputed political opinion was the essential
and significant reason for her persecution and the harm she faced was deliberate
and intentional. The Tribunal considered that there was a real chance that the
applicant would be detained or assaulted if returned to China because of her
dedication to practicing Falun Gong. Furthermore, it would not be reasonable for
the applicant to relocate to another part of China. The Tribunal accordingly
found that the applicant was a person to whom Australia had protection
obligations under the Convention.
Nigeria
071602371
13 November 2007, Sydney
Ms C Long, Member
NIGERIA – PARTICULAR SOCIAL GROUP – IBO ETHNIC GROUP – POLITICAL
OPINION – The applicant claimed to fear persecution on the basis that he
belonged to the ethnic group Ibo, and supported their cause for a separate state
of Biafra. The applicant also claimed that he was a member of a proscribed
organisation called Massob. The applicant claimed that he had been threatened,
detained, tortured and ill-treated by the authorities because of his Massob
membership. He also claimed to have been deprived of an education due to this
involvement and because he was Ibo. The applicant claimed that following his
detention, he went into hiding in Nigeria before arriving in Australia. The
applicant further claimed that he feared harm should he return as he remained a
person of interest and would not receive protection in Nigeria.
Held: Decision under review affirmed
The Tribunal accepted independent information concerning violence
and human rights abuses perpetrated by Nigerian authorities against Massob and
the Ibo people. However, the Tribunal did not accept that the applicant was
harmed, threatened and detained because of his involvement with Massob or that
he was Ibo. The Tribunal did not accept that he left Nigeria for these reasons,
nor did it accept that he feared further harm should he return. The Tribunal
found that the applicant gave untrue evidence to assist his protection
application. The Tribunal also noted that the applicant could provide little
detail of his circumstances during the lengthy period in which he claimed to be
in hiding. The applicant did not reasonably explain how he had left Nigeria,
given that he claimed to be a person of interest. The Tribunal did not accept
that there was a real chance that the applicant would be persecuted for reasons
of his ethnicity or political opinion should he return. Accordingly, the
Tribunal concluded that the applicant did not have a well-founded fear of
persecution for a Convention reason.
The Philippines
071687545
30 November 2007, Sydney
Ms J Ciantar, Member
THE PHILIPPINES – POLITICAL OPINION – MEMBERSHIP OF PARTICULAR
SOCIAL GROUP – KAMPI SUPPORTER – The applicant claimed he was an ordinary member
of the Kabalikat ng Malayang Pilipino (KAMPI) political party. He was actively
involved in campaigning for it during a local election when he and a local
fellow member were attacked and beaten by Nationalist Party Coalition (NPC)
members. The applicant claimed that he was hospitalised and when he returned
home found that his house had been damaged. A neighbour told him that this was
done by NPC supporters who sought to kill him. The applicant claimed he reported
the matter to the police but they took no action and that the NPC enjoyed their
support. The applicant claimed that he was terrified and went into hiding,
living with different friends and could not work as he feared being located. The
Tribunal put to the applicant that it seemed unlikely that the NPC would target
ordinary party members and queried how it would be able to distinguish him from
others. Independent information also suggested that KAMPI was part of the ruling
coalition and enjoyed in power locally.
Held: Decision under review affirmed
The Tribunal accepted that the applicant was a member of KAMPI
and was actively campaigning when injured in a clash at a political rally.
However, the Tribunal was not satisfied that the applicant had a political
profile of any kind or was of interest to the NPC. The Tribunal found the
applicant’s account of his experiences were not credible, vague and lacking in
detail. The Tribunal found the applicant’s explanation that he was targeted was
not plausible as it was highly unlikely that the NPC would target ordinary
members of KAMPI for no particular reason. Independent information indicated
that KAMPI is likely to be in a comparatively powerful position. The Tribunal
was not satisfied that the police failed to protect the applicant for a
Convention reason or would fail to do so in the future because of his political
opinion, membership of KAMPI or for any other Convention reason. Accordingly the
Tribunal was not satisfied that the applicant was harmed in the past or that
there was a real chance that he would be harmed for a Convention reason if he
were to return to The Philippines now or in the reasonably foreseeable future.
FEDERAL COURT JUDGMENTS
SZJSP v MIAC
[2007] FCA 1925
Federal Court of Australia, Madgwick J, NSD 1575 of 2007, 22 November 2007.
This was an appeal from a judgment of the Federal Magistrates
Court dismissing an application for judicial review of a Refugee Review Tribunal
(‘the Tribunal’) decision that the appellant was not a person to whom Australia
had protection obligations.
The appellant named an authorised recipient on the Tribunal
application form lodged in 1997. The street address and fax number for the
authorised recipient’s firm were given. Following an affirm decision by the
Tribunal, the matter was remitted back to the Tribunal and the new Tribunal
wished to conduct a hearing. The Tribunal sent the notice by post in an envelope
that contained the name of the firm and the address provided in the original
application. The authorised recipient’s name did not appear on the envelope but
did appear on the letter. On 1 August 2006, the principal of the firm rang the
Tribunal and then notified it in writing that the authorised recipient no longer
worked at the firm. The Tribunal sent the notification to the appellant at a
residential address provided through previously made consent orders and to two
other previous residential addresses. The appellant attended the hearing
accompanied by his new migration agent.
The appellant contended before the Federal Magistrates Court that
the Tribunal erred by failing to notify the appellant’s authorised recipient in
the prescribed manner of the notice to attend a hearing. The Federal Magistrate
dismissed the application on the basis that there was no authorised recipient
after 1 August 2006 and accordingly, the letter sent to the appellant at his
last known address complied with the notification provisions under the Migration
Act 1958 (‘the Act’).
Held: Appeal dismissed
(i) The Tribunal failed to comply with s.441G of the Act,
however, relief should be refused in the Court’s discretion.
(ii) The Federal Magistrate was incorrect to conclude that the
notification from the principal of the firm, that it was no longer authorised to
act in the proceedings, was enough to constitute a withdrawal of the notice
given to the Tribunal in 1997. The scheme of the Act is that there be a named
individual who is to be the authorised recipient. The principal of the firm was
never that person. He did not purport to speak for the authorised recipient nor
for the purposes of the Act could he have done so unless specifically authorised
by her.
(iii) The Tribunal did not send the notice to the authorised
recipient. There was no evidence that the letter was sent in an envelope which
named the intended recipient as the authorised recipient.
(iv) Factors relevant to the exercise of discretion in this case
are that the Tribunal’s default was patently one of a mere clerical oversight;
the appellant had actual notice of the invitation as had a person in whom the
appellant had confidence; the appellant acted on the notice and secured for
himself every right and opportunity of substance which s.441G envisaged for him.
There was adequate and due notice of the hearing and an unmistakably clear and
adequate opportunity to attend before the Tribunal and for him to put his case,
all of which opportunities the appellant took up.
Obiter:
(v) It may possibly be that there can, for the purpose of the
Act, simply cease to be an authorised recipient if it is clear beyond question
that the person who was an authorised recipient has abandoned that role.
SZFNX v MIAC
[2007] FCA 1980
Federal Court of Australia, Besanko J, NSD 194 of 2007, 13 December 2007
This was an appeal from a judgment of the Federal Magistrates
Court dismissing an application for judicial review of a Refugee Review Tribunal
(‘the Tribunal’) decision that the appellant was not a person to whom Australia
had protection obligations.
The Tribunal sent letters to the address provided to the
Department and the Tribunal by the appellant on 2 November and 8 November
advising him of the review process and inviting him to a hearing. No response
was received and the letters were not returned unclaimed. The Tribunal checked
its file and the Department files, but the appellant had not provided another
address, nor was there a phone number for the appellant, nor had the appellant
notified the Tribunal of an authorised recipient. The Tribunal proceeded to
affirm the delegate’s decision under s.426A.
Before the Federal Magistrates Court, the appellant submitted
that a Mr Lue had assisted him with his protection visa and review applications.
Mr Lue never told him about the Tribunal hearing, and he claimed that if he had
been told he would have attended. Relying on the Full Court of the Federal Court
decision in MIMA v SZFDE (2006) 154 FCR 365 , the Federal Magistrate found that
Mr Lue’s conduct, whether fraudulent or not, in failing to inform the appellant
of the hearing of which notification had been given did not give rise to
jurisdictional error. No finding was made in relation to whether Mr Lue’s
conduct was in fact fraudulent.
The appellant contended on appeal that the Federal Magistrate
erred in finding that the Tribunal was entitled to proceed to determine the
application for review.
Held: Appeal allowed. Orders of Federal Magistrate set aside and
application remitted to the Federal Magistrates Court for reconsideration.
(i) The Federal Magistrate did not make findings on whether Mr
Lue was actually fraudulent in his dealings with the appellant, and whether this
had affected the process described in the Act. Therefore, the question of fraud
and its effects on the processes prescribed by the Act must be considered.
(ii) The effect of the High Court decision in SZFDE v MIAC (2007)
81 ALJR 1401 is that if an agent is fraudulent in his or her dealings with an
applicant and that results in an applicant not being heard by the Tribunal then
the Tribunal’s decision may be void, the Tribunal’s jurisdiction being
“constructively unexercised”.
(iii) The judgments in SZFDE indicate that an applicant’s failure
to appear before the Tribunal by reason of bad or negligent advice, as distinct
from fraudulent advice or conduct, is not without more sufficient to constitute
jurisdictional error.
FEDERAL MAGISTRATES COURT JUDGMENTS
S1607 of 2003 v MIAC & Anor
[2007] FMCA 1740
Federal Magistrates Court, Turner FM, SYG 1023 of 2007, 9 November 2007
The applicant, an Indian national, sought judicial review of a
decision of the Refugee Review Tribunal (‘the Tribunal’) that he was not a
person to whom Australia had protection obligations.
The Tribunal had previously made a decision in relation to the
applicant which was set aside and remitted for reconsideration by the Court.
Following the remittal, the Tribunal was constituted by a different member for
the purposes of the review.
By letter dated 25 October 2006, the applicant advised the
Tribunal that he was not fit to attend the hearing scheduled for 30 October 2006
but asked that the Tribunal put in writing matters that could be part of the
reason for a decision that he is not a refugee. On 2 January 2007, the Tribunal
put its concerns to the applicant in a letter under s.424A of the Migration Act
1958 (‘the Act’) and requested him to respond to it by 25 January 2007. On 24
January 2007, the applicant responded in detail and asked the Tribunal to
request more specific information if it needed it. On 10 February 2007, the
Tribunal proceeded to make its decision.
The applicant argued, amongst other things, that the Tribunal
failed to give him a real opportunity to comment on adverse information
contained in s.424A letter as the information to be given in response to the
letter was to come from outside Australia; therefore the prescribed period was
28 days (r.4.35(5)) and not 14 days (r.4.35(3)) under the Migration Regulations
1994 (‘the Regulations’). Further, the applicant argued that the Tribunal was
not properly reconstituted according to s.422A and therefore lacked
jurisdiction.
Held: Application dismissed.
(i) The Tribunal decision was not infected with jurisdictional
error
(ii) The invitation under s.424A was to provide comment on the
information in the letter. That comment was to be provided by the applicant who
was in Australia, and therefore the time limit under r.4.35(3) of the
Regulations is 14 days after the day on which the invitation is received, which,
by s.441C(4) is taken to be 7 days after the date of the letter. The letter was
dated 2 January 2007, which means receipt by 9 January 2007; 25 January 2007
gave 14 days to respond. No breach occurred.
(iii) A member of the Tribunal became unavailable. The power to
reconstitute the Tribunal is in s.422(1) of the Act. The Principal Member had
the power to issue the direction as to the constitution of the Tribunal. That
power was exercised but the incorrect section was stated; that does not
invalidate the appointment. A breach of this section has not been established.
Leng v MIAC & Anor; Moha Sombat Pty Ltd v MIAC & Anor
[2007] FMCA 1961
Federal Magistrates Court, Riethmuller FM, MLG 229 & 230 of 2007, 23 November
2007
The applicants sought judicial review of decisions of the
Migration Review Tribunal (‘the Tribunal’) affirming a decision of the
Minister’s delegate that Moha Sombat Pty Ltd (‘the sponsor’) did not meet the
criteria for approval as a business sponsor, for the purpose of sponsoring the
visa application of Mr Leng and the associated decision affirming the delegate’s
decision to refuse to grant Mr Leng a Subclass 457 Business (Long Stay) visa. .
The Tribunal found that the sponsor was not able to meet the
undertakings required of it pursuant to r.1.20D(2)(f) of the Migration
Regulations 1994 (‘the Regulations’), namely that the sponsor pay Mr Leng a
salary of $80,000 per annum during the period of the sponsorship. In assessing
the capacity of the sponsor to meet these undertakings, the Tribunal considered
the past operations and financial statements of the sponsor. The Tribunal
concluded that the sponsor did not have the financial capacity to pay Mr Leng
such a salary and therefore did not meet the criteria for approval as a business
sponsor. As the business sponsorship was not approved, the Tribunal found that
Mr Leng was unable to satisfy cl.457.223(4) of Schedule 2 to the Regulations for
the purposes of his visa application.
The issue before the Court was whether the Tribunal had erred in
its assessment of the sponsor’s capacity to meet the required undertakings.
Held: Tribunal decisions quashed and remitted for reconsideration
(i) The Tribunal failed to ask itself the correct question under
r.1.20D(2)(f) of the Regulations by failing to consider precisely what the
sponsor’s undertakings were and failed to identify whether the sponsor was able
to fulfil its undertakings from the date of the grant of the visa until the end
of sponsorship. In assessing whether or not the sponsor had the capacity to meet
the undertakings based on its past capacity, the Tribunal made a jurisdictional
error.
(ii) The correct question in relation to the undertaking was
whether or not the sponsor would be able to fulfil the obligations as and when
they fell due.
(iii) In relying on the refusal of sponsorship that contained a
jurisdictional error, the Tribunal took into account an irrelevant consideration
in considering Mr Leng’s application.
(iv) Applying the ‘forward-looking test’ Mr Leng’s application
was not futile: Lee v MIAC [2007] FCAFC 62. If the application for sponsorship
approval was accepted on remittal, this would allow Mr Leng’s application to
succeed.
SZFTD v MIAC & Anor
[2007] FMCA 1930
Federal Magistrates Court, Turner FM, SYG 1659 of 2007, 6 December 2007
The applicant, a Nepalese national, sought judicial review of a
decision of the Refugee Review Tribunal (‘the Tribunal’) that he was not a
person to whom Australia had protection obligations.
The Tribunal had previously made a decision in relation to the
applicant which was set aside and remitted for reconsideration by the Court. The
Tribunal, differently constituted, again affirmed the decision of the delegate
(second decision).
The applicant argued that there was no evidence that the
procedures required by ss.422 and 422A of the Migration Act 1958 (‘the Act’) had
been followed in relation to the reconstitution of the Tribunal following the
remittal by the Court. Evidence of a direction referring to s.421 of the Act, as
the section pursuant to which the Tribunal was reconstituted for the purposes of
the second review, was placed before the Court. The applicant argued that
Tribunal had failed to follow the correct procedure as s.421 was the ‘wrong
power’ to use to reconstitute the Tribunal on remittal.
Held: Application dismissed
(i) The Principal Member had the power to issue the direction as
to the constitution of the Tribunal. That power was exercised. Even if an error
was made by referring to s.421 of the Act in the form, that does not mean that
the power to issue a direction as to who was to constitute the Tribunal had not
been validly exercised.
(ii) The reference to s.421(2) by McHugh J in MIMA v Wang [2003]
HCA 11 in considering the reconstitution of the Tribunal in that matter can be
taken as confirmation that s.421 of the Act gives the Principal Member power to
issue a direction as to the constitution of the Tribunal, where a matter is
remitted to it for determination.
(iii) Based on the presumption of regularity, the Tribunal was
validly constituted by the direction. It may be presumed that s.422A of the Act
was complied with as there is no evidence to rebut this.
SZHYW v MIAC & Anor
[2007] FMCA 2113
Federal Magistrates Court, Nicholls FM, SYG 3607 of 2006, 20 December 2007
The applicant, a national of Bangladesh, sought judicial review
of a decision of the Refugee Review Tribunal (‘the Tribunal’) that the applicant
was not a person to whom Australia had protection obligations.
The Tribunal set out the applicant’s claims to fear persecution
as provided by the applicant’s adviser as: a known history of Awami League
involvement; known involvement in a multi-faith group; an arrest warrant on a
false arms case; membership of the Hindu minority and religion; and known mixed
marriage to a Muslim woman who converted to Hinduism. The Tribunal had concerns
with the applicant’s credibility for various reasons and ultimately found that
it was not satisfied there was a real chance the applicant would face serious
harm amounting to persecution for his political activities or his religion. The
nature of the Tribunal’s reasons as expressed in its decision record was the
issue before the Court.
The applicant contended that the Tribunal’s reasons were so
meaningless and impenetrable that the Tribunal could not be said to have given
proper, genuine and realistic consideration to the claims and had not conducted
a review in accordance with s.414 of the Migration Act 1958.
Held: Tribunal decision quashed and remitted for reconsideration
(i) The Tribunal decision did not demonstrate a proper
consideration of the applicant’s claims amounting to jurisdictional error. The
Tribunal’s stated reasons for its decision were “impenetrable”.
(ii) While addressing other aspects of the applicant’s claims
based on religion, the Tribunal did not properly consider, beyond mere mention,
the issue of the conversion of his previously Muslim wife to Hinduism and the
consequence of this in the context of his claimed fear of Muslim fanatics or
those opposed to his marriage.
(iii) One or two typographical errors, or oversights, should not
attract any adverse comment whatsoever. But the frequency of such deficiencies
in the Tribunal’s decision record strongly supported the submission that the
decision record was not discernible of such meaning such that it could be said
that the Tribunal gave proper consideration to the applicant’s claims.
(iv) Putting to one side the lack of paragraphing, typographical
errors and the inappropriate stream of consciousness style, what was left was a
jumble of ideas and concepts which could not be explained simply on the basis
that the Tribunal, having identified the applicant’s claims, only failed to deal
with these claims without any structure in its approach. Examples of the
deficiencies identified in the applicant’s submissions related to matters of
substance, rather than structure or style.
LEGISLATION UPDATE
Legislative developments of relevance to the work of the Migration Review
Tribunal and the Refugee Review Tribunal are noted below. The following Acts,
Regulations and Instruments are accessible via the Commonwealth Law of Australia
(COMLAW) website – (
http://www.comlaw.gov.au )
Legislation Passed
There has been no legislation relevant to the Tribunals passed
since the last edition of Précis.
Legislation Pending
There is currently no legislation relevant to the Tribunals
pending before Parliament.
The 41st Parliament was prorogued on Monday 15th October 2007 and
the House of Representatives dissolved on Wednesday 17th October 2007 for the
general election held on Saturday 24th November 2007. All bills before the House
and Senate lapsed at prorogation. As such the following bills relevant to the
Migration and Refugee Review Tribunals have lapsed.
Migration Amendment (Sponsorship Obligations) Bill 2007 (Bill -
C2007B00148)
Migration (Climate Refugees) Amendment Bill 2007 (Bill –
C2007B00149)
Migration Legislation Amendment (Restoration of Rights and
Procedural Fairness) Bill 2007 (Bill – C2007B00165)
The 42nd Parliament will meet on 12 February 2008. If this
Parliament desires to proceed with the proposed amendments in the above lapsed
bills, then new bills would need to be introduced.
CASELOAD OVERVIEW
MRT Decisions – January 2008
|
Decision Category
|
Primary decision
set aside
|
Primary decision
affirmed
|
No jurisdiction Withdrawn
|
No jurisdiction Other
|
Total
|
|
Bridging refusal
|
4
|
6
|
3
|
0
|
13
|
|
Visitor refusal
|
6
|
7
|
0
|
1
|
14
|
|
Student refusal
|
17
|
8
|
5
|
4
|
34
|
|
Temporary business refusal
|
5
|
8
|
2
|
8
|
23
|
|
Permanent business refusal
|
4
|
1
|
0
|
1
|
6
|
|
Skill linked refusal
|
27
|
14
|
1
|
5
|
47
|
|
Partner refusal
|
80
|
41
|
5
|
3
|
129
|
|
Family refusal
|
18
|
28
|
4
|
3
|
53
|
|
Student cancellation
|
49
|
29
|
1
|
2
|
81
|
|
Sponsor approval refusal
|
1
|
2
|
0
|
0
|
3
|
|
Other
|
10
|
16
|
3
|
7
|
36
|
