SZEUI v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from an order made by a Federal Magistrate on 19 December 2007. The Federal Magistrate dismissed the appellant's application for constitutional writs directed to the Refugee Review Tribunal ("the Tribunal"). 2 The appellants are nationals of Pakistan. The second appellant is the wife of the first appellant and the third appellant is the son of the first and second appellants. The appellants arrived in Australia on 1 October 2003 and on 6 November 2003 they applied to the Department of Immigration and Multicultural Affairs for Protection (Class XA) visas. The first appellant made a claim under the Refugees Convention as amended by the Refugees Protocol, and the second and third appellants made claims based on the fact that they were part of a family unit of which the first appellant was the family head. It is sufficient for me in these reasons to refer to the case of the first appellant and, for ease of reference, I will refer to him simply as the appellant. 3 On 23 November 2003 a delegate of the Minister refused the appellant's application for a protection visa. He made an application for review by the Tribunal. I will refer to this Tribunal as the first Tribunal. The appellant did not attend a hearing before the first Tribunal. The first Tribunal affirmed the decision of the delegate. The appellant then issued an application for constitutional writs in the Federal Magistrates Court and, on 5 October 2004, the Court made orders by consent including an order remitting the matter to the Tribunal to be determined according to law. On the remitter, the Tribunal, which I will refer to as the second Tribunal, issued an invitation to appear to the appellant and the appellant attended at the hearing and gave evidence. The second Tribunal affirmed the decision of the delegate. Again, the appellant issued an application for constitutional writs in the Federal Magistrates Court and, on 18 May 2006, that court made orders by consent including an order remitting the matter to the Tribunal to be determined according to law. 4 On 5 July 2006 the Tribunal wrote to the appellant advising him that his case had been remitted to the Tribunal. On 19 July 2006 it wrote to the appellant inviting him to a hearing to be held on 15 August 2006. The appellant was advised that the Tribunal had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The appellant sought an adjournment of the hearing on the ground that his wife had been involved in an accident in which she had broken her nose. On 15 August 2006 the Tribunal wrote to the appellant advising him that the hearing had been adjourned to 21 August 2006. The appellant did not appear before the Tribunal on that date. On that date, the Tribunal wrote to the appellant advising him of particulars of information that it considered would be the reason, or part of the reason, for deciding that the appellant was not entitled to a protection visa. It appears that the letter was written by the Tribunal to comply with its obligation in s 424A of the Migration Act 1958 (Cth) ("Act"). The particulars given by the Tribunal related to two items of information. They were as follows: (1) The first item of information was evidence the appellant gave to the Department in his primary application form to the effect that he had been shot at by two men on 11 July 2003 while travelling in a car. The Tribunal pointed out that this information was relevant because in his evidence at the hearing before the second Tribunal he had claimed that he was attacked, not shot at, by three men. The Tribunal referred to medical certificates the appellant had produced for 11 July 2003, 2 August 2003 and 21 August 2003, respectively, none of which were consistent with the first appellant having been shot at. The Tribunal said that it "may find that it has reason to doubt that the shooting ever occurred, let alone on these three dates". (2) The second item of information was that all three medical certificates were, apparently, written on the same day and some months after the appellant applied for a protection visa. It was said that they were not submitted to the first Tribunal and, in fact, they did not exist when the appellant lodged his first application for review. The Tribunal pointed out that the information was relevant because it may give the Tribunal "reason to doubt that these documents attest to actual injuries and, therefore, [the Tribunal] may have reason to doubt that any of these attacks occurred at all". 5 On 4 September 2006 the appellant provided a response to the Tribunal's letter and he provided some information shortly after that date. 6 On 28 September 2006 the Tribunal handed down its decision. It affirmed the decision of the delegate. It is necessary to refer to the Tribunal's reasons in so far as they bear, or might bear, on the two matters which were the subject of the Tribunal's s 424A letter. Both matters were addressed in the Tribunal's reasons in one paragraph under the heading "Findings and Reasons". The Tribunal said: The Applicant husband's position is that the medical evidence, albeit flawed, attests to actual instances of serious and repeated, if not systematic, politically-motivated harassment. However, in his 4 September 2006 letter to the Tribunal, the Applicant husband himself invites overwhelming doubt on the reliability of those certificates, offering to have more made, and the Tribunal finds that it cannot place any weight on the "medical" evidence before it. What remains is a confused and inconsistent account of attacks on the Applicant husband and his family presented in the same application as a number of erroneous facts about the MQM Haqiqi group. A little later, the Tribunal identified the immediate significance of these conclusions in the following passage: The Tribunal has taken into account various claims about illness, stress and depression at various stages of the present protection visa application. The Tribunal is not satisfied that these issues have any significance in accounting for lack of detail or for inconsistencies in evidence in the present case. 7 As I have said, this appeal lies from orders made by a Federal Magistrate. In his application in the Federal Magistrates Court, the appellant raised two grounds. First, he alleged that the Tribunal had failed to comply with s 424A of the Act and, secondly, he alleged that it had failed to comply with s 425 of the Act. On the appeal to this Court, the appellant complains of the decision of the Federal Magistrates Court in relation to only one of those grounds. The ground of appeal in the appeal to this Court is as follows: His Honour erred in failing to find the second respondent had an obligation of further invite [sic] the appellant to a hearing pursuant to section 425 of the Act after sending the purported section 424A letter. 8 The Federal Magistrate rejected the allegation that the Tribunal had failed to comply with s 425 of the Act and he said that the appellant had been given an invitation to appear before the Tribunal and furthermore, had attended a hearing before the second Tribunal where he gave evidence and presented arguments. The Federal Magistrate said: The obligations under s 425 have been the subject of considerable discussion in the courts and any further extension of the type sought by the applicant would seem to me to be stretching the interpretation too far.