MZXPI v Minister for Immigration and Citizenship [2008] FCA 635

FEDERAL COURT OF AUSTRALIA

MZXPI v Minister for Immigration and Citizenship [2008] FCA 635

MIGRATION – Refugee Review Tribunal – judicial review – protection visa application – applicant requesting more time at tribunal hearing to obtain evidence – tribunal required to provide reasonable time – failure to do so later corrected

MZXPI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

VID 794 of 2007

FINKELSTEIN J

9 may 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 794 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZXPI

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

and REFUGEE REVIEW TRIBUNAL

Respondents

JUDGE: FINKELSTEIN J

DATE OF ORDER: 9 MAY 2008

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application by the appellant to vacate the orders made on 16 November 2007 be dismissed. 2. The appellant pay the respondents' costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 794 of 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MZXPI

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

and REFUGEE REVIEW TRIBUNAL

Respondents

JUDGE: FINKELSTEIN J

DATE: 9 MAY 2008

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The appellant unsuccessfully applied to the Federal Magistrates Court for review of the Refugee Review Tribunal's decision that he was not a Convention refugee. He then appealed to the Federal Court to have set aside the decision of the magistrate. That appeal was heard by me on 16 November 2007. I dismissed the appeal but directed that the order not be entered for one month to enable the appellant to get legal advice and, if appropriate, to apply to vacate the dismissal order for the purpose of having the appeal reheard. That application was made by the appellant, who is now represented by counsel. 2 To understand what has taken place, I need to recount, albeit briefly, some of the background. The appellant is from India. He claims to have a well founded fear of persecution if required to return to India on account of his political activities. His claim is that he joined the MDMK in 2000. The MDMK is a breakaway party of the DMK. The appellant's family have been supporters of the DMK since the early 1990s. The DMK came into power in 1996. The appellant's claim is that he fears persecution at the hands of the DMK as well as from extremist organisations. 3 The appellant gave evidence at a hearing before the tribunal on 6 December 2006. His evidence dealt with his claimed membership of the MDMK. He was asked a number of questions about his membership. The appellant also gave evidence that he had been a member of another organisation, Tauhid Jamaad, a Muslim society of sorts. The tribunal member also questioned the appellant about his membership of that organisation. During the course of those questions the tribunal member said, "I haven't seen very much reported about Tauhid Jamaad, which surprises me". He asked the appellant whether the organisation had "membership cards or anything like that". The appellant replied that he had a membership card "back home, but I haven't got it with me, I could send for it if it's required". The tribunal member informed the appellant that it was up to him what information he wished to submit in support of his application. The appellant said that he would happily provide additional information "if you have doubts in any area, then you will allow me to bring evidence, I'll try and get it". 4 There was then an exchange concerning the time within which the appellant should produce the additional information. The tribunal member said he would be "happy to wait two weeks for any further information". The appellant said "Two weeks is not enough". The appellant went on to say "it would be easier for me if I was granted a month or so. Because parents are not at home, it's only the younger people who are at home now, I don't think they're capable of getting the right materials, searching. My father has more experience." The tribunal member repeated that he would allow only "a two week period if there's anything that you think would assist your case that you want to submit". Again the appellant asked for one month. The tribunal member responded: "No, I'll give you – as I've said, I'll give you a two week period". Yet again the appellant asked to be given one month within which to get the information. The tribunal member denied this request saying "I've made it very clear to you that what I'm giving you, I think, is a reasonable period to provide any information after the hearing." 5 I have no doubt that the tribunal acted unreasonably in refusing to allow the appellant four weeks within which to get the documentary evidence which, after all, had to come from India. If the information was accessible, for example, if it were in Australia, then a two week period would have been more than adequate. But the same is not true where the documents are in another country and some searching is required to locate them. I can think of no reason why the tribunal should have refused the appellant's request. It was a very reasonable request and if it had been allowed it would not cause any delay in the tribunal's deliberative process. For these reasons I am convinced the tribunal's refusal to allow the appellant four weeks within which to get his hands on the documents was so unreasonable as to amount to a denial of procedural fairness. 6 That, however, is not the end of the matter. Some five days after the hearing, the tribunal wrote to the appellant informing him that the tribunal had information that might, subject to any comments the appellant might make, be reason for deciding that he was not entitled to a protection visa. What the tribunal had in mind was then set out under various topic headings. Two are relevant. The first heading was "Inconsistencies". The letter stated: There are a number of inconsistencies in the evidence you have provided. You have given inconsistent evidence as to when you joined Tauhid Jamaad. In your written statement of 20 June 2006, you stated that you joined in 2000. At the Tribunal hearing of 6 December [2006], you suggested initially that you joined in 2004 and then that it might have been 2002 or 2001. You also said that you might have been a member for 3 or 4 years. That you could not provide clear and consistent evidence about when you joined Tauhid Jamaad leads the Tribunal to doubt that you ever became a member of the organisation. 7 The other heading was "Knowledge of Political Matters". In that connection the letter stated: "The information you gave in relation to a number of matters relating to Tamil Nadu politics suggested that you might not have been involved with the MDMK in the way that you have claimed". The letter then referred to evidence and other information provided by the appellant that was relevant to his credibility on his claim concerning his involvement with MDMK. 8 Toward the end of the letter the following appeared: You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 3 January 2007. IF YOU DO NOT GIVE COMMENTS BY 3 JANUARY 2007 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE. 9 While the tribunal was in error in refusing the appellant time within which to provide details of his membership of Tauhid Jamaad that error was cured by the letter of 11 December 2006. I say the error was cured because, in my view, the letter invited the appellant to provide the tribunal with information of a kind and character that would include the membership card he had earlier said he wished to produce relating to his membership of Tauhid Jamaad. He also had the opportunity to provide evidence of his membership of MDMK. 10 In the event, the appellant did not take up the invitation. That is, he failed to provide any information to the tribunal regarding his membership of either organisation. 11 In the result therefore the tribunal, albeit belatedly, did provide the appellant with an opportunity to provide the information he had wanted to submit. That the appellant failed to take advantage of that opportunity is not the fault of the tribunal. Accordingly, the tribunal has not fallen into any error. 12 For these reasons, I decline to vacate the order made on 16 November 2007. The respondents should have their costs of this application. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.