Case: SZMTJ v Minister for Immigration and Citizenship [2009] FMCA 18
Outcome: affirmed
application for review was filed with the Federal Magistrates Court of Australia in September 2008 and an amended application was filed in November 2008. The Federal Magistrates Court dismissed the application: SZMTJ v Minister for Immigration and Citizenship [2009] FMCA 18. In so doing, the Federal Magistrate rejected an allegation of bias on the part of the Tribunal. The Federal Magistrate, however, further concluded that there had been a breach of s 91R of the Migration Act but declined relief in the exercise of his discretion. A Notice of Appeal was filed in this Court on 12 February 2009. Before the Federal Magistrate, Counsel for the Respondent Minister " submitted that, whilst the Tribunal found that there had been some conduct in Australia, it was entitled to have regard to that conduct in the manner in which it did, having proper regard to the principles that govern s. 91R (3) ": [2009] FMCA 18 at [45] . The Federal Magistrate went on to summarise the submissions then advanced as follows: [46] Specifically, s. 91R(3) did not require the Tribunal to disregard the applicant's participation in religious activities in Australia because it implicitly (emphasis added) found that the applicant's purpose in attending church was for a purpose other than strengthening his protection visa claims, and it explicitly (again, emphasis added) found an alternate explanation for the applicant's attending church, namely companionship. [47] Similarly, the applicant's lodgement of an earlier application for a protection visa was not conduct that could be said to enhance the applicant's claims for a protection visa and therefore it was not required by s. 91R (3) to be disregarded. [48] Again, the fact that the applicant had obtained a travel document did not need to be disregarded by s. 91R(3). It did not enhance the applicant's claims for refugee status. If anything, this conduct detracted from the applicant's claims for a protection visa. [49] Consequently, counsel for the Minister submitted that there was no jurisdictional error constituted by a breach of s. 91R(3) of the Migration Act , or at all. The Federal Magistrate then went on to resolve submissions directed to other factual matters said to also involve a contravention of s 91R and concluded in respect to the 1999 application and the request for Ministerial intervention in 2000 as follows: [62] This conduct can not, to my mind, be characterised as conduct that could not be understood as an attempt to enhance the applicant's claim to be a refugee. He certainly practised deception, but the motive appears to be an attempt to enhance his claim for a protection visa. Accordingly, the Tribunal was required to disregard it under the provisions of s. 91R(3). The Federal Magistrate thereafter went on to decline relief in the exercise of his discretion, reasoning as follows: [67] What remains to be considered, therefore, is whether the Tribunal's failure to disregard the applicant's conduct in applying for a protection visa in a false name and also applying for the exercise of the Minister's discretion in that same false name is a failure to comply with s. 91R(3) and therefore a jurisdictional error. [68] In my view, the Tribunal failed to comply with s. 91R(3) in this instance and therefore fell into jurisdictional error. [69] However, I am not satisfied that the Court should grant to the applicant the relief that he seeks. The balance of the evidence before the Tribunal is of such weight that the Tribunal's adverse credibility finding against the applicant can stand even if the evidence of the earlier application for a protection visa and the exercise of the Minister's discretion were to be disregarded. It is not in the interests of the administration of justice for the applicant to be granted relief by way of certiorari and mandamus because of a mere technicality. It was this exercise of discretion which was the occasion for the Order 80 r 4 referral. Section 91R(3) provides as follows: For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.