AEK15 v Minister for Immigration and Border Protection
[2016] FCCA 1060
•13 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AEK15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1060 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – whether the reconstitution of the Tribunal under s.422 Migration Act 1958 (Cth) and the failure to invite the applicant to another hearing amounted to jurisdictional error – question as to the authority the Court is bound by – whether earlier binding decision impliedly overruled - whether the Tribunal failed to exercise its discretion – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.422, 424, 425, 426A Federal Circuit Court Rules 2001 (Cth), r.12.02 |
| Cases cited: SXXB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 537 SZHKA v Minister for Immigration & Citizenship (2008) 172 FCR 1; [2008] FCAFC 138 Articles and other material cited: Alastair I MacAdam and John Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (Butterworths, 1998) 89-92 |
| Applicant: | AEK15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 687 of 2015 |
| Judgment of: | Judge Smith |
| Hearing dates: | 25 November 2015 & 15 March 2016 |
| Date of Last Submission: | 15 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 13 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. O’Donnell |
| Counsel for the First Respondent: | Mr J.P. Knackstredt |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 687 of 2015
| AEK15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh who arrived in Australia on 17 June 2012. On 30 July 2012 he applied for a protection visa on the basis of a claim that he was an active member of the local Hindu community and had been targeted by Muslim fundamentalists as a result of his activities.
On 28 March 2013 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Refugee Review Tribunal[1] for review of that decision. The applicant was represented by a registered migration agent for the purposes of the review.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
On 7 March 2014 the Tribunal invited the applicant to attend a hearing to give evidence and to present argument in relation to the issues arising on the review. The applicant attended that hearing.
Seven months after the hearing, on 1 October 2014, the Tribunal wrote to the applicant in the following terms:
…
I am writing to inform you that Tribunal Member Foster is no longer available to review your case. A different Tribunal Member, Member Rozdilsky, will finish the review.
All documents and other material that were previously considered by Member Foster have been given to Member Rozdilsky. This material includes the Department of Immigration and Border Protection file; recordings of any Tribunal hearings; and any submissions or other evidence provided to the Tribunal. The Tribunal will write to you if Member Rozdilsky requires any further information.
…
The applicant did not reply to that letter. The Tribunal, constituted by Member Rozdilsky, did not invite the applicant to attend a further hearing and made a decision on 25 February 2015 affirming the decision of the delegate to refuse to grant the applicant a protection visa.
In its statement of reasons the Tribunal summarised what had occurred at the hearing without any indication that the member responsible for the ultimate decision had not in fact been at that hearing. However, those reasons make clear that the Tribunal, as constituted at the time of decision, had at least listened to a recording of that hearing.
The reasons for the Tribunal’s decision included findings based upon the evidence given by the applicant at the hearing. For instance, the Tribunal noted, when explaining the reasons for its serious concerns regarding the credibility of elements of the applicant’s claims, that when the applicant was asked to explain an inconsistency in his evidence at hearing, he “provided a muddled and evasive response as to when he learned” of a particular matter: see [43] of the Tribunal’s reasons. Unsurprisingly, the Tribunal did not make any reference, either positive or negative, about the applicant’s demeanour while giving evidence.
Consideration
The applicant now seeks judicial review of the Tribunal’s decision. The applicant was initially unrepresented. The grounds in the application were not helpful in ascertaining whether the Tribunal’s decision was affected by jurisdictional error. At the hearing of the matter I raised with counsel for the Minister the possibility that an issue might arise out of the fact that the Tribunal, at the time of the decision, was constituted by a different person than the person who had conducted the hearing. In light of that possibility, the hearing was adjourned and the matter was referred under r.12.02 of the Federal Circuit Court Rules 2001 (Cth) for legal assistance. Mr O’Donnell of counsel agreed to accept that referral. The Court is grateful to him for having done so.
When the hearing was resumed the applicant was given leave to rely on an amended application raising the following grounds:
i)The Tribunal fell into jurisdictional error by failing to invite the Applicant to a further hearing under s 425 of the Migration Act 1958 (Cth) after the Tribunal had been reconstituted under s 422 of the Act.
ii)In the alternative Tribunal (sic) fell into jurisdictional error by exercising its discretion to not invite the Applicant to a new hearing before the reconstituted Tribunal in a manner that was so unreasonable that no reasonable Tribunal could have made it.
Ground one
In his submissions the applicant pointed to what was said to be an inconsistency between authorities binding on this Court. First, the decision of the Full Federal Court in Liu v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 541; [2001] FCA 1362 (“Liu”) held that where one Tribunal member has conducted a hearing with respect to an applicant but, before making its decision, the Tribunal is reconstituted by another member under s.422, the new member is not obliged to convene a further hearing but may instead rely on the record of the hearing before the previous member: see also SXXB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 537 (Mansfield J).
Secondly, more recently, a differently constituted Full Federal Court held that where judicial review has been granted with respect to a Tribunal decision and, on remittal, the matter is heard by a different member, the Tribunal is required by s.425 of the Act to invite the applicant to a new hearing: SZHKA v Minister for Immigration & Citizenship (2008) 172 FCR 1; [2008] FCAFC 138 (“SZHKA”).
The applicant accepted that the facts in this case fell within those analysed in Liu and that, applying the doctrine of precedent to the decisions on their face, this Court is governed by Liu despite it having been heavily criticised in SZHKA. However, he also argued that Liu was wrongly decided and, in the alternative, that it was logically inconsistent with the reasoning in SZHKA and so was implicitly overruled by that case.
Clearly enough, it is not the concern of this Court to determine whether or not the judgment given by a higher court in the same hierarchy was or was not wrongly decided. It is this Court’s duty simply to follow that judgment insofar as it is not distinguishable. Nevertheless, it is possible, as argued by the applicant for an earlier decision of a higher court to be impliedly overruled by a later decision of that court: Ratcliffe v Watters (1969) 89 WN (NSW) Part 1 497 at 505; MacAdam and Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia, Butterworths, 1998 at pp.89-92. In determining whether there has been an implied overruling of an earlier decision, it is necessary for a lower court to bear in mind the following note of caution expressed by Barwick CJ in Jacob v Utah Construction & Engineering Ltd (1966) 116 CLR 200 at 207:
… It is not, in my opinion, for a Supreme Court of a State to decide that a decision of this Court precisely in point ought now to be decided differently because it appears to the Supreme Court to be inconsistent with reasoning of the Judicial Committee in a subsequent case. …
It is true, as submitted by the applicant, that the decision in Liu was the subject of some criticism by two of the judges in SZHKA 172 FCR 1: see, in particular, at 9 [20] – [21] (Gray J) and 11 – 13 [29] – [34] (Gyles J). In addition to the matters referred to by their Honours, decisions such as Minister for Immigration & Border Protection v WZARH (2015) 90 ALJR 25; [2015] HCA 40 might have an impact upon the correctness of Liu. However, SZHKA did not overrule the earlier decision in Liu, by implication or otherwise. Critically, Gyles J said, referring to the decision in Liu, at [29]:
… That case is not directly in point as it related to the situation covered by s 422. Thus, there is no occasion to consider the correctness of it. …
Justice Gray agreed with what was said by Gyles J in his reasons for judgment: [34].
For that reason, I am bound to and do follow the decision of the Federal Court in Liu and so must reject the first ground.
Ground two
The second ground must fail for the following reasons.
The applicant’s argument is based upon the proposition that the Tribunal has a discretion to convene a second or further hearing and that that discretion is at least implicit in the words of sub-s.426A(2) of the Act. However, as the Minister submitted, that provision only applies if an applicant is invited under s.425 to appear before the Tribunal but does not appear before the tribunal on the day on which, or at the time and place at which the applicant is scheduled to appear: sub-s.426A(1).
That said, I accept for present purposes that the Tribunal may have the power to invite the applicant to a further hearing. First, as the decision in Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 discloses, the obligation under s.425 of the Act does not cease simply because an applicant has attended the hearing to which he or she has been invited. The right provided by that obligation is to have a real and meaningful opportunity to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. There are many reasons why a single hearing might not suffice to fulfil that right. So long as the duty subsists there is the power to hold a hearing.
Secondly, the Tribunal has the power under s.424 of the Act to get any information that it considers relevant including orally or in writing.
The difficulty for the applicant in this case is there is nothing to suggest that the Tribunal considered that the obligation under s.425 had not been fulfilled or that it wished to obtain further information. Indeed, its reasons suggest the contrary.
It is important in this case that the applicant was notified of the reconstitution of the Tribunal, told that the Tribunal would write to him if the new member required any further information, and yet did not reply to the notification. In light of that, it was not unreasonable in the sense discussed in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 for the Tribunal to fail to exercise any power it did have to hold a further hearing.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 13 May 2016
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