BWL16 v Minister for Immigration
[2017] FCCA 3
•1 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BWL16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – principal applicant claiming political persecution in Peru – change of government after the Tribunal hearing taken into account in the Tribunal decision – whether the Tribunal should have invited comment on the change of government considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.357A, 420, 422B, 424, 424A, 424AA, 425 |
| Cases cited: ACC15 v Minister for Immigration [2016] FCA 97 Applicant A125 of 2003 v Minister for Immigration (2007) 163 FCR 285 BEV15 v Minister for Immigration [2016] FCA 507 SZTXE v Minister for Immigration [2015] FCA 493 |
| First Applicant: | BWL16 |
| Second Applicant: | BWM16 |
| Third Applicant: | BWN16 |
| Fourth Applicant: | BWO16 |
| Fifth Applicant: | BWP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1908 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 7 December 2016 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms E Grotte |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
The application as amended on 28 November 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1908 of 2016
| BWL16 |
First Applicant
| BWM16 |
Second Applicant
| BWN16 |
Third Applicant
| BWO16 |
Fourth Applicant
| BWP16 |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants are citizens of Peru. The first applicant (applicant) is the wife of the second applicant and the mother of the third, fourth and fifth applicants. The applicant claims to be at risk of harm from a former President of Peru or his supporters. The fear arises because of her claimed knowledge of human rights abuses under the rule of the former President. On 20 June 2016 the Administrative Appeals Tribunal (Tribunal) affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. The applicants now seek judicial review of that decision. The issues in this case arise because of a change of government in Peru between the date of the Tribunal hearing and the Tribunal decision. The essential question for resolution is whether the Tribunal erred in drawing conclusions from that change of government without inviting comment from the applicant. For the reasons which follow, it was not a jurisdictional error for the Tribunal to fail to invite comment.
The following statement of background facts is derived from the submissions of the Minister filed on 5 December 2016.
On 26 February 2014, the applicant made an application for a protection visa[1]. In support of her application, the applicant provided a statement to the Minister’s Department in which she set out her claims for protection[2]. In short, the applicant claimed that she assisted a politician, Torres Caro, in an election campaign in 2005, and during that time learned of crimes against humanity that had been committed in the 1990s by Ollanta Humala, a former officer in the Peruvian Army and the President of Peru from 2011-2016. She claimed that she and members of her family were threatened and intimidated. The applicant further claimed that, if she were to return to Peru, she and members of her family would be harmed by criminals in the service of Mr Humala and his political organisation.
[1] Court Book (CB) 1-178
[2] CB 12-14
On 17 October 2014, the applicant’s then representative provided to the Minister’s Department some further evidence and submissions in support of her case[3].
[3] CB 204-226
On 27 October 2014, the delegate made a decision to refuse to grant a protection visa to the applicant[4]. The delegate found that the applicant “was not in fear for her safety during at any time”, that “she applied for protection when it suited her to do for reasons unrelated to a fear of harm”[5], and her claims had been “fabricated to provide support for her protection visa claim”[6].
[4] CB 239-252
[5] CB 247
[6] CB 248
Merits review
On 13 November 2014, the applicant applied to the Tribunal for review of the delegate’s decision[7].
[7] CB 253-255
On 11 February 2016, the applicant’s representative provided to the Tribunal submissions and evidence in support of her application for review[8]. That material included a statement from the applicant[9].
[8] CB 273-315
[9] CB 286-290
On 18 February 2016, the applicant appeared before the Tribunal to give evidence and present arguments in relation to the issues arising on the review[10]. At the hearing, she gave to the Tribunal some further material in support of her application[11].
[10] CB 322-325
[11] CB 326-363
On 20 June 2016, the Tribunal affirmed the delegate’s decision[12].
[12] CB 374-391
The Tribunal accepted some aspects of the applicant’s claims, but had “some difficulties accepting the plausibility of others of her claims”[13].
[13] CB 385 [45]
The Tribunal accepted that the applicant had participated in Mr Caro’s election campaign in 2005 and that, in the course of campaigning, she heard stories about Mr Humala that were adverse to him and was told to disregard this information when she attempted to tell Mr Caro[14]. The Tribunal also accepted the claim that, subsequently, Mr Caro fell out of favour with Mr Humala’s political party[15].
[14] CB 385 [46]
[15] CB 385 [46]
The Tribunal did not, however, accept the claims that Mr Caro was involved in the appearance of media reports about human rights violations in the 1990s involving Mr Humala, or that he exposed, or implicated, the applicant in some way as a source of information about such allegations[16]. The Tribunal observed that the applicant “provided no other evidence to support her claims about this”, that “she confirmed it was only a suspicion on her part”, that “the information she learned about the alleged human rights violations were told to her orally”, that she “did not record the accounts in writing, or on film or in any other manner”, that her source “was not a direct victim of any human rights violation”, and that one of the victims “spoke directly to the media but subsequently retracted his account”[17].
[16] CB 385 [46]
[17] CB 385-386 [46]
Notwithstanding these adverse findings, the Tribunal went on to say that, even if it were to give to the applicant “the benefit of its considerable doubt about whether Mr Caro specifically named the applicant as a source of this information in the context of his political fallout with Mr Humala in 2006”, it did not accept that that would result in her facing a real chance of persecution[18]. The Tribunal gave five reasons for reaching this conclusion. First, the applicant was “never a direct source of testimony, having only heard indirect accounts, including from the sister of an alleged victim, who has since retracted his claims”[19]. Secondly, Mr Humala “has since had charges relating to [the Madre Mia] matter laid against him in 2006 … dropped”[20]. Thirdly, a considerable period of time has passed since the events in question[21]. Fourthly, the applicant took five years to apply for a protection visa[22]. Fifthly, Mr Humala’s term as President ended in 2016, thereby “suggest[ing] even less reason for interest in the applicant for information she heard back in 2005”[23].
[18] CB 386 [46]
[19] CB 386 [47]
[20] CB 386 [47]
[21] CB 386 [47]-[48]
[22] CB 386 [49]
[23] CB 386 [50]
The Tribunal then considered the applicant’s claim that Mr Humala’s involvement in the Madre Mia matter may be re-opened, but found that the chance of this occurring was, at best, remote[24].
[24] CB 386-387 [51]
The Tribunal further rejected the applicant’s claim to fear harm due to the general lack of security in Peru and control over the Rondas Campesinas paramilitary organisation[25].
[25] CB 387 [52]
The Tribunal was not satisfied that there was a real chance that the applicant would face serious harm at the hands of Mr Humala, or anybody acting on his behalf, on account of the information that she said she obtained while campaigning for Mr Caro in 2005[26].
[26] CB 387 [53]
Finally, the Tribunal rejected the applicant’s claims for complementary protection[27].
[27] CB 387-388 [55]-[58]
The present proceedings
These proceedings began with a show cause application filed on 20 July 2016. The applicants now rely upon an amended application filed on 28 November 2016. There are two grounds in that application:
1. The Tribunal erred in failing to provide the applicant with a fair hearing as required by section 422B(3) of the Act.
Particulars
a. The hearing was held on 18 February 2016;
b. The Tribunal found as follows:
50. Finally, the Tribunal takes into consideration independent information referred to above that, while Humala has been President of Peru since 2011, he is soon be replaced by the new President – elect, Pedro Pablo Kuczynski;
c. This finding is based on independent information in footnote 9 dated 10 June 2016 which post dates the hearing on 18 February 2016; and
d. The Tribunal has failed to put the finding to the applicant for comment and has failed to provide the applicant with a fair hearing.
2. The Tribunal erred in failing to provide the applicant with procedural fairness as required by section 425 of the Act, namely the Tribunal failed to provide information to the applicant for comment or a response which then formed part of the reason for affirming the decision under review to refuse the protection visa.
Particulars
a. The hearing was held on 18 February 2016;
b. The Tribunal found as follows:
50. Finally, the Tribunal takes into consideration independent information referred to above that, while Humala has been President of Peru since 2011, he is soon be replaced by the new President – elect, Pedro Pablo Kuczynski;
c. This finding is based on independent information in footnote 9 dated 10 June 2016 which post dates the hearing on 18 February 2016; and
d. The Tribunal has failed to put the finding to the applicant for comment and has failed to provide the applicant with a fair hearing.
In addition to the court book filed on 24 October 2016, I have before me as evidence the affidavit of Michaela Byers made on 18 November 2016, to which is attached a transcript of the Tribunal hearing held on 18 February 2016.
Both the applicant and the Minister, through their counsel, prepared pre-trial written submissions and also made oral submissions at the trial of the matter on 7 December 2016. I have been assisted by those submissions.
Consideration
The applicants’ contentions
The applicant submits that the Tribunal’s decision dated 20 June 2016 is affected by jurisdictional error for the following reasons:
a)the decision did not comply with the requirement that the decision be fair and just as set out in s.422B(3) of the Migration Act 1958 (Cth) (Migration Act); and
b)the Tribunal breached the requirements of natural justice/procedural fairness as required by s.422B(3) and s.425 of the Migration Act by failing to disclose information to the applicant: information that constituted part of the reason for affirming the decision under review and by failing to offer the applicant an opportunity to comment on the information or provide a response to the information.
The applicant submits that the obligation on the decision-maker is to advise the person affected by the decision of any adverse conclusion which had been arrived at which would not obviously be open on the known material.
The asserted errors set out in [21(a)] and [21(b)] are to be found at [50][28].
[28] CB 386
At [50] of its decision the Tribunal said:
Finally, the Tribunal takes into consideration independent information referred to above that while Humala has been President of Peru since 2011, he is soon [to] be replaced by the new President-elect, Pedro Pablo Kuczynski (see paragraphs 37-38). The applicant told the Tribunal that she was concerned, given that Humala was President, that they would continue to be angry with her for leaving the party. The impending expiration of Humala’s reign as President (given he is constitutionally prohibited from running for consecutive terms) suggests even less reason for interest in the applicant for information she heard back in 2006.
The applicant submits that the Tribunal relied on information that post-dated the Tribunal hearing and was not available to the applicant or which could not be inferred from known material, which was not put to the applicant either for comment or a response, and that this information formed part of the reason for the decision to affirm the decision not to grant the applicant a protection visa. The information was obtained from a report about the outcome of the elections[29], which were held in April 2016. These elections post-dated the Tribunal hearing, which was held on 18 February 2016.
[29] CB 384 [40]
It is clear that the information formed part of the reason that the decision was affirmed because it is listed as the final reason, out of a list of reasons, on which the decision was based to not accept the applicant faced a real risk of serious or significant harm in the reasonably foreseeable future[30].
[30] CB 386 [46]
During the course of the hearing the Tribunal discussed its reservations with the applicant regarding the question of whether the subjective fear she held was “well-founded”. At page 23 of the transcript[31], the Tribunal suggested that the applicant’s fear could not be well-founded because Mr Humala was President and leading a very different party from the one that had been involved in human rights abuses in 2005. From that discussion the applicant could have inferred that that was a reason on which the Tribunal would have based its decision.
[31] line 763 to line 778
However, when the Tribunal made its decision, four months had passed and the elections had taken place. There was new information and circumstances had changed significantly. One of the bases of the decision had changed to being that because Mr Humala was no longer President, it was unlikely that the case against him would be re-opened.
The applicant submits however, that there was now a new President-elect who may have very different views about the human rights abuses that had taken place in Madre Mia and may well decide to investigate and charge those responsible for the human rights abuses allegedly committed by a former President.
The applicant submits that this information ought to have been put to her for comment. It is said to be significant and to require a response or comment from her in the proper consideration of her claims.
The asserted denial of procedural fairness, was compounded by the conclusions made by the Tribunal at [51][32], that the chances of the re-opening of the case against Mr Humala are largely speculative and remote. This conclusion does not appear to be based on any substantial evidence, but is speculative and is based on an unsubstantiated assumption. This is something the applicant ought to have been given an opportunity to comment upon.
[32] CB 386-387
The Minister’s contentions
The Minister contends that the Tribunal did not fail to comply with s.422B(3) and s.425(1) for six reasons.
First, the Tribunal’s finding in the final sentence at [50][33] was not dispositive[34]. (What is said by the applicant to be a finding in the first sentence is not a finding of fact at all; it is a summary of the country information referred to at [39]-[40][35].) It comprised a separate and independent basis for the Tribunal’s decision to affirm the decision under review[36]. So much is apparent from the final sentence at [46][37]. The primary basis for the Tribunal’s decision was its rejection, at [46][38], of the applicant’s claim that the applicant was named, or otherwise implicated, by Mr Caro as a source of the adverse information concerning Mr Humala. That this claim was rejected is clear from the Tribunal’s statement, in the final sentence at [45][39], that it had “some difficulties accepting the plausibility” of some of the applicant’s claims. In other words, the Tribunal considered to be implausible the claim described earlier in that paragraph. That aspect of the Tribunal’s reasoning is not being challenged in these proceedings.
[33] CB 386
[34] Cf SZBEL v Minister for Immigration (2006) 228 CLR 152 at 162 [33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ
[35] CB 384
[36] Cf VBAP of 2002 v Minister for Immigration [2005] FCA 965
[37] CB 386
[38] CB 385-386
[39] CB 385
Secondly, the relevant “issue”, for the purposes of s.425(1), was not whether Mr Humala was the President of Peru; it was whether the Peruvian authorities or paramilitary groups had any ongoing interest in the applicant for her becoming aware, in 2005, of information adverse to Mr Humala dating back to conduct in which he allegedly engaged in the 1990s. The country information to which the Tribunal referred at [39]-[40][40], which relevantly made the point that Mr Humala was legally prohibited from running for re-election in 2016 (and would not, therefore, be the President of Peru if the applicant were to return to that country) and that another politician won the election, did not give rise to a new issue. At best for the applicant, it gave rise to what Heydon J in Minister for Immigration v SZIAI[41] described as a sub-issue.
[40] CB 384
[41] (2009) 83 ALJR 1123 at 1133 [55]
Thirdly, even if the country information described above gave rise to a new “issue” for the purposes of s.425(1), the applicant can be taken reasonably to be aware of its substance. That is because, on 11 February 2016, the applicant’s then representative sent to the Tribunal various newspaper articles in support of her application, one of which was dated 10 April 2012 and provided that “Humala’s term ends in 2016”[42].
[42] CB 310
Further, during the hearing, the applicant gave evidence that there was then a presidential election campaign on foot in Peru and that there were 10 presidential candidates, from which it could be deduced that she was aware that Mr Humala was not one such candidate[43]. That view is supported by the applicant’s evidence as to what she thought would happen to her “after [Mr Humala] finishes his Presidency”[44].
[43] affidavit of Michaela Byers affirmed on 18 November 2016, Annexure A (transcript), lines 530-532
[44] transcript, line 787
Fourthly, the contents of the newspaper article referred to in footnote 9 of the Tribunal’s reasons for decision[45] or at least that part of the article referred to in the first sentence at [50][46], which the applicant contends in the particulars to Grounds 1 and 2 should have been drawn to her attention under s.425(1), came within the exception in s.424A(3)(a) to the Tribunal’s obligation to give clear particulars of information which it considers to be the reason, or a part of the reason, for affirming the delegate’s decision. The article in question, published in the Peru Reports on 10 June 2016 and entitled, “Pedro Pablo Kuczynski wins Peru’s presidential election”, reported on the result of the election and aspects of the election campaign. Mr Humala was referred to only once in that article in the second sentence in the third paragraph, which read, “It was also the second consecutive defeat for Keiko Fujimori, who lost to President Ollanta Humala in 2011.” The information contained in the article, therefore, was not specifically about the applicant or another person. In so far as it referred to particular politicians, it did so only tangentially in the course of summarising the result of the election[47].
[45] CB 384 [40]
[46] CB 386
[47] Cf MZZET v Minister for Immigration (2014) 143 ALD 334 at [19] per Middleton J. See also Minister for Immigration v SZHXF (2008) 166 FCR 298 at 304 [22] per Tamberlin, Gyles and Stone JJ
Fifthly, the information in the article coming within the scope of s.424A(3)(a), the Tribunal was not required to draw to the applicant’s attention, under s.425(1), the fact that Mr Humala “[wa]s soon [to] be replaced by the new President-elect, Pedro Pablo Kuczynski”. For the Tribunal to do so would result in disclosure of particulars of the information referred to in the preceding paragraph—that is, compliance with the obligation in s.424A(1)(a), from which the Tribunal is excused by reason of subparagraph (3)(a). As the High Court said in Plaintiff M61/2010E v Commonwealth[48], “country information is treated as a class of information which need not be drawn to the attention of applicants for review by the … Tribunal.” Disclosure of this information by adopting an issue identification process under s.425(1) would result in the purpose of s.424A(3)(a) being undermined and it having no work to do.
[48] (2010) 243 CLR 319 at 357 [91]
The Minister contends that, in the circumstances of the present case, therefore, s.425(1) needs to be read down so as not to render s.424A(3)(a) superfluous or to result in the requirements of s.424A(1)(a) being imported into s.425(1). The Minister’s construction of these provisions is said to give “internal logical consistency and overall consistency”[49], thereby resulting in the “harmonious interpretation of ss.424A and 425, and avoids surplusage”[50]. It is also said to avoid offending the principle in Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia[51]. Subsection 424A(1)(a) prescribes the way in which particulars of certain kinds of adverse information are to be disclosed to a review applicant. The Minister submits that it operates to exclude s.425(1) being utilised for the same purpose, particularly where the Tribunal is excused from performing the former obligation (relevantly, by reason of paragraph (3)(a)).
[49] Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 at 22 [35] per French CJ, Hayne, Kiefel and Nettle JJ, citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[70] per McHugh, Gummow, Kirby and Hayne JJ
[50] Commonwealth v Baume (1905) 2 CLR 405 at 414 per Griffith CJ. See, more recently, Saeed v Minister for Immigration (2010) 241 CLR 252 at 266 [39] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ
[51] (1932) 47 CLR 1 at 7 per Gavan Duffy CJ and Dixon J
Further, the Minister submits that, in the event that the information referred to in footnote 9 in the Tribunal’s reasons (and in the first sentence in [50]) were held not to come within the ambit of s.424A(3)(a), it is, in substance, the same as that which was given by the applicant to the Tribunal as described at [35]-[36] above, with the result that s.424A(3)(b) is enlivened. The submissions made at [37]-[39] are said to apply equally to the interaction between ss.424A(3)(b) and 425(1).
Sixthly, the Minister submits that s.422B(3) is merely an exhortative provision which does not impose a further substantive procedural obligation upon the Tribunal[52].
[52] See Minister for Immigration v SZMOK & Ors [2009] FCAFC 83
Resolution
I accept as set out below the Minister’s submissions put previously concerning the relevant legal principles.
Subsection 425(1) of the Migration Act provides:
Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Section 425 appears in Division 4 of Part 7 of the Migration Act. That Division commences with s.422B, which relevantly provides:
Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
…
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
Division 4 of Part 7 also includes s.424A, which relevantly provides:
Information and invitation given in writing by Tribunal
(1) Subject to subsectio[n] … (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review …
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review …
…
Section 425 is “an important and central right in the merits review system established by Part 7 of the Act”[53], and a breach of it will, in every case, result in jurisdictional error[54]. Amongst other things, s.425(1) requires the Tribunal to communicate to, or to alert, a review applicant the “live issues” on the review[55]. An applicant will be entitled to assume that the issues arising in relation to the delegate’s decision are those that the delegate considered dispositive in deciding his or her protection visa application, and if the issues are considered by the Tribunal to be different, the Tribunal will be required to take steps to draw them to the applicant’s attention[56].
[53] Liu v Minister for Immigration (2001) 113 FCR 541 at 552 [44] per Black CJ, Hill and Weinberg JJ
[54] Applicant NAFF v Minister for Immigration (2004) 221 CLR 1 at 13 [43] per McHugh, Gummow, Callinan and Heydon JJ
[55] SZBEL at 165 [43] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ
[56] SZBEL at 163 [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ
Section 425 does not, however, confer on a review applicant an absolute or unqualified right to appear before the Tribunal. It does not, for example, impose an obligation on the Tribunal “to ensure that an applicant makes the best of the invitation to attend a hearing”[57] or “actively [to] assist the applicant in putting his or her case”[58].
[57] SZTXE v Minister for Immigration [2015] FCA 493 at [18] per Flick J
[58] Minister for Immigration v SCAR (2003) 128 FCR 553 at 561 [36] per Gray, Cooper and Selway JJ
What are the “issues” arising in relation to a decision of the delegate will depend upon the facts of each case. The Federal Court’s judgments in SZHKA v Minister for Immigration[59], Minister for Immigration v SZMOK & Ors[60] and Minister for Immigration and Border Protection v SZTQS & Anor[61] provide some guidance in this respect. The following points emerge from those cases:
a)the issues arising are not limited to the question whether the applicant is entitled to a protection visa[62], or even the main elements of an applicant’s claim[63];
b)initially, the issues will be defined by the reasons of the delegate, but they may, and often will, undergo change in the course of the review[64];
c)to some extent, the issues will depend upon the view that the Tribunal takes about the material before it, and will be shaped by its thought processes and reasons for being unpersuaded by the case presented by the applicant[65];
d)there is a distinction between evidence relating to an issue and the issue itself, and not every matter which might engage the Tribunal’s obligation under s.424A involves “a new issue or a further issue or a previously unidentified issue.”[66] Nor will a “sub-issue” of an issue engage s.425(1)[67].
[59] (2008) 172 FCR 1
[60] (2009) 257 ALR 427
[61] (2015) 148 ALD 507
[62] SZHKA at 5 [7] per Gray J (with whom Gyles J generally agreed); SZMOK at 441 [62] per Emmett, Kenny and Jacobson JJ
[63] SZHKA at 29 [115] per Besanko J; SZTQS at [52] per Griffiths J
[64] SZHKA at 5 [7] per Gray J
[65] SZHKA at 5 [7] per Gray J
[66] SZHKA at 27 [103] per Besanko J
[67] SZIAI at 1133 [55] per Heydon J
The “matter”, for the purposes of s.422B(1), with which s.425 deals is “the opportunity to be afforded by the Tribunal to an applicant to address, at a hearing before the Tribunal, the issues arising in relation to the decision under review.”[68] The matter with which s.424A deals is, as French J (as his Honour then was) said in WAID v Minister for Immigration[69], the “right to comment on adverse material which is known to and is to be relied upon by the Tribunal.”[70]
[68] NAQF v Minister for Immigration (2003) 130 FCR 456 at 476 [86] per Lindgren J
[69] [2003] FCA 220 at [57]
[70] See also Saeed at 267 [42] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Khan v Minister for Immigration (2011) 192 FCR 173 at 185 [40] per Buchanan J (with whose reasons Yates J agreed); Minister for Immigration v SZTJF (2015) 149 ALD 552 at [53] per Yates J
The scope and requirements of ss.424A and 425 are different and must be kept separate. Indeed, in Applicant A125 of 2003 v Minister for Immigration[71], Emmett, Weinberg and Lander JJ cautioned against “import[ing] the requirements of s.424A(1) into s.425”[72]. Thus, s.425(1) cannot be used by a review applicant to require artificially, by an issue identification process, disclosure of information (or parts thereof) that would otherwise be caught by a provision such as s.424A(3)(a), and the latter may, in some cases, be a complete answer to the former[73].
[71] (2007) 163 FCR 285
[72] at 302 [88]
[73] See, for example, ACC15 v Minister for Immigration [2016] FCA 97 at [29] per Gilmour J; BEV15 v Minister for Immigration [2016] FCA 507 at [57] per Bromwich J; MZAFZ v Minister for Immigration [2016] FCA 1081 at [27] per Beach J. The issue was raised, but not resolved, in SZTQS and SZTAP v Minister for Immigration (2015) 238 FCR 404. It has been raised in proceedings before Bromberg J in ABV16 v Minister for Immigration (NSD775/2016), in which judgment is reserved
The effect of s.422B(1) is that Division 4 of Part 7 of the Migration Act is an exhaustive statement of the requirements of procedural fairness in relation to the matters with which the provisions in that Division deal. Subsection 422B(3) is an exhortative provision (like s.420) that does not impose a free-standing procedural fairness obligation on the Tribunal over and above what is provided for in Division 4 of Part 7[74].
[74] SZMOK at [15], [17]-[18] per Emmett, Kenny and Jacobson JJ. See also, in relation to s.357A(3), Minister for Immigration v Li (2013) 249 CLR 332 at 358-362 [49]-[62] per Hayne, Kiefel and Bell JJ
In my opinion, and accepting that [50] of the Tribunal’s reasons was in part dispositive of the review, this case can be disposed of on the basis of the second and third points raised by the Minister. Those are first, that the relevant “issue” for the purposes of s.425(1) was not whether Mr Humala was the President of Peru; rather it was whether the Peruvian authorities or paramilitary groups had any ongoing interest in the applicant on the basis of her claimed knowledge of information adverse to Mr Humala. In my opinion, the fact that Mr Humala ceased to be President of Peru and another person had replaced him was simply an item of evidence in relation to that issue. Further, and in any event, it is apparent from the submissions made on behalf of the applicant, and the discussion at the hearing, that the applicant was aware of the relevant facts. She knew that Mr Humala was constitutionally barred from serving consecutive terms and had, through her agent, submitted that Mr Humala would cease to be President in 2016. It was not suggested to me that there was any particular significance in the identity of the person who replaced Mr Humala as President. There might have been, but that is pure speculation. Significantly, the transcript at lines 785-792 discloses that, not only was the applicant aware that Mr Humala would cease to be President in 2016, but she considered that she faced an increased risk in consequence of him ceasing to be President, apparently on the basis that, once he lost the protection of office, it was more likely that he would be at risk of prosecution and hence more concerned to eliminate those with adverse information. The Tribunal did not see things that way but it is not for me to determine the merits of the Tribunal’s reasoning.
Section 422B(3), at least in the context of these proceedings, does not add anything to s.425. There was nothing unfair about the review conducted by the Tribunal that can be divorced from the contentions in relation to s.425(1).
It is unnecessary to deal with the Minister’s other contentions but, for completeness, I make clear that I am not attracted to the Minister’s contention that the Tribunal’s obligations pursuant to s.425, should be “read down” by reference to the exceptions to the disclosure obligation in s.424A. First, the applicant has not raised any claim in relation to s.424A. Secondly, the provisions deal with different matters. Section 424A deals with the disclosure of adverse information. Section 425, as interpreted by the courts, deals with the identification of issues which may be determinative in the review. There is obviously a significant difference between adverse information and issues. Further, s.424A and s.424AA are highly prescriptive whereas s.425 is a general provision dealing on its face only with invitations to a hearing, rather than the required content of a hearing. Finally, s.424A and s.424AA have been interpreted as setting out what is effectively a code of disclosure uncoupled from disclosure obligations under the general law. In contrast, the interpretation of s.425 has left it connected to the fair hearing rule under the general law. Section 422B establishes a procedural code in relation to that fair hearing rule, but, given the generality of s.425, and the fact that it is plainly rooted in the general law concept of the fair hearing rule, the Court should, in my view, be slow to read it down by reference to s.424A.
Conclusion
I conclude that the applicants have failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 1 February 2017