BXP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 530
•23 April 2020
FEDERAL COURT OF AUSTRALIA
BXP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 530
Appeal from: BXP16 v Minister for Immigration & Anor [2019] FCCA 1946 File number(s): NSD 1234 of 2019 Judge(s): ANDERSON J Date of judgment: 23 April 2020 Catchwords: MIGRATION – appeal from decision of Federal Circuit
Court of Australia dismissing application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) not to grant protection visa – Ground 1: where Facebook photos and screenshots (Facebook information) were shown to appellant at departmental interview – where delegate referred to Facebook information in decision record – where Tribunal relied on Facebook information to refute appellant’s claims – whether Tribunal breached obligation to provide particulars of the Facebook information under s 424A(1) of the Migration Act 1958 (Cth) (Act) – whether Facebook information constituted “information” – whether Facebook information was given by the appellant to the Tribunal – Ground 2: where appellant provided additional material at the Tribunal hearing – where Tribunal stated that it would consider the additional material after the hearing and invite the appellant to another hearing if the Tribunal formed concerns with the material – where Tribunal did not seek further comment from appellant – where Tribunal relied on additional material to make findings adverse to appellant – whether Tribunal breached obligation under s 425 of the Act to invite appellant to appear before the TribunalHeld: appeal allowed – Ground 1 dismissed – Facebook information was contained in delegate’s decision record and was accordingly given by appellant to Tribunal for the purposes of s 424A(3)(b) – Ground 2 allowed – Tribunal breached s 425(1) by failing to invite comment in relation to the additional material and then making findings adverse to appellant based on that material
Legislation: Migration Act 1958 (Cth) ss 359A, 359A(4)(b), 360(1), 422B, 422B(1), 424A, 424A(1), 424A(3)(b), 425(1) Cases cited: Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; 221 CLR 1
BRQ18 v Minister for Home Affairs [2019] FCA 319
BVE16 v Minister for Immigration and Border Protection [2018] FCA 922; 261 FCR 148
BXP16 v Minister for Immigration & Anor [2019] FCCA 1946
CZD18 v Minister for Home Affairs [2019] FCA 1442
DHM17 v Minister for Immigration and Border Protection [2019] FCA 1071
DWQ16 v Minister for Immigration and Border Protection [2018] FCA 1916
Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052; 149 ALD 552
Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326
Minister for Immigration and Citizenship v Brar [2012] FCAFC 30; 201 FCR 240
Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83; 247 FCR 404
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; 183 FCR 575
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553
MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; 166 FCR 483
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; 228 CLR 294
SZBEL v Minister for Immigration and Indigenous Affairs [2006] HCA 63; 228 CLR 152
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190; 235 ALR 609; 96 ALD 1
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189
SZLJD v Minister for Immigration and Citizenship [2008] FCA 1094
SZMDS v Minister for Immigration and Citizenship [2009] FCA 210; 107 ALD 361
SZTNL v Minister for Immigration and Border Protection [2015] FCA 463; 231 FCR 204
SZUXO v Minister for Immigration and Border Protection [2016] FCA 1399; 70 AAR 582
SZVCB v Minister for Immigration and Border Protection [2017] FCA 479
SZVDC v Minister for Immigration and Border Protection [2018] FCAFC 16; 259 FCR 154
Vo v Minister for Home Affairs [2020] FCA 468
Date of hearing: 21 February 2020 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 76 Counsel for the Appellant: Mr R Chia Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to
costsORDERS
NSD 1234 of 2019 BETWEEN: BXP16
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTILCULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ANDERSON J
DATE OF ORDER:
23 APRIL 2020
THE COURT ORDERS THAT:
1.The name of the respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The appeal is allowed.
3.The orders made by the Federal Circuit Court of Australia on 18 July 2019 are set aside.
4.The decision of the Administrative Appeals Tribunal made on 29 June 2016 is set aside.
5.The appellant’s application is remitted to the Administrative Appeals Tribunal to be heard and determined according to law.
6.The first respondent pay the appellant’s costs of and incidental to this appeal and the proceeding before the Federal Circuit Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ANDERSON J:
Introduction
The appellant, a citizen of Pakistan, appeals from a decision of the Federal Circuit Court of Australia (Circuit Court) dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse the appellant a protection visa.
The appellant contends that the Tribunal committed two errors. The appellant first argues that the Tribunal breached s 424A(1) of the Migration Act 1958 (Cth) (Act) by failing to notify the appellant that certain photos and screenshots (as obtained from the Facebook pages of the appellant, and his mother, brother and half-brother) would be used to affirm the delegate’s decision. However, for the reasons expressed below, the Tribunal’s obligation under s 424A(1) did not apply in respect of these materials because the materials were referred to, and incorporated into, the delegate’s decision record and, accordingly, constituted information given by the applicant to the Tribunal for the purposes of s 424A(3)(b) of the Act.
The Tribunal did, however, commit the second error alleged by the appellant. In short, the appellant provided the Tribunal at the hearing with additional photos from Facebook and certain text messages from the appellant’s half-brother. The appellant expressed that these materials supported his case, and the Tribunal stated that it would consider the materials after the hearing, and also contact the appellant if the Tribunal held any concerns with the materials. However, the Tribunal, without contacting the appellant, proceeded in its decision record to make findings adverse to the appellant in relation to the additional material. In doing so, the Tribunal breached its obligation under s 425(1) of the Act, and thereby committed a jurisdictional error.
For these reasons, as explained in detail below, the appeal is allowed, and the matter is remitted to the Tribunal to be determined in accordance with law.
Background
The appellant was born in Lahore, Pakistan in 1993. He arrived in Australia in June 2012 as the holder of a Student (Vocational Education and Training Sector) (Class TU) (Subclass 572) visa. He travelled offshore on 28 November 2013 and returned to Australia on his Student visa on 24 December 2013.
Claim for protection visa
The appellant lodged an application for a Protection (Class XA) visa in January 2014. Accompanying his application was a statement by him dated 31 December 2013. In the statement, he explained that his late father had been a politician representing the Pakistan People’s Party (PPP) prior to his death in 1999. The appellant said that, after his father’s death, the family of his father’s first wife attempted to chase his mother out of Lahore. According to the appellant, his eldest half-brother (half-brother) blamed the appellant’s mother for his father’s death, and demanded that she repay money that his father had given to her. The appellant says that he and his mother were way of the half-brother because he was involved in politics, was very powerful, and had many militants working for him.
The appellant’s statement continued to recount that the appellant and his mother moved to Karachi. In that city, the appellant became involved with the local mullah, who ordered him to work at the mosque and attend his madrassa. The mullah discussed politics with the appellant, preached his fundamentalist and anti-Western beliefs, and said that he would arrange for the appellant to join his half-brother for military training in Khyber Pakhtunkhwa. When the appellant told his mother about this, she became furious and arranged for the appellant to work with his uncle, and for the appellant to temporarily stay with one of her friends. The appellant’s mother said that the half-brother was a member of the Tehrik-i-Taliban Pakistan (TTP) and was involved in recruiting young Muslims for military training in tribal areas. The appellant says that the mullah further summonsed him and told his half-brother had arranged to fetch him for military training.
The appellant says that, as a result of these events, he left Pakistan and came to Australia. According to the appellant, while he was away from Pakistan, his half-brother (and his men) approached the appellant’s younger brother and attempted to recruit him. When the appellant’s mother discovered this, she made a complaint to the police and started to make arrangements for the younger brother to also leave Pakistan. However, while visiting his mother in December 2013, officers from Inter-Services Intelligence (ISI) raided the family home in search of TTP militants. The officers questioned them about the half-brother in connection with a series of bomb attacks on Shia Muslims. Later, the half-brother telephoned his mother, saying that he had learned from the ISI officers about the complaint she had made to the police, and that the half-brother heard from neighbours that the appellant had returned from overseas and threatened to “take him away in front of her eyes”.
On 1 September 2014, the appellant attended an interview with the delegate. The appellant was asked to elaborate upon his claims regarding the half-brother’s political activism and the mullah’s involvement in TTP recruitment. The appellant was also shown at the interview a photograph of his half-brother, which was obtained by the Minister’s department from a Facebook page under the half-brother’s name, and also print-outs of Facebook pages from accounts in the names of the appellant, and his brother and mother, each of which identified the half-brother as a Facebook “friend” (collectively, Facebook information).
On 4 September 2014, the appellant was notified of the delegate’s decision to refuse his application for a protection visa. The delegate in particular considered that the appellant had failed to substantiate his claim that his half-brother had a political profile of prominence within the TTP, or that the mullah was acquainted with the half-brother and had colluded with him to recruit the appellant.
Relevantly for the purposes of this decision, the delegate gave “significant weight” to the fact that the Facebook information showed that the appellant, his brother and mother as “engaged in social networking” with the half-brother. In this regard, the delegate’s decision record (Delegate’s Reasons) relevantly expressed the following:
The applicant was shown a photograph obtained from a Facebook page under the profile name of [the half-brother]. The applicant identified his [half-brother] as the person in the photograph (on the left). The photograph of [half-brother] indicates that it was taken during his participation in election activities. The applicant confirmed the ownership of his own Facebook (FB) account, and also identified the accounts of his brother and mother. Screenshots of the FB accounts identified were presented to the applicant, which list his [half-brother] as a friend on the FB accounts of his mother, brother and himself. It was put to him that this information could be considered to be evidence that the relationship between his family and [half-brother] was amicable, and did not support the circumstances that he claims. Initially, the applicant could not provide a plausible explanation why his family would maintain links through a social networking profile to someone they claim to fear. After this adverse information was put to him, he stated that the family had not been contacted by [his half-brother] for many years until recently. He stated that [his half-brother] began communicating with his family again, and had been friendly and nice. [The half-brother] attempted to persuade the applicant and his brother into joining him in politics, because they had a duty to honour the previous political work of his father. The applicant stated that he was suspicious of [the half-brother’s] motives and activities, and had told [his half-brother] that he was not interested. [The half-brother] then began to harass his mother, and threatened to take both him and his brother away.
I acknowledge that information disclosed by a person on social networking websites may not accurately depict the reality of the actual circumstances of an individual. However, in light of the claims before me, I give significant weight to the fact that all three members of the same family have engaged in social networking with a person who they claim has genuine intentions to inflict serious or significant harm. The applicant could not offer any plausible reason when this adverse information was put to him at interview, other than to recant previous elements of his testimony discussed in my findings above.
(Citations omitted.)
Tribunal’s decision
The appellant applied to the Tribunal for a review of the merits of the Delegate’s decision. On 22 February 2016, the appellant appeared before the Tribunal with the assistance of an interpreter in the Urdu and English languages.
On 29 June 2016, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa. Relevantly, the Tribunal did not accept that the nature of the relationship between the appellant and his half-brother was as claimed. This was in part due to the Facebook information. In this regard, the Tribunal expressed the following in its decision record (AAT Reasons):
What are the applicant’s claims?
…
[37]At the interview with the Departmental delegate on 1 September 2014 … :
…
• The delegate showed the applicant a photograph obtained from a Facebook page under the profile name of [the half-brother]. The applicant identified his [half-brother] as the person in the photograph. The photograph indicates it was taken during his participation in election activities.
• The applicant confirmed the ownership of his own Facebook account and identified the accounts of his brother and mother. Screenshots of the accounts identified were presented to the applicant showing that [the half-brother] was a friend on the Facebook accounts of his mother, brother and himself. It was put to him this information could be considered to be evidence that the relationship between his family and half-brother was amicable and this was not consistent with his evidence that the family were afraid of [the half-brother].
…
[43] The Tribunal did not find the applicant to be a credible or reliable witness. His evidence was confused, irrational and incoherent at times. There were some significant inconsistencies in his various accounts and some recanting of evidence. The Tribunal considers that the applicant has not given an accurate or truthful account of his claims.
…
What are the applicant’s family relationships?
[47] The applicant described a hostile and poor relationship between himself and his [half-brother]. He also stated that his mother and her relatives in Karachi are afraid of [the half-brother]. He claimed that [his half-brother] is motivated by jealousy and malice towards the applicant because the applicant looks and sounds like his father and [his half-brother] is afraid he will follow in his father's footsteps.
[48] The Tribunal does not accept that the applicant and [his half-brother] have a hostile relationship and that he, his mother and brother are afraid of [the half-brother]. The Tribunal asked the applicant to explain why his mother, his brother and [his half-brother] were connected as friends on social media if they were afraid of [the half-brother]. The Tribunal also asked the applicant why [his half-brother] had his mother’s telephone number if she did not want any contact with him. He told the Tribunal that [his half-brother] was very powerful and the family had to respect him so they were linked on social media. He also told the Tribunal that [his half-brother] visited them in Karachi from time to time but they did not enjoy the visits; in the past [his half-brother] had hit him and his mother. With respect to the telephone number, his mother needed her telephone for work and could not change it frequently to avoid contact with [his half-brother].
[49] In his first statement he claimed that after his father’s death in 1999 there was enmity between the family of his father's first wife and the applicant's mother. He stated that [his half-brother] blamed his mother for their father's death and there were continuing disputes about money and property. He stated that once they moved to Karachi they tried to avoid contact with [his half-brother].
[50]However, in his evidence to the Tribunal he stated that [his half-brother] had visited their home and kept contact with the family once they moved to Karachi. He stated that they had to respect and obey him because he was a powerful person.
[51] The Facebook extracts show that [his half-brother], his brother, his mother and he are named as friends on Facebook.
[52] When the delegate put the Facebook information to the applicant at the interview he was not able to satisfactorily explain why they were connected on social media. He claimed that after some years [his half-brother] had started communicating with them on social media and wanted the applicant and his brother to join him in politics but that they did not trust him.
…
[55] The Tribunal does not accept that [the half-brother] and the applicant have a poor relationship and that he is afraid of him. Considering the totality of the information it considers that whilst the families may not be close they are not estranged and that the applicant, [the half-brother] and other family keep in contact through social media and that [the half-brother] has visited the family in Karachi from time to time.
The Tribunal relevantly concluded as follows:
Does the applicant meet the refuge criterion?
[85]Given the findings of fact set out above, the Tribunal does not accept that the applicant faces a real chance of serious harm at the hands of [his half-brother] or [his half-brother’s associates] by way of forcible recruitment to the TTP or to any other extremist militant organisation in Pakistan. It does not accept that he faces any harm at the hands of [the half-brother] or any other persons in any other way. It also does not accept that the mullah in the local mosque in Karachi will take any steps to forcibly recruit him to any militant group.
[86] Accordingly the Tribunal does not accept that the applicant has a well-founded fear of persecution for reasons of his religion, his political opinion or for any other Convention related reason should he return to Pakistan now or in the foreseeable future.
Does the applicant meet the complementary protection criterion?
…
[88]As the Tribunal does not accept that the applicant will be forcibly recruited to the TTP or any other militant organisation by [the half-brother], his associates of the mullah, it does not accept that there are substantial grounds for believing that as a result of the applicant returning to Pakistan that there is a real risk that he will suffer significant harm for this reason.
…
Federal Circuit Court’s decision
The appellant applied to the Circuit Court for judicial review of the Tribunal’s decision. He relied on the grounds of review that are replicated in this Court, as detailed below.
On 18 July 2019, the Circuit Court dismissed the applicant’s judicial review application: BXP16 v Minister for Immigration & Anor [2019] FCCA 1946 (FCCA Reasons).
Appeal to this Court
The appellant appealed the Circuit Court’s decision to this Court on 2 August 2019. His notice of appeal relied on two grounds of appeal, which are considered in turn below.
The appeal was heard on 21 February 2020. The appellant was represented by Mr Chia of counsel and the Minister was represented by Mr Reilly of counsel.
Ground 1 – Facebook information
The appellant’s first ground of appeal contends that
[the Circuit Court] erred in finding that the “Facebook information” was not “information” for the purposes of section 424A or was “given” by the appellant to the Tribunal under paragraph 424A(3)(b) of the Act, and ought to have found that the Tribunal committed jurisdictional error in failing to give information and invitation under that section.
As can be seen, the first ground of appeal relates to the Facebook information that was presented to the appellant at the interview with the delegate. As noted above, the Facebook information comprises a photo of the half-brother on his Facebook account, and screenshots of the Facebook accounts of the appellant, and his brother and mother, each of which identified the half-brother as a Facebook “friend”.
The appellant argued in the Circuit Court, and now argues in this Court, that the Tribunal’s failure to provide to the appellant particulars of that information constituted a breach of s 424A(1) of the Act. For reference, s 424A relevantly provides as follows:
Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (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; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(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; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
…
The background to the enactment of s 424A, and Div 7 of Pt 4 of the Act more generally, was outlined in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; 228 CLR 294 and SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190; 235 ALR 609; 96 ALD 1 (SZBYR) at [11] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
Submissions
Appellant’s submissions
The appellant contends, in summary, that the Tribunal breached its obligation under s 424A(1) by failing to provide “clear particulars” of the Facebook information in accordance with that statutory provision. In this regard, the appellant submits that the Facebook information was documentary material that was “part of the reason” for the Tribunal affirming the delegate’s decision. According to the appellant, this is because the information contained a rejection, denial or undermining of the appellant’s claim to have a hostile relationship with the half-brother, and consequently fear serious harm. The appellant highlights that the Tribunal did not invite the appellant to comment on the Facebook information in writing or orally at the hearing.
The appellant argues that the Tribunal clearly gave weight to the Facebook information in concluding that the appellant, his mother and his half-brother were “friends” on Facebook, and that this suggested the appellant and his half-brother kept in contact through social media, that they did not have a poor relationship, and that the appellant and his family were not afraid of him: AAT Reasons at [47]–[55] (as relevantly extracted above at [13]).
Finally, the appellant argues that the Circuit Court’s finding (at [25]–[27] of the FCCA Reasons) that the Facebook information was not “information” for the purposes of s 424A of the Act—because “it was only relevant to the applicant’s credibility”—was incorrect. The appellant submits that the Tribunal also relied upon the Facebook information to find inconsistencies in the appellant’s evidence of his claim that he, his mother and his brother did not have a good relationship with the half-brother.
Minister’s submissions
The Minister responds, in summary, that the Circuit Court was correct to hold that the Tribunal’s obligation under s 424A(1) of the Act was not engaged. According to the Minister, this is for two reasons:
(a)first, the photos and screenshots were not “information” within the meaning of s 424A(1) as they did not in their terms constitute a rejection, denial or undermining of the appellant’s claims. Rather, the photos and screenshots were only relevant to the appellant’s credit, as the photos and screenshots were inconsistent with his claim that he did not have a good relationship with his half-brother; and
(b)second, in any event, the Facebook information was excluded by s 424A(3)(b) as the information was included in the delegate’s decision, and the appellant duly gave the Tribunal a copy of the delegate’s decision. Therefore, the exception in s 424A(3)(b) operates to exclude this information from the operation of s 424A.
Consideration
“Information”
The Tribunal’s obligation under s 424A(1) does not apply “to every matter that the Tribunal might think to be relevant to the decision”: Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052; 149 ALD 552 (SZTJF) at [30] per Yates J. It only applies in respect of “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”. The question is whether the Facebook information constituted “information” for these purposes.
As Reeves J recently observed in Vo v Minister for Home Affairs [2020] FCA 468 (Vo) at [22], the word “information” has been held to mean “knowledge communicated or received concerning some fact or circumstance”. However, the word “information” for present statutory purposes carries a narrower meaning. “Information” for the purposes of s 424A comprises evidential material or documentation that contains in its terms “a rejection, denial or undermining” of the applicant’s claims to be a person to whom Australia owes protection obligations: SZBYR at [17]; see also MZXBQ v Minister for Immigration and Citizenship [2008] FCA 319; 166 FCR 483 (MZXBQ) at [29] per Heerey J; SZTNL v Minister for Immigration and Border Protection [2015] FCA 463; 231 FCR 204 (SZTNL) at [52] per Griffiths J and SZTJF at [31]. In other words, the particular material must possess dispositive relevance to the claims advanced by the applicant before the Tribunal: MZXBQ at [27]; SZMDS v Minister for Immigration and Citizenship [2009] FCA 210; 107 ALD 361 at [14] per Moore J; SZTNL at [52]; SZTJF at [31].
Information relevant only to the credibility of an applicant before the Tribunal does not constitute “information” for the purposes of s 424A: MZXBQ at [29]; SZTNL at [52]; SZUXO v Minister for Immigration and Border Protection [2016] FCA 1399; 70 AAR 582 at [33] per Katzmann J; BVE16 v Minister for Immigration and Border Protection [2018] FCA 922; 261 FCR 148 at [44] per Gleeson J. An example is the decision of Yates J in SZTJF, where his Honour held at [31] that the obligation under s 424A was inapplicable in respect of departmental records about the visa applicant’s travel arrangements to Australia and her living arrangements in Australia, which, in the circumstances of that case, was “mere inconsistency” or “evidence that [came to be] relied upon to find inconsistency”.
The position is different where the particular material is also relevant to the veracity of the applicant’s claims to be owed protection obligations. In this regard, an example is the decision of Markovic J in SZVCB v Minister for Immigration and Border Protection [2017] FCA 479. The visa applicants in that case sought protection visas. The lead visa applicant claimed that, if she returned to China, she would be pursued by debt collectors (who purportedly had connections to the authorities) as a result of her husband borrowing money from loan sharks at high interest rates for his business ventures. However, the Refugee Review Tribunal held that this claim was inconsistent with the fact that she had provided evidence of a bank loan to her husband to support her student guardian visa application. The visas were accordingly refused.
An issue in that case was whether the content of “the Agent’s Letter” and “the Bank Document”, both of which collectively demonstrated that the lead visa applicant’s husband was eligible for, and had been approved, a loan for study in Australia, was “information” for the purposes of s 424A(1) of the Act. Markovic J’s conclusion in respect of these documents was as follows:
[29] In the Appellant’s case the contents of the Agent’s Letter and the Bank Document was evidentiary material which undermined the Appellant’s claim to fear harm from debt collectors. It was the existence of that material which exposed the inconsistencies in her evidence and was a basis upon which the Tribunal was concerned about the veracity of her claims, which in turn led to the Tribunal’s credibility finding.
[30] As the contents of the Agent’s Letter and the Bank Document was information for the purposes of s 424A(1), the Tribunal was obliged to give that information to the Appellant pursuant to s 424A(1)(a).
(Emphasis added.)
Turning to the present case, the Circuit Court concluded that one reason for there being no breach of s 424A(1) of the Act was that the Facebook information did not constitute “information” for the purposes of that statutory provision. The Circuit Court’s explanation for this (at [26]) was as follows:
The Facebook information did not contain or comprise a rejection or denial of the Applicant’s claims for protection, nor in its terms did it undermine them as pieces of information in their own right. Rather, it was only relevant to the Applicant’s credibility, being inconsistent with his claim that he, his mother and full brother did not have a good relationship with [the half-brother], because, in short, they were connected as friends together on social media …
My view, with respect to the Tribunal, is that this analysis of the relevance of the Facebook information to the Tribunal’s decision is incorrect. The Facebook information was relevant to more than the appellant’s mere credibility. It was also relevant to the veracity of the appellant’s claims to be owed protection obligations.
The claims advanced by the appellant to qualify for protection were summarised above at [6]–[8]. These claims relevantly included the following, as summarised by the Tribunal in the AAT Reasons:
What are the [appellant’s] claims?
…
[19]… [The appellant] stated he is a Muslim born in Lahore and who lived in Lahore with his family. His father was already married and there were 2 half-sisters and two half-brothers from that marriage.
[20]There was enmity between the two families because of the father’s second marriage. His stepmother and half-brother did not like the [appellant] and his brother.
[21]His father was a politician and member of the Pakistan People’s Party (PPP). He did not spend much time with his father due to family rivalries. His father died in 1999 and his first wife forced the family out of Lahore and the [appellant’s] mother returned to Karachi which was her home city.
[22]His [half-brother] blamed the [appellant’s] mother for his father’s death and questioned the money the [appellant’s] father gave his second family.
[23][The half-brother] become involved in politics in Lahore and had many powerful connections. The [appellant] and his mother and brother tried to avoid contact with [the half-brother].
[24]The [appellant’s] mother tried to keep the [appellant] and his brother away from [the half-brother] and made sure they completed their studies.
…
[29][After the appellant told his mother that the mullah wanted the appellant to undertake military training with the half-brother], she became angry and ordered him not to return to the mosque. … In January 202 the mullah summoned him and asked him why he had not been attending the mosque. The mullah told him that [the half-brother] had agreed to take the [appellant] to … undertake military training.
[30]He met his mother at her workplace and she told him that she had organised for him to move to a friend’s place until she could organise for him to travel overseas.
[31]The mullah enquired as to his whereabouts from his mother and she told the mullah he had gone overseas to study. After he arrived in Australia in June 2012 his mother informed him that [the half-brother’s] men had arrived to take him away and when she told them about his travel they ordered his mother to contact [the half-brother] immediately.
[32][The half-brother] spoke to his mother and told her that if they found the [appellant] in Karachi they would take him away and she would never see him again.
[33][The half-brother] stated to pressure his younger brother to join them. The [appellant’s] mother complained to police but they told her it was a family matter. His mother’s family took his brother from the house to protect him and his mother later organised for his brother to leave Pakistan.
These matters squarely raise the claim that the appellant, should he return to Pakistan, would face threats and harassment from this half-brother. The clear implication is that there existed animosity between the appellant and his half-brother.
Evidence of the maintenance of Facebook “friendship” between the half-brother and the appellant (and his mother and brother) tends to contradict the finding that animosity persisted between the half-brother and the appellant’s immediate family. The Facebook information is therefore logically relevant, not just to the appellant’s credibility as a witness before the Tribunal, but to the veracity of his claims for protection. The Facebook information, whether of strong cogency or not, had the capacity to influence the truthfulness of the appellant’s claim that he would be threatened by the half-brother upon the appellant’s return to Pakistan. Thus, to apply SZBYR at [17], the Facebook information contained in its terms an undermining of the appellant’s claims to be a person to whom Australia owed protection obligations. The Facebook information was accordingly “information” within the meaning of s 424A(1).
Exception for information given to the Tribunal
Although the Facebook information comprised “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision” of the delegate for the purposes of s 424A(1)(a) of the Act, that statutory provision is subject to the exceptions in subsections (2A) and (3) of s 424A.
Relevantly for current purposes, the Tribunal’s obligation under s 424(1) of the Act does not apply where, in accordance with the exception in s 424A(3)(b), the relevant information was given by the applicant for the purpose of the application for review by the Tribunal. Such information includes information contained within the delegate’s decision record where the applicant provides that record to the Tribunal: SZVDC v Minister for Immigration and Border Protection [2018] FCAFC 16; 259 FCR 154 at [76] per Siopis, Logan and Markovic JJ; DWQ16 v Minister for Immigration and Border Protection [2018] FCA 1916 at [38] per Moshinsky J; see also Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 (Chamnam You) per Sundberg J at [16] and Minister for Immigration and Citizenship v Brar [2012] FCAFC 30; 201 FCR 240 at [74] per North, Greenwood and Besanko JJ in relation to the analogous provision in s 359A(4)(b) of the Act.
An example in this regard is the decision of Sundberg J in Chamnam You. In that case, a significant reason for the delegate of the Minister for Immigration and Citizenship refusing to grant an application for a Partner (Migrant) (Class BC) visa was a visit by Departmental officers to the visa applicant’s home. The visa applicant and her husband were not present. The officers telephoned the visa applicant’s husband and asked for his whereabouts. The husband attempted to mislead the officers by insisting that he was at home with his wife, unaware that the officers were in fact calling from that very house. This telephone conversation (which formed part of the “home visit material” referred to in Sundberg J’s reasons) was used by the delegate to support the suspicion that the husband did not reside at the visa applicant’s address.
Upon application to the Tribunal under Pt 5 of the Act for review of the delegate’s decision, the visa applicant provided the Tribunal with a copy of the delegate’s decision record. The Federal Magistrates Court subsequently held that the Tribunal had failed to comply with its obligation under s 359A (the Pt 5 equivalent of s 424A) to disclose to the visa applicant particulars regarding the home visit material. However, this conclusion was overturned on appeal by Sundberg J in the Federal Court.
Sundberg J held that the exception in s 359A(4)(b) applied to the “home visit material”. For present purposes, the following remarks by his Honour at [16] of Chamnam You are key:
… The [visa applicant] attached the delegate’s decision (containing the home visit material) to his application to the Tribunal. … Doubtless the [visa applicant] did not rely on the home visit material in the delegate’s decision. Nevertheless he “gave” the Tribunal the delegate’s decision and thus gave it the information contained in the delegate’s reasons. An applicant’s purpose or intention that the Tribunal take some information into account may explain why information not directly given to it is taken to have been given to it by him or her. Resort to an applicant’s purpose or intention has no application to a case such as the present where information is physically handed over. Adoption or incorporation cases cannot justify reading down the word “gave” so that it means “relied on”.
The same conclusion is warranted in the present case. Although the photos and screenshots of the relevant Facebook accounts were not themselves exhibited in the Delegate’s Reasons, those reasons clearly referred to the substance of the Facebook information, and incorporated that information by reference to the departmental file. (See the reference to “Departmental file CLF2014/11776 relating to the applicant” on page 3 of the Delegate’s Reasons, and footnotes 18 and 19 on page 9 of the Delegate’s Reasons, which cited the relevant folio from that departmental file).
The appellant provided the Tribunal with a copy of the Delegate’s Reasons in the present case: AAT Reasons at [6]. As such, the Facebook information was information given by the appellant to the Tribunal for the purposes of s 424A(3)(b) of the Act. On this basis, the exception in that provision operated to disable the Tribunal’s obligation under s 424A(1) in respect of the Facebook information.
For these reasons, the Circuit Court, although erring in certain respects, was ultimately correct to conclude that there was no breach of s 424A of the Act by the Tribunal. As a result, the first ground of appeal is dismissed.
Ground 2 – Additional material provided at Tribunal hearing
The appellant’s second ground of appeal contended that
[f]urther or in the alternative, [the Circuit Court] erred in not finding, and ought to have found, that the Tribunal failed to conduct a “review” or failed to “invite” the appellant in accordance with the Act by failing to invite him to respond to concerns it had regarding the material provided at and immediately prior to the hearing.
This ground of appeal relates to material, comprising certain photographs from Facebook and translated text messages (additional material), provided to the Tribunal at, and immediately prior to, the Tribunal hearing.
According to the transcript of the Tribunal hearing, the following dialogue in respect of the additional material occurred soon after the start of the hearing:
TRIBUNAL MEMBER: … Ok, before we start the hearing, I just want to be clear on what extra documents we have or new documents we have. I have just received documents walking into the room. I am just wondering what they are and why they were given to me when I don’t have a chance to read them?
…
[The Tribunal member and the interpreter (on behalf of the appellant) proceeded to discuss the content and origins of the additional material before continuing as follows.]
…
TRIBUNAL MEMBER: I will have to have a good look at those after the hearing
INTERPRETER: Yes please.
TRIBUNAL MEMBER: So if there's anything that um concerns me about the photographs, I may either have to write to you or get you to come in again to give evidence.
(Emphasis added.)
Then, shortly before the end of the Tribunal hearing, the following dialogue occurred:
TRIBUNAL MEMBER: Alright well I think um it is half past three. Is there anything else that you want to tell me that we haven’t covered?
INTERPRETER: There are so many things but it just come with the time, sometime I get emotional. At least you give me time and you listening to me I have found it very easy and I feel relieved.
TRIBUNAL MEMBER: Um what I am going to do is I am going to read through the material and if there is anything that I need to put to you further I will either put it in writing or invite you to another hearing.
INTERPRETER: Whenever you ask me to come I will come definitely. These things are important for me and all these pictures I have provided please go though it and whenever you want you can call me. Whatever I have said is, these pictures and these documents they support my sayings and my evidence.
TRIBUNAL MEMBER: Ok so until I have a look at that material I can’t really make up my mind if you need another hearing or whether I can send you a letter and the reason is that I have a legal obligation to discuss any new issues with you at the hearing or invite you to a hearing to discuss it. So without considering that material I can’t really decide whether there is a new issue or not.
INTERPRETER: I can understand your position.
TRIBUNAL MEMBER: I am not sure if your representative wants to put anything to me?
REPRESENTATIVE: [The appellant’s representative explained to the Tribunal that the reason why the appellant presented new evidence on the day of the hearing was because of difficulties in obtaining appropriate translation of those materials.]
TRIBUNAL MEMBER: Alright.
REPRESENTATIVE: But I confirm we have covered everything that we wish to discuss today.
TRIBUNAL MEMBER: Alright, well as I said I have to read through the material before I decide whether to invite the applicant to another hearing or if there is anything there that I need to put to him in writing.
(Emphasis added.)
There was no further communication from the Tribunal regarding the additional material prior to the Tribunal’s decision.
The AAT Reasons included the following references to, and consideration of, the additional material:
What are the applicant’s claims?
…
What are applicant’s family relationships?
…
[54]The applicant provided copies of text messages he claimed were received by his mother and other relatives which contained threats made by [his half-brother] against his mother. The text messages have been poorly translated but appear to be a polite request for the applicant’s mother not to come to their world because it would be difficult to save her honour. The Tribunal accepts that the family may have some personal issues or disputes relating to family and financial matters but there is nothing in the translations of the text messages which the Tribunal could interpret as a threat to the applicant’s mother.
…
What are [the half-brother’s] political connections or affiliations?
…
[71]The applicant has provided several photographs apparently taken from Facebook or other social media sits and those photographs show [the half-brother] variously at Islamic events, with election campaign banners in the streets, visiting mosques, campaigning with the PMLN Tiger Symbol in evidence on tables and background posters, posing with guns, with police friends, his uncle’s guard and with well-known political figures. These photographs do not suggest in any way that [the half-brother] is a members [sic] of TTP or any proscribed extremist group, in fact they show that he is involved in mainstream political and religious life in Pakistan which is consistent with his father’s political background and his own business interests.
[72]There are also 3 photographs apparently taken from [the half-brother’s] Facebook which are clearly satirical caricatures of [the half-brother] added as new photographs on Facebook on 6 April. They are photographs of the half-brother] with the following captions; “Wanted Dead or Alive; Triggerfinger McGee.$1000 Reward”; “WANTED Assault with a Deadly Weapon Police Department City of Liberty” and “Wanted Dead or Alive. Reward $1000000; Sheriff”. The purpose of these photographs … is not clear. They do not support the applicant’s claims.
…
Submissions
The appellant argues, in summary, that the Tribunal, by not inviting the appellant to further comment on the additional material, failed to do something that the Tribunal admitted at the hearing that it had a “legal obligation” to do. In doing so, the Tribunal, in the appellant’s submission, committed an error akin to that identified by the High Court in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; 221 CLR 1 (NAFF).
The Minister conversely argues that the present case is distinguishable from NAFF on the basis that the Tribunal’s statements did not unequivocally undertake to provide the appellant with an opportunity for further clarification or evidence. In the Minister’s submission, the Tribunal’s statement was provisional only, and was simply raising the possibility that, after the Tribunal had the opportunity of reading the additional material, it may invite further comment.
Consideration
Error in NAFF
As indicated, the appellant relied on NAFF to demonstrate the Tribunal’s error in the present case. At the end of the hearing before the Refugee Review Tribunal (RRT) in NAFF, the RRT expressed that it would write to the visa applicant about inconsistencies in the appellant’s evidence regarding the detentions to which the visa applicant claimed to have been subjected. The RRT specifically stated the following (see NAFF at CLR 3–4 [11]):
Given that there are some inconsistencies with regard to the dates of the detentions and the number of detentions, I will have to write to you about those.
…
So what I will do is to write to you in the next couple of days and you will have 21 days in which to respond to my questions and to put any more information that you wish to the Tribunal.
Contrary to these statements, the RRT did not write to the visa applicant in NAFF after the hearing. The visa applicant next heard from the RRT in a letter stating that the Tribunal had made its decision, and that the decision would be shortly handed down.
The High Court held in NAFF that the RRT had failed to afford the visa applicant procedural fairness by failing to provide the visa applicant with the opportunity to address the inconsistencies with his evidence, as the Tribunal has promised. This was despite there being no evidence that the visa applicant had relied on the Tribunal’s statement.
In the course of considering the RRT’s duty to permit the visa applicant to give evidence and present argument, the plurality of McHugh, Gummow, Callinan and Heydon JJ stated the following (at CLR 8) about the RRT’s actions:
[27]One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider the arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn.
…
[32]… It is probable, when the workload under which the Tribunal labours is borne in mind, that the Tribunal member did not send the promised questions because she had forgotten or overlooked the fact that she had made the promise to send them. Her failure to give any indication otherwise suggested that her original impression that the review process was incomplete had not altered on reflection, and was soundly based. It would not be complete until the steps which she had thought could remedy its defects had been carried out. The failure to complete the review process was a failure to comply with the duty imposed by s 414(1) to conduct the review and the duty under s 425(1) to hear from the appellant.
Kirby J (agreeing with, but writing separately to, the plurality) also expressed the following (at CLR 16):
[56]… in the light of the statement made to the appellant by the Tribunal, and the failure to fulfil the intended action foreshadowed there, the course of the proceedings involving the appellant was unfair. At the end of the proceedings, the appellant had pronounced himself confused over questions addressed to him by the Tribunal member concerning dates and events affecting the foundation of his claim for a protection visa. Certain difficulties had arisen from the use by the Tribunal of a Tamil-speaking national of Sri Lanka as the interpreter. It seems that the Tamil language in Sri Lanka may contain some differences from that spoken in the part of India from which the appellant derived. The appellant’s agent expressed concern over this.
[57]The Tribunal member, by her statements, acknowledged “some inconsistencies” and, at least at the closing stage of the hearing, foreshadowed a legally unnecessary and unusual course of writing to the appellant about the inconsistencies, so as to afford him the opportunity to respond to questions and to put more information before the Tribunal as he wished. When this was not done, and the subsequent decision proved adverse, the claim of procedural unfairness became virtually inevitable.
[58]The appellant did not suggest that the course adopted by the Tribunal was one of deliberate unfairness or a wilful endeavour to mislead him, to prevent him from dealing with an issue or to stop him saying something that might have persuaded the Tribunal to reach a different conclusion. Instead, the appellant was prepared to accept that, for whatever reason, the Tribunal had forgotten or overlooked its indication that it would write to him and afford him the opportunity to deal with outstanding concerns about inconsistencies. However that may be, the failure to do so represented a procedural injustice because the “inconsistencies” remained relevant. They proved important to the outcome. They should have been followed up as the Tribunal had indicated. The failure to do so involves procedural unfairness.
NAFF has subsequently been invoked on occasion by applicants upon judicial review to advance the argument that the relevant administrative decision-maker failed to afford the applicant procedural fairness. An example of an unsuccessful attempt to establish an NAFF style error is found in the decision of Reeves J in SZLJD v Minister for Immigration and Citizenship [2008] FCA 1094 (SZLJD).
The visa applicant in SZLJD contended that, at the conclusion of the hearing, the RRT left the appellant with the impression that the RRT would contact the visa applicant by letter if it had any doubts. The visa applicant, relying on NAFF, submitted that the RRT therefore did not give her an opportunity to respond to any doubts as it had promised.
Reeves J held that the nature of the RRT’s statement in SZLJD were distinguishable from that considered by the High Court in NAFF. His Honour explained this at [26]:
In my opinion, the first matter [i.e. the visa applicant’s contention that the [RRT] left the appellant with the impression that the [RRT] member would contact her by letter if it had any doubts] appears to be an allegation of a denial of procedural fairness along the lines identified by the High Court in NAFF and is not made out on the facts. In NAFF the [RRT] clearly indicated to the applicant that it would be writing to the applicant (see [11] and [31]) whereas here, the [RRT] member merely indicated he was going to check with the Australian Embassy in Tokyo about the visa documentation produced by the appellant. He concluded the hearing saying ‘Now I am going to close the hearing. You may hear from me in the form of a letter. Then you will have time to respond if you get such a letter’. Unlike in NAFF where there was an unequivocal statement that the [RRT] would be taking further steps in relation to the applicant’s application, in this matter the [RRT] indicated that it would be making further enquiries about the appellant’s visa and may write to her, obviously depending on the outcome of those enquires. In my view, there was no denial of procedural fairness in this case of the kind identified by the High Court in NAFF.
Section 425(1) – The Tribunal’s invitation
Before comparing the facts of NAFF and SZLJD to those in the present case, an appropriate starting point is to observe that NAFF involved the application of the general law of procedural fairness. Section 422B(1) of the Act—which now provides that Div 4 of Pt 7 (comprising ss 422B–429A) of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule—had not come into operation as at the time of the RRT’s decision in NAFF, and was therefore inapplicable in that case: see NAFF at CLR 15 [52]–[53] per Kirby J.
The consequence of the introduction of s 422B is that the appellant in the present case must point to an infringement of the terms of Div 4 of Pt 7 of the Act to establish that the Tribunal breached its procedural obligations. To this end, the appellant contends that the Tribunal, by committing an error analogous to that in NAFF, breached its obligation under s 425(1) to “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(1) of the Act “does not require that the Tribunal actively assist the applicant in putting his or her case; nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be”: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553 (SCAR) at [36] per Gray, Cooper and Selway JJ, quoted in Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; 183 FCR 575 (SZNVW) at [35] per Keane CJ. It does, however, require the Tribunal to provide the applicant with a real and meaningful hearing relating to the relevant issues arising in relation to the decision under review: SCAR at [37]; see also BRQ18 v Minister for Home Affairs [2019] FCA 319 at [28] per Perry J; DHM17 v Minister for Immigration and Border Protection [2019] FCA 1071 at [12] per Snaden J and CZD18 v Minister for Home Affairs [2019] FCA 1442 at [27] per Katzmann J. In this regard, the plurality of Hayne, Kiefel and Bell JJ expressed the following in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 in the course of considering s 360(1) of the Act (which is the Pt 5 equivalent of s 425(1)):
[60]… Section 360(1) and its purpose are central to Div 5 and the conduct of the review for which the Division provides. The purpose of s 360(1) is not difficult to discern. It is to provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review. The sub-section contemplates that such a hearing will be had before the Tribunal makes its decision. The Tribunal’s duty therefore extends further than merely issuing an invitation to an applicant to appear.
[61]Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case. …
The importance of the obligation under s 425 of the Act is emphasised by the effect of s 422B: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 (SZFDE) at [31] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. The undermining of the operation of s 425 “subverts the observance by the Tribunal of its obligation to accord procedural fairness to applicants for review”: ibid at [32]. This subversion also “matters because if established it undermines the due administration of Part 7”: SZNVW at [83] per Perram J; see also Vo at [27]. Failure of the Tribunal to comply with the requirements of s 425 involves a jurisdictional error: SCAR at [38].
Error in the present case
In the present case, although the statements by the Tribunal are not perfectly analogous to the statements of the RRT in NAFF, the Tribunal has, for the following reasons, committed an error akin to that committed in NAFF, and thereby breached its statutory obligation under s 425(1) of the Act.
The degree of equivocality of the statements by the Tribunal in the present case stands somewhere between those considered by the High Court in NAFF and Reeves J in SZLJD. As the Minister submits, the statements made by the Tribunal in the present case, as emphasised in the extract above at [47]–[48], are not unequivocal like the statement in NAFF, where the Tribunal expressed that it would definitely write to the applicant, and provide the applicant an opportunity to respond. On the other hand, the statements in the present case are of greater import than the relatively trivial statement made by the Tribunal in SZLJD that the applicant “may hear” from the Tribunal after the hearing.
The context for the Tribunal’s statements in the present case is important. The appellant (or his representative) presented the additional material for the first time on the day of the Tribunal hearing. As the Tribunal observed at the hearing, this was unfortunate, and did not particularly help the appellant’s case. However, that did not excuse the Tribunal from addressing those materials. Given the Tribunal did not have a prior opportunity to read and consider the additional material, they were understandably not a focus of discussion at the hearing. The Tribunal gave numerous indications that it would instead consider the additional material after the hearing. However, the Tribunal’s statements went further. The Tribunal also expressed to the appellant that it had “a legal obligation to discuss any new issues” with the appellant.
Regardless of whether the additional matter triggered a “new issue” for consideration, it is apparent from the transcript of the Tribunal hearing that the appellant was left with the impression that, if anything about the additional material concerned the Tribunal, the Tribunal would invite further comment from the appellant. At one point, the Tribunal expressed to the appellant that it was “going to read through the material and if there is anything that I need to put to you further I will either put it in writing or invite you to another hearing”. The subjective importance of the additional material to the appellant, and his eagerness to engage with the Tribunal in relation to those materials, is clear from his response to that statement:
INTERPRETER: Whenever you ask me to come I will come definitely. These things are important for me and all these pictures I have provided please go though it and whenever you want you can call me. Whatever I have said is, these pictures and these documents they support my sayings and my evidence.
After the hearing, the Tribunal evidently did go through the additional material as promised, but it did not raise those materials again with the appellant. The Tribunal proceeded to make its decision, which, relevantly for immediate purposes, was partly based on the rejection of the additional material as supporting the appellant’s claims. In particular, in the AAT Reasons at [54] and [71]–[72] (as extracted above at [50]), the Tribunal made findings adverse to the appellant in relation to the additional material. The Tribunal held at [54] that there was nothing in the text messages from the half-brother which could be interpreted as a threat to the applicant’s mother. The Tribunal moreover held at [71] and [72] that the further photographs provided by the appellant did not show that the half-brother was a member of the “TTP or any proscribed extremist group”, or otherwise support the appellant’s claims. The references to the additional material in the AAT Reasons demonstrate that the material pertained to “issues arising in relation to the decision under review” under s 425(1) of the Act.
Although there was evidence other than the additional material to support these findings, it cannot be concluded that the denial of the opportunity for the appellant to comment on the Tribunal’s concerns with the additional material could have made no possible difference to the outcome of the Tribunal’s decision. The existence and nature of the threats made by the appellant’s half-brother, and the question as to whether the half-brother was indeed a member of the TTP, were issues central to assessing the veracity of the appellant’s claims to protection. Moreover, this is not a case where the appellant was required to file evidence to prove that he was prejudiced by the Tribunal’s failure. As explained by Emmett, Kenny and Jacobson JJ in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83; 247 FCR 404 at [66]:
In some circumstances, it may be necessary for an unsuccessful applicant for review to file evidence about what steps would, or at least could, have been taken if the alleged breach of procedural unfairness had not occurred. That would not apply where the procedural unfairness resulted from failure to give the applicant the opportunity of commenting on inconsistencies that caused concern to the Tribunal. In such a case, the applicant would not be able to file an affidavit stating what answers would have been given to particular questions without knowing what the questions would have been (see NAFF’s Case at [32] to [34]).
The relevant findings of the Tribunal in relation to the additional material may or may not have been correct. That is not the concern of this Court upon judicial review. For the purposes of this application, the issue is that the adverse findings by the Tribunal were made without the appellant being provided an opportunity to comment on the Tribunal’s concerns, and in circumstances where, first, the Tribunal knew that the appellant believed that the material supported his case and, second, the appellant was reasonably left with the impression that the Tribunal would contact him if the Tribunal formed concerns with the material.
Given the apparent eagerness of the appellant to comment on the additional material, the appellant would presumably have been ready and willing to address the Tribunal at the hearing regarding the materials. However, the Tribunal prevented this opportunity by deciding (prudently) that it would need to consider the materials after the hearing. However, by the Tribunal making adverse findings in relation to the material without inviting further comment from the appellant, the result is that the present case is one “in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair”: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 (WZARH) at [59] per Gageler and Gordon JJ.
Although the appellant would have reasonably held a subjective expectation of being contacted by the Tribunal where relevant, the conclusion expressed above does not rest on any question of the legitimacy of that expectation: see WZARH at [30] per Kiefel, Bell and Keane JJ and [61] per Gageler and Gordon JJ. Although the circumstances surrounding the creation of that expectation are relevant, the critical determination is that the circumstances in which the Tribunal made its decision were practically unjust to the appellant: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [33]–[37] per Gleeson CJ.
Finally, contrary to the Circuit Court’s reasoning (at [39]–[40]), it is not to the point that the Tribunal is not required to give an applicant a running commentary on its thought processes. That is undoubtedly correct (SZBEL v Minister for Immigration and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ), but that principle does not assist in the circumstances of the present case. The Tribunal, in order to comply with s 425(1) of the Act, was not required to provide a running commentary on the additional material. Instead, once the Tribunal had reviewed the additional material, and intended to draw adverse findings from that material, it was required in the circumstances of the present case to provide the appellant with an opportunity to comment further on that materials.
The appellant’s second ground of appeal is accordingly allowed.
Conclusion
For the reasons expressed above, the appellant has succeeded in his appeal to this Court. I will therefore make the following orders:
1.The name of the respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2. The appeal is allowed.
3.The orders made by the Federal Circuit Court of Australia on 18 July 2019 are set aside.
4.The decision of the Administrative Appeals Tribunal made on 29 June 2016 is set aside.
5.The appellant’s application is remitted to the Administrative Appeals Tribunal to be heard and determined according to law.
6.The first respondent pay the appellant’s costs of and incidental to this appeal and the proceeding before the Federal Circuit Court.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anderson. Associate:
Dated: 23 April 2020
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