Dowlat v Minister for Immigration - [2009] FMCA 171

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DOWLAT v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 171

MIGRATION – Review of Migration Review Tribunal decision – refusal of a child orphan relative visa – Tribunal erred by failing to give sufficient notice to the review applicant that he could have witnesses at the Tribunal hearing – consideration of discretion to refuse relief – possible prejudice to the applicant flowing from the error – writs ordered.

Migration Act 1958 (Cth), ss.359, 359A, 359AA, 359B, 360, 360A, 361, 424, 425, 425A, 424B, 424C, 426
Migration Regulations 1994 (Cth)

SZAIA v Minister for Immigration [2008] FCA 1372
SZBQS v Minister for Immigration [2008] FMCA 812
SZIZO v Minister for Immigration [2008] FCAFC 122
SZLTR v Minister for Immigration [2008] FCA 1889
SZMDI v Minister for Immigration [2009] FMCA 103

Applicant:

RAWOOF DOWLAT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG 3369 of 2008

Judgment of:

Driver FM

Hearing date:

5 March 2009

Delivered at:

Sydney

Delivered on:

20 March 2009

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Dobbie and Devine Immigration Lawyers Pty Ltd

Counsel for the Respondents:

Ms T Wong

Solicitors for the Respondents:

Sparke Helmore

ORDERS

A writ of certiorari shall issue quashing the decision of the Migration Review Tribunal made on 3 December 2008.
A writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the review application before it according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3369 of 2008

RAWOOF DOWLAT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was made on 3 December 2008. The Tribunal affirmed a decision of the delegate not to grant the five visa applicants Child (Migrant) (Class AH) visas.
The visa applicants made the child visa applications on 2 November 2006 on the basis of being orphan relatives. The critical criterion to be satisfied, for the purposes of the current review, is whether the visa applicants satisfied the definition of “orphan relative”, set out in regulation 1.14 of the Migration Regulations 1994 (Cth) (“the Migration Regulations”). That regulation relevantly stated:
1.14 Orphan Relative
An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:
(a)    the applicant:
(i)          has not turned 18; and
(ii)     does not have a spouse; and
(iii) is a relative of that other person; and
(b)the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and
(c)there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.
There are therefore three ways to satisfy regulation 1.14(b); an applicant cannot be cared for by either parent because either:
4.1    each parent is dead; or
4.2    each parent is permanently incapacitated; or
4.3    each parent is of unknown whereabouts.
The Tribunal found that (court book (“CB”) 198 at [62]):
…it is not satisfied that the applicants’ mother has died. Whilst the Tribunal has sympathy for the applicants presumably difficult situation in Pakistan, this does not overcome the fact that the Tribunal is not satisfied that the visa applicants cannot be cared for by either of their parents because each of them is dead and therefore they do not meet the requirement of r.1.14(b) and do not satisfy clause 117.211.
The review applicant before the Tribunal (and the only applicant in the proceedings in this Court) is the adult sibling of the child applicants, at least two of whom now appear to be adults. It is not appropriate that this Court should delay a decision in this case, given that the passage of time works against the applicants who become ineligible for the class of visa sought once they attain the age of 18 years.

The judicial review application

These proceedings began with a show cause application filed on 19 December 2008. The applicant now relies upon a further amended application filed in court by leave on 5 March 2009. The grounds in that application are:
1. The Tribunal failed to take into account a relevant consideration
Particulars
(i) The Tribunal failed to take into account whether subregulation 1.14(b) was satisfied for the purposes of clause 117.211 of the Migration Regulations 1994, in so far as it had to determine if the Applicant’s mother could not care for the visa applicant as a result of being permanently incapacitated or of unknown whereabouts.
(ii) The Tribunal failed to take into account the statutory declaration of Hakimi Mohammad Isa, which contained his first-hand account of the Applicant’s mother’s death.
(iii) The Tribunal failed to take into account the Power of Attorney (Death Certificate) document relating to the Applicant’s mother that was authenticated by the Embassy of Afghanistan, Canberra.
(iv)Tthe Tribunal failed to take into account the authentication by the Embassy of Afghanistan, Canberra of the Power of Attorney (Death Certificate) document relating to the Applicant’s mother.
(v) The Tribunal failed to take into account the following:
(a) Confess letter from the Priest of Imam Baqiatullah, M Juma Rasooli, Quadratullah Nasiri, and Haji G Mohammad;
(b) Confess letter from Bakht Nisa Sha Gul Doulatshahi.
2. The Tribunal failed to comply with ss.359(2), 359(3) and 359B of the [Migration] Act [1958 (Cth) (“the Migration Act”)]
Particulars
The Tribunal failed to comply with ss.359(2), 359(3) and 359B as it did not issue the requisite invitation when it sought additional information through DFAT of (a) the Ali Abad Hospital in Quetta and (b) the Afghan Consulate in Quetta.
3. The Tribunal failed to comply with ss.360, 360A and 361(2) of the Act
Particulars
(i) The Tribunal failed to comply with ss.360, 360A and 361(2) of the Act as it failed to notify the Applicant that within 7 days after being notified under subsection 361(1), the Applicant could give the Tribunal written notice that the Applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(a)     The purported invitation, faxed on 21 April 2008, only gave the Applicant until 25 April 2008 to provide such notice.
4. The Tribunal failed to comply with s.359A of the Act
Particulars
(i) Not pressed.
(ii) The Tribunal failed to issue the requisite s.359A notice in relation to the correspondence that it sent to and received from the Department of Foreign Affairs and Trade.
5. The Tribunal failed to make relevant enquiries such that the decision is vitiated by unreasonableness
Particulars
(i) The Tribunal failed to make a telephone call to a person that the Applicant stated took his mother’s body to Afghanistan, when the number was provided to the Tribunal for that purpose.
(ii) The Tribunal failed to make enquiries to DFAT relating to its request dated 14 July 2008 in relation to:
(a)     whether DFAT made the enquiries requested of it to the Ali Abad Hospital and the Afghan Consulate General;
(b)     how the enquiry at (a) was made, what was contained in the request, how a response was made and what the response actually was.
The only evidence before me is the court book filed on 18 February 2009.

Submissions

The first particular in ground 1 was not pursued in the applicant’s oral submissions. The written submissions are:
The Tribunal failed to determine if either 4.2 or 4.3 above were satisfied for the purposes of r1.14(b). It therefore failed to determine the issue that it had to determine for the purposes of clause 117.211. This can be categorised as either a failure to take into account a relevant consideration or a failure to apply the applicable law, by limiting regulation 1.14 only to circumstances where the parents are dead. Such a failure constitutes jurisdictional error: Craig v The State of South Australia (1995) 1 CLR 163 at 179; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 94 at 39 per Mason J:
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.
In relation to the other particulars the applicant submits that the Tribunal failed to give meaningful consideration (or engage in an active intellectual process in considering) the documentary evidence referred to. The applicant relies upon the Federal Court decision in NAJT v Minister for Immigration (2005) 147 FCR 51, in particular at [213] and the decision of his Honour Sackville J in Singh v Minister for Immigration (2001) FCR 152 at [59]. During the course of oral argument, counsel for the applicant also adopted the reasoning of his Honour Finkelstein J in SZDGC v Minister for Immigration [2008] FCA 1638 at [23]-[27] in order to support the proposition that the Tribunal did not properly take into account corroborative evidence in the form of certain documents in dealing with the applicant’s claims.
The applicant makes the following submissions in relation to ground 2:
The Tribunal initially invited the Department of Foreign Affairs and Trade on 18 April 2008 to make enquiries with the Ali Abad Hospital in Hazara Town, Quetta and also with Afghanistan’s Consulate General in Quetta to obtain further information (CB 102). A response was received on 22 April 2008 (CB109) and on 20 May 2008 (CB110).
On 14 July 2008, it sent a new invitation to the Department of Foreign Affairs and Trade to make enquiries with the Ali Abad Hospital in Hazara Town, Quetta and also with Afghanistan’s Consulate General in Quetta to obtain further information (CB 126). A response was received from DFAT on 17 July 2008, referring to its response dated 19 May 2008 (CB143). It is noted that there is no response dated 19 May 2008, although there is a DFAT response dated 20 May 2008 (CB110).
The Tribunal relied on the DFAT response given on 20 May 2008 (CB198 at [59]-[60]). This is further evidenced by it sending a s.359A notice on 16 July 2008 (CB128). That seven page document predated the DFAT response found at CB143.
The Tribunal was not permitted to rely on that information, where it had been obtained in breach of ss.359 and 359B. Furthermore, it did not comply with ss.359(2), 359(3) and 359B when it sought that additional information because the invitation to provide the information was not in writing to the Ali Abad Hospital in Hazara Town, Quetta or to Afghanistan’s Consulate General in Quetta. That breach constitutes jurisdictional error: SZKCQ v Minister for Immigration and Citizenship (2008) 170 FCR 236 at [74] per Buchanan J:
74 In SZKTI the RRT sought information from a person known to the applicant. It sought the information by telephone. The Full Court held that was impermissible. In the present case the RRT sought information, not only from the appellant but also, through the High Commission in Islamabad, from Mr Abbas and Mr Khalid. Although the request to the High Commission was in writing there is nothing to suggest that the invitation to provide information which was extended to Mr Abbas and Mr Khalid was in writing. It could only have been an invitation as both gentlemen were beyond the reach of any compulsive power possessed by the RRT. Prima facie, therefore, the provisions of s 424(2) were engaged also with respect to the additional information sought from each of them.
I was invited to defer judgment in this matter until the decision of the Full Federal Court in SZLPO v Minister for Immigration is handed down. I decided not to delay the judgment as the case could be resolved without a decision on the operation of s.359.
In relation to ground 3, the applicant submits:
The Tribunal failed to comply with ss.360, 360A and 361(2) of the Act as it failed to notify the Applicant that within 7 days after being notified under subsection 361(1), the Applicant could give the Tribunal written notice that the Applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
The purported invitation, faxed on 21 April 2008, only gave the Applicant until 25 April 2008 to provide such notice (CB100-101). A failure to comply with ss.360, 360A and 361(2) is a jurisdictional error, warranting the granting of the relief sought. In SZMQE v Minister for Immigration and Citizenship [2008] FMCA 1474, Scarlett FM at [35] found that the failure to comply was a jurisdictional error:
35.The first point to be made is that the Tribunal did make a jurisdictional error by failing to comply with s 426 of the Migration Act. The relevant parts of the section say:
(a)In the notice under s 425A, the Tribunal must notify the applicant:
a.that he or she is invited to appear before the Tribunal to give evidence; and
b.of the effect of subsection (2) of this section
(b)The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
36.The letter sent to the applicant dated 6 October 1998 said:
You now need to tell the Tribunal
· Whether or not you want to come to the Tribunal to give oral evidence; and
· Whether or not you want to ask the Tribunal to obtain evidence from other people.
PLEASE COMPLETE THE ENCLOSED “RESPONSE TO HEARING OFFER” FORM AND RETURN IT TO THE TRIBUNAL WITHIN 21 DAYS OF THE DATE OF THIS LETTER
If you want the Tribunal to take oral evidence from another person or persons, please complete the ‘witness’ details on the enclosed form. The Tribunal will consider your wishes but it does not have to take evidence from any witness you name.[1]
37.The applicant completed the Response to Hearing Offer and signed it on 26^th October 1998. The Tribunal’s date stamp shows that it was received the next day. On that form, the applicant (or someone on his behalf) placed a tick in the box marked “no” next to the question:
Do you want the Tribunal to take oral evidence from any witnesses?[2]
38.Clearly, the Tribunal’s letter to the applicant did not comply with s 426(1) (b) as it did not notify the applicant of the effect of subsection 426(2). This is a jurisdictional error.
[1] Court Book 61
[2] Court Book 63
In oral submissions counsel for the applicant put to me that I should not withhold relief in respect of the Tribunal’s error in the exercise of discretion because the Court could not be certain that the review applicant suffered no prejudice from the failure by the Tribunal to give notice as required by the section.
The only particular ultimately pursued by the applicant in relation to ground 4 is the assertion that the Tribunal erred in not notifying the applicant pursuant to s.359A of its second request for information to the Department of Foreign Affairs and Trade and the response received. The applicant submits:
The new Ground 4(iii) alleges a breach because the Tribunal failed to provide the Applicant with the correspondence that it sent to, and received from, the Department of Foreign Affairs and Trade (CB126-127, CB143). In SZKCQ, Buchanan J also held at [79]-[94] that the failure to provide such information can constitute a jurisdictional error:
79 In my view, the RRT was in breach of both s 424A(1)(a) and (b). The question which was to be posed to Mr Khalid in such a particular way was information, within the meaning of s 424A(1)(a), which should have been provided to the appellant together with Mr Khalid’s answer. It was also necessary to do that, in accordance with s 424A(1)(b), so that the appellant might understand why the answer was relevant to the review.
80 Furthermore, I do not think that the issue in the present case, or the use made of Mr Khalid’s failure to mention certain things, turns upon any notion of ‘omission’ of the kind which was relied upon by the Minister in argument.
…
94 In the present case the information constituted by the questions to be posed to Mr Khalid and Mr Abbas, and their responses, is not correctly described as ‘the absence of evidence’. The whole exchange with each of them was properly to be seen as ‘information’. It was important and necessary that the whole of the exchange be disclosed. Otherwise the appellant was denied part of the information which s 424A guaranteed him.
The requirement to provide the correspondence is significant; in the present case, the Tribunal sent a letter to DFAT Canberra by email, on 14 July 2008. It contained an underlined statement [reproduced in bold below] (CB126) as follows:
We appreciate that this is unusual and your response would be greatly appreciated, even if it is only to confirm your previous response.
The Tribunal received a response from DFAT just three days later, on 17 July 2008 (CB143). That response stated:
Post confirms that we have nothing further to add to our 19 May response to questions contained PAK33566
The Applicant, had he been provided with the information, could have questioned the nature of the invitation sent to the Tribunal, which appears to indicate, by way of underlining, that the response sought was the same given on 20 May 2008.
The Applicant could also have questioned whether the enquiries requested of the Ali Abad Hospital and the Afghan Consulate General in Quetta, were actually undertaken, as the response merely states that the post had nothing further to add (not that it complied with the request – and there is no evidence in the court book to show that those enquiries were made), and given that the invitation was emailed to DFAT Canberra on 14 July 2008 and a report was released to the Tribunal on 17 July 2008; the post in Islamabad had to be forwarded that request from DFAT Canberra, and then the post would have to make the required enquiries requested of it to those third parties and report to DFAT Canberra, who would then prepare the report released to the Tribunal.
What the Tribunal did do was to send the Applicant some information received from the previous request before it received the 17 July 2008 response, and it did not send the response from DFAT dated 17 July 2008 to the Applicant. This was not sufficient to comply with s.359A.
In relation to ground 5, the applicant notes that the decision of the Federal Court in SZIAI v Minister for Immigration [2008] FCA 1372 is the subject of an appeal to the High Court. In the meantime, I am bound by the decision and the applicant relies in particular upon the reasons of his Honour Flick J at [26]-[29]. The applicant relevantly submits:
The Tribunal also had a duty to enquire of DFAT whether it made the request … to the Ali Abad Hospital in Hazara Town, Quetta and Afghanistan’s Consulate General in Quetta asked of it by the Tribunal on 14 July 2008, how the request was made and what the response actually was. All that the Tribunal received, on 17 July 2008, was a statement that there was nothing further to add to the correspondence of 19 may 2008. That statement did not confirm that the requests were actually made.
The Tribunal failed to make a telephone call to a person that the Applicant stated took his mother’s body to Afghanistan, when the number was provided to the Tribunal for that purpose (CB150, CB156). The circumstances are on par with those in SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 at [26] to [29], per Flick J.
The Tribunal was aware that the information related to a critical issue, being the death of the Applicant’s mother, and it also knew that the information was readily available, or ought to have so known. In those circumstances, it had to make the enquiries set out above.

The Minister makes the following submissions in relation to ground 1:
Particular (i): The Applicant refers to the terms of reg. 1.14(b) of the Migration Regulations 1994 (Cth) (the “Regulations”) and argues that the Tribunal fell into error by failing to take into account whether reg. 1.14(b) was satisfied because the Applicant's mother was either permanently incapacitated or of unknown whereabouts.
The Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27 at [61]; see also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [30]-[32].
The only claim made by the applicants was that both of their parents were dead: see CB 185 at [17] (Tribunal Decision); CB 163-164, 173 (submissions of Applicant's migration agent). There was no evidence placed before the Tribunal that suggested that the applicants' mother was either incapacitated or was of unknown whereabouts. The Tribunal was therefore under no obligation to consider whether these criteria had been satisfied.
Particular (ii): The Applicant claims that the Tribunal did not consider or have regard to the statutory declaration of Hakimi Mohammad Isa sworn 4 August 2008 (the “Isa Declaration”): CB 146.
The Tribunal expressly refers to the Isa Declaration in its reasons for decision, setting out the relevant portions of the Isa Declaration in full: CB 192 at [47]; see also further reference, CB 197 at [56]. It is therefore apparent that the Tribunal was cognisant of the Isa Declaration and had regard to the Declaration when reaching its determination.
The nub of the Applicant's complaint appears to be that the Tribunal did not expressly make a finding rejecting the veracity of the Isa Declaration. However, the Tribunal is not required to refer to every piece of evidence and every contention made by an applicant in its written reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]; see also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
Inconsistent evidence had been given by the applicants regarding the circumstances in which the Applicant learned of the mother's death and the place at which their mother had been buried: CB 198 at [61]-[62]. Those inconsistencies were sufficient to cause the Tribunal to fail to reach the requisite level of satisfaction that the applicants' mother had, in fact, died: CB 198 at [62].
The Isa Declaration was provided after the hearing in an effort to explain away those inconsistencies. The deponent, Mr Isa, purported to be a “witness” to the death of the applicants' mother, yet the nature of his involvement is not explained and appears only to have been his presence in Pakistan at the same time as the applicants' mother passed away: CB 146; see also description of the evidence by the migration agent at CB 144.
The references in the Tribunal's decision to the Isa Declaration demonstrate that the Tribunal considered the Isa Declaration and carried out its statutory duties under the Act. Further or in the alternative, there was no obligation on the Tribunal to make an express finding regarding the Isa Declaration, having regard to the Tribunal's clearly expressed reservations regarding the reliability of the applicants' evidence and the indirect nature of the evidence contained in the declaration: see e.g., SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 at [71].
Particulars (iii) and (iv): The Applicant claims that the Tribunal failed to take into account the Power of Attorney (Death Certificate) document: CB 174-177. In particular, the Applicant complains that the Tribunal failed to take into account that the document had been authenticated by the Afghan Government as being properly registered by the Department of Foreign Affairs in Kabul.
The Tribunal expressly referred to the fact that the Power of Attorney had been authenticated in its reasons for decision and therefore considered this evidence in reaching its determination: CB 196-7 at [53].
Moreover, the Tribunal's concerns regarding the weight to be given to the document were not related to whether it was authentic, but rather whether the information contained in the document was based upon hearsay evidence given by persons in Afghanistan who had not witnessed either the death or burial of the applicants' mother: see CB 197 at [58]; s.359AA letter at CB 129. The fact that the document was a duly authenticated official document was therefore not relevant to whether the Tribunal should accept that the information it contained was accurate.
Particulars (v)(a) and (b): The Applicant submits that the Tribunal failed to take into account that the Imam's Confess letter was an eye witness account of the burial of the applicants' mother in Afghanistan and otherwise failed to take into account the Confess letter from Bakht Nisa Sha Gul Doulatshahi: CB 165-166.
The Tribunal expressly refers to these Confess letters and gives detailed and logical reasons for determining that they should be given no weight: CB 197-198 at [58]. The concerns raised by the Applicant amount to a request for merits review of the Tribunal's findings and should be rejected.
In oral submissions, counsel for the Minister conceded that this was not a “poisoned well” case but submitted that the Tribunal followed the approach identified as the correct approach in relation to corroborative material in SZDGC. In relation to ground 2, the Minister relevantly submits:
Particular (i): The Applicant claims that the Tribunal was in breach of ss.359(2), 359(3) and 359B of the Act, as the invitations to provide information dated 18 April 2008 and 14 July 2008 were sent to DFAT, instead of to the Ali Abad Hospital in Hazara Town, Quetta, or to Afghanistan's Consulate General in Quetta.
The Applicant relies upon a passage from the judgment of Buchanan J in SZKCQ v Minister for Immigration and Citizenship (2008) 170 FCR 236 at [74] (“SZKCQ”). Importantly, this passage is obiter dicta. Buchanan J, with whom Stone and Tracey JJ agreed, expressly stated that the issue considered in paragraph [74] of his Honour's judgment arose belatedly, that the respondent had not had an adequate opportunity to deal with the argument and that it was not necessary for the Court to decide the issue: SZKCQ per Buchanan J at [75]; per Stone and Tracey JJ at [6].
When the matter is considered from first principles, it is apparent that the Tribunal did not breach s.359 by addressing its invitations to provide information to DFAT rather than to the Hospital or the Afghani Consulate General in Quetta. With respect to the invitation dated 18 April 2008 (CB 102-3), this consisted of an initial request for information from DFAT. It therefore did not satisfy the description of an invitation for “additional” information which would trigger the requirements of s.359(2), and therefore ss.359(3) and 359B: SZLTR v Minister for Immigration and Citizenship [2008] FCA 1889 at [33].
In relation to both the invitation dated 18 April 2008 and the invitation dated 14 July 2008, the Tribunal was not seeking to make direct contact with either the Hospital or the Consulate General, but rather was requesting DFAT to make enquiries of these organisations, being the department best equipped to obtain the information requested. The “person” for the purposes of s.359(2) was therefore DFAT, and not the organisations which were the subject of the Tribunal's request.
The matter can be tested this way. If “person” was considered to be, for example, the Consulate General in Quetta rather than DFAT, then the Tribunal would be required to directly correspond with the Consulate General, despite the inappropriateness of the Tribunal having direct relations with the diplomatic corps of another country. The Tribunal would also be required to determine the appropriate wording of an invitation sent directly to the Consulate General, which would contain a strict time limit within which the Consulate General would be required to respond.
Moreover, if the Applicant's argument was accepted it would require “information”, as used in s.359 of the Act, to be restricted to “information” directly within the knowledge of the person to whom the invitation is issued, and would exclude information obtained by a person by enquiries from others, even though the identity of those other persons is not known by the Tribunal in advance of issuing the invitation. Such an interpretation of s.359 of the Act does not conform with either the wording or the purpose of the section, which is to provide the Tribunal with a broad discretion as to how and from whom it will obtain information.
The proper construction of s.359 is that the Tribunal may issue invitations to DFAT to give information, which information DFAT has obtained from individuals, organisations or consulates in other countries. To construe s.359 otherwise would be to place an unwarranted limitation upon its express wording: see Owners of “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404 at 421.
Further, counsel for the Minister, in oral submission, adopted the following submissions by the Minister in SZMDI v Minister for Immigration [2009] FMCA 103:
SZKTI was not concerned with a request to DFAT. The first respondent notes that in SZLTR v MIAC [2008] FCA 1889, Siopis J, for reasons stated at [33]-[34], seemed inclined to the view that section 424(2) does not have application to requests of DFAT. His Honour seemed to suggest that section 424(2) may be limited to circumstances where the recipient of an invitation has already supplied information to the Tribunal in relation to the review and he or she has provided his address to the Tribunal, or is able to be handed the invitation personally[3]. His Honour did not, however, need to decide the point (see [35]).
Certainly, in this case, there could be no doubt that the recipient of the request would have appreciated its authenticity and purpose.
The first respondent (formally and protectively) submits that SZKTI, SZKCQ and SZLFX[4] were wrongly decided – acknowledging, of course, that this Court is bound by them. Also formally and protectively, the first respondent submits that section 424(2) does not in any way limit the availability of section 424(1) and that it is, in any case, open to the Tribunal to use section 424(1) when it is seeking additional information from a person. It does not have to use an invitation under section 424(2), which, if used, can ultimately trigger the operation of section 424C or (if the recipient is the applicant) section 425(2) or (3).
Further, the first respondent submits that even if section 424(2) was engaged, and section 424(1) was not available as a source of power, no jurisdictional error would in any event arise through any non-observance of section 424(3) and /or 424B if (as here) there was no reliance on section 424C and /or section 424(2) and (3).
[3] His Honour referred to MIMIA v Sun (2005) 146 FCR 498 – concerned with section 359 of the Act and not referred to in SZKTI or SZKCQ – pointing in a different direction from SZKTI and SZKCQ and holding that the Tribunal was not precluded from obtaining additional information from an applicant other than by formal invitation under section 359.
[4] which followed and applied SZKCQ
In relation to ground 3, the Minister concedes that the Tribunal fell into jurisdictional error but submits that the Court should, in its discretion, refuse to grant relief having regard to the circumstances of the breach. The Minister submits:
The Applicant responded to the invitation to hearing on 22 April 2008, only one day after the invitation to hearing was received and well-within the statutory time limit: CB 107-108. In his response to the invitation, the Applicant gave no indication that he wished the Tribunal to obtain oral or written evidence from any other persons: CB 107-108. The Applicant later determined that he did wish oral evidence to obtained from the visa applicants, which request was made during the hearing and was acceded to by the Tribunal: CB 189 at [39].
The evidence that is before the Court therefore demonstrates that any failure by the Tribunal to comply with s.361(1)(b) had no effect on the Applicant's ability to advance the evidence that he wanted to advance and to present his case: Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84; SZMQE v MIAC (2008) FMCA 1474. In these circumstances, any jurisdictional error on the part of the Tribunal did not cause any practical injustice to the Applicant and relief should be denied.
In oral submissions, counsel for the Minister noted that the Full Federal Court decision in SZIZO v Minister for Immigration [2008] FCAFC 122 is on appeal before the High Court in relation to the principles relevant to the exercise of discretion, particularly in circumstances where there was no apparent prejudice to an applicant. Counsel noted that the applicant’s migration agent responded promptly to the hearing invitation before the notice period had expired. The agent attended the Tribunal hearing and suggested that the Tribunal take evidence by telephone from the eldest two of the review applicant’s siblings (Tribunal decision at [39], CB189). The adviser also suggested a further telephone enquiry (which was not pursued) after the hearing, apparently in an attempt to deal with the Tribunal’s concern about inconsistencies with the evidence. The Minister submits that there was no prejudice.
In relation to the remaining particular in ground 4 the Minister submits as follows:
Particular (iii): The Tribunal provided the Applicant with a copy of the relevant portion of the Tribunal's request to DFAT for information dated 18 April 2008 and DFAT's responses to that request dated 22 April 2008 and 20 May 2008: see CB 131-135. The Applicant's complaint is that the Tribunal did not provide the Applicant with copies of the subsequent correspondence with DFAT, consisting of a request from the Tribunal to DFAT dated 14 July 2008 and response from DFAT dated 17 July 2008: CB 126-127 (request); CB 143 (response).
The Applicant argues that there was a significant difference between the first request issued by the Tribunal on 18 April 2008 and the subsequent request issued on 14 July 2008, due to the inclusion of the following statement in the letter of 14 July 2008:
“your response would be greatly appreciated, even if it is only to confirm your previous response.”
The Applicant claims that the underlined words appeared to indicate that the Tribunal was seeking from DFAT the same response as was given on 20 May 2008. A better interpretation of the Tribunal's statement is that it was seeking to elicit a response from DFAT, even if they had no information to add to what had already been provided. The letter of 14 July 2008 therefore contained no additional content of any significance, and the Tribunal was not required to take any further steps to comply with s.359A, having regard to the information already provided in its s.359AA letter issued on 16 July 2008.
Similarly, DFAT's response of 17 July 2008 confirmed that it had “nothing further to add to our 19 May response”: No reference was made to DFAT's further response in the “Findings and Reasons” portion of the Tribunal's reasons for decision, because it provided no additional information upon which the Tribunal was seeking to rely when affirming the decision under review.
The request made by the Tribunal to DFAT dated 14 July 2008 and DFAT's response dated 17 July 2008 did not contain any additional “information” to what had already been notified in the s.359AA letter dated 16 July 2008. The Tribunal was not required to issue a further notice with respect to their contents.
In oral submissions, counsel for the Minister adopted a proposition from me that the second approach by the Tribunal to DFAT on 14 July 2008 (CB126) appears to be a matter of form rather than substance as an attempt by the Tribunal to ensure that it did not breach s.359 of the Migration Act, having regard to the then recent decision of the Full Federal Court in SZKTI.
Finally, in relation to ground 5, the Minister relevantly submits:
It is well-established that the Tribunal has no general obligation to initiate enquiries or to make out an applicant's case for him or her: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ; VCAK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 459 at [27].
The only recognised exception to this rule is where there has been “a failure by a decision-maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available”, such that the decision may be characterised as satisfying the Wednesbury test of unreasonableness: see Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [63] per Kenny J.
…
Particular (iii): The Applicant claims that the Tribunal ought to have called a telephone number in Afghanistan to confirm that the Applicant's mother's body was taken to Afghanistan. The precise statement made in the Applicant's letter to the Tribunal was as follows (CB 156):
The person who took my mother's body to Afghanistan he is in Afghanistan now but he does not have a telephone.
If MRT would like to talk to him on the phone he will be able to answer your questions.
This is his telephone number
…
No information was provided regarding the identity of the individual, where the individual lived, or what his precise role was with respect to transportation of the mother's body. Having regard to the Tribunal's concerns regarding inconsistencies in the applicants' evidence and reliance upon fake documents, it was entirely reasonable for the Tribunal not to call this number in order to speak with an individual whose identity was unknown and who had not previously provided a statement to the Tribunal. For these reasons, the case is distinguishable from SZIAI v Minister for Immigration and Citizenship (2008) 104 ALD 22 (special leave granted, [2009] HCATrans 28), and no jurisdictional error has been demonstrated.
Particular (iv): The Applicant claims that the Tribunal ought to have made enquiries to DFAT to determine the meaning of DFAT's response to the Tribunal's follow-up request on 14 July 2008 and to find out whether the requests were actually made. There was no reason for the Tribunal to believe that DFAT had not responded properly to its request of 14 July 2008 and no issue of critical importance to which any such enquiries would have related.
In oral submissions, counsel for the Minister noted that the request to telephone the unnamed person (who might have been the person named in other evidence as Kadim) was not put in the context of a request for a further hearing and that the Tribunal may not have been able to accede to the request in the absence of a hearing consistently with s.359 of the Migration Act. Counsel also submitted that there was no reason for the Tribunal to follow up information received from the Department of Foreign Affairs and Trade and adopted a statement by me that it was for the Tribunal to afford whatever weight it thought appropriate to the information obtained from that Department.
In reply, counsel for the applicant noted that the mere reproduction of evidence in the Tribunal’s reasons did not establish that the evidence had been considered and that the statutory declaration by Mr Isa (who was effectively an eyewitness to the asserted death of the applicants’ mother) was not mentioned in the critical passage in the Tribunal’s reasons at [58] (CB197-198). Counsel further emphasised that the Court could not be sure that there was no prejudice arising from the admitted jurisdictional error by the Tribunal and that the prompt response to the hearing invitation by the applicant’s agent was of no particular significance. In relation to ground 5, counsel submitted that it was significant that the person that the Tribunal was asked to contact was effectively an eyewitness to the asserted death of the applicants’ mother.

Reasoning

The Minister concedes jurisdictional error by the Tribunal in relation to the hearing invitation. Ground 3 in the further amended application is therefore established. The Tribunal failed to notify the review applicant that within seven days after being notified under s.361(1) the applicant could give the Tribunal written notice that the applicant wanted the Tribunal to obtain oral evidence from a person or persons named in the notice.
The question is whether the Court should withhold relief from the applicant in the exercise of discretion. I reject the Minister’s submission that the applicant(s) suffered no prejudice as a result of the Tribunal’s error. In this case, the Court cannot be satisfied that the visa applicants (and the review applicant) were not prejudiced by the Tribunal’s breach. First, the agent responded hurriedly to the hearing invitation. There may have been several reasons for that, but one of them could well have been the short time remaining for a response at the time the invitation was faxed to the agent (CB99). It is possible that, if more time had been provided, the agent might have given a more considered response, identifying as witnesses the two siblings identified during the course of the hearing and the additional person identified after the hearing (who was not contacted). That additional person was allegedly an eyewitness to the death of the applicant’s mother and his evidence could have been important. The review applicant may have been in a better position to present his siblings as supporting witnesses if they had been personally present rather than having them contacted during the course of the hearing without notice by telephone. As matters turned out, the evidence obtained by telephone was problematic and inconsistent with the review applicant’s own account, which assumed credibility significance. In the circumstances, real and significant prejudice to the applicants cannot be ruled out. I will not withhold relief in the exercise of discretion.
It is strictly unnecessary to consider the other grounds of review. However, I do not consider that ground 1 has been established. The Tribunal dealt with the documentary evidence in the following way (CB197-198):
Documents from Afghanistan stating the visa applicants’ mother died
The first document from the People’s Representative in assembly of Jaghori district, Mr Sanayee states the applicants parents died in October 2004. The Tribunal finds this is different from the evidence at hearing in which the review applicant, the applicant sister and applied brother stated she died in 2005. This leads the Tribunal to not give any weight to this document.
The second document is translated as a document entitled ‘Power of Attorney Certificate’ from people in Afghanistan testifying that the applicant’s mother died in Pakistan. At hearing, the Tribunal asked the review applicant how people in Afghanistan knew that his mother was dead. He stated his mother’s body was taken back to Afghanistan, however when asked, the applicant sister and brother stated she was buried in Pakistan. The Tribunal finds these two answers are inconsistent. The review applicant’s explanation at hearing for the inconsistency was that his siblings were too young to participate in the unreal, and their neighbours had arranged for their mother to be buried, however when pressed, the review applicant did not tell the Tribunal who told him that his mother was buried in Afghanistan. The Tribunal finds that at hearing, the review applicant was unable to provide details at hearing such as who told him that his mother was buried in Afghanistan. In addition, the Tribunal considers that the review applicant did not provide a plausible explanation as to why his sibling’s answer was different because the application states … was born on 1 January 1990 (and would have been around 16 when his mother died) and … was born 1 January 1989 (and would have been around 17 when her mother died). The Tribunal has considered the document Power of Attorney and the four statements provided after hearing from m Juma Rasooli, Qudratullah Nasiri, Haji G Mohammad and Bakht Nisa sha Gul Doulatshahi stating that the applicants’ mother had died and the body was transferred to Afghanistan however given its concerns with the review applicant’s inability to state at hearing who had told him that his mother was buried in Afghanistan and given the applicant’s oral evidence that their mother was in fact buried in Pakistan then it does not place any weight on these documents.
Documents from Pakistan stating the applicants’ mother died
The Tribunal asked DFAT what procedures Afghans in Pakistan would go through to produce evidence that someone had died in Pakistan. DAFT stated that death certificates were issued by hospitals, that those certificates go to the ministry of foreign Affairs of Pakistan or its camp offices for attestation and are then attested by the Afghan Diplomatic Missions in Pakistan. The Tribunal also asked DFAT to make enquities with the Afghan Consulate General in Quetta to ascertain whether the letters lodged with this application and allegedly written by them were in fact issued by the First Secretary. DFAT advised that the Afghan Consulate General in Quetta advised in writing that the letters submitted had not been issued by the Consulate General and were fake. In the Tribunal’s opinion, the applicants have been given sufficient opportunity to comment on this information and have not provided anything which would lead the Tribunal to conclude that these documents allegedly from the Ministry of Foreign Affairs of Pakistan are genuine. Accordingly, the Tribunal finds that these documents are fraudulent and does not give these documents any weight.
Whether the applicants’ mother is dead
The Tribunal has considered the attestation from the Ali Abad Hospital in Quetta Pakistan however, despite trying it has not been able to test this document. Given that it has found that some of the documents presented in this case have been fraudulent and another document to be inconsistent with the parties own evidence, then it is not prepared to given any weight to this untested document. Accordingly, it has relied upon the other evidence available to it in order to assess this claim.
At hearing the review applicant stated that his friends told him his mother had died in October 2005, however he also stated she went to Pakistan in November 2005. The Tribunal finds this is illogical. When this was put to him at hearing, the review applicant stated he came to know his mother had died through friends, and he also stated he did not remember when she had died. However the applicant sister initially stated her mother died in 2005 and she told the review applicant she had died at the time of her death. When, however the applicant sister was told the review applicant stated his friends told him, she stated that the first day the review applicant’s friends told him and later on she told the review applicant.
The Tribunal finds that the applicant sister’s statement is inconsistent with the review applicant’s evidence which was that he did not know when his mother died and that his friends told him in October 2005. The Tribunal also finds that it would be reasonable for the review applicant to remember when his mother died if the applicant sister told him at the time of her death. This and the inconsistent evidence in relation to where their mother was buried leads the Tribunal to conclude that it is not satisfied that the applicants’ mother has died. Whilst the Tribunal has sympathy for the applicants presumably difficult situation in Pakistan, this does not overcome the fact that the Tribunal is not satisfied that the visa applicants cannot be cared for by either of their parents because each of them is dead and therefore they do not meet the requirement of r.1.14(b) and do not satisfy clause 117.211.
Two things may be said about that consideration by the Tribunal. First, it was manifestly a reasoned examination of the documents referred to. The Tribunal engaged in an active intellectual process in considering the documents. Secondly, this was not a case of the Tribunal ignoring corroborative evidence after having made an adverse credibility assessment. This was a case of the Tribunal acting correctly by considering corroborative documents as part of the assessment of the credibility of the applicants’ claims. I see no error in that approach. It is true that the statutory declaration by Mr Isa (reproduced on CB146) did not feature in the Tribunal’s reasoning process but, given that that declaration was produced in response to the Tribunal’s credibility concerns put at the hearing and was no more than a series of assertions by the author, the Tribunal was entitled to take the view (as it apparently did) that the statutory declaration did not allay the Tribunal’s concerns.
As to ground 2, it would be prudent not to express any considered view in advance of a decision of the Full Federal Court in SZLPO. However, I am attracted to the obiter dictum of his Honour Siopis J in SZLTR at [33]-[34]:
In my view, there is some doubt that s 424(2) has application to the communication made by the Tribunal to DFAT in relation to the appellant’s status in the Awami League. Section 424(1) gives the Tribunal a general power to "get" information without prescribing the process by which it may "get" that information. By contrast, s 424(2) provides for a specific process. It is initiated by the Tribunal issuing an invitation. The invitation must be delivered by a means prescribed by s 441A and it must ask the recipient to give the Tribunal "additional" information. The use of the word "additional" to qualify the information that is sought, and the fact that the provisions of s 441A contemplate that the invitation is to be delivered to the recipient personally or to an address which the recipient has already provided to the Tribunal (ss 441A(3), (4) and (5)), are indications that s 424(2) has application only in limited circumstances. Those circumstances would be where the recipient of the invitation has previously given information to the Tribunal in relation to the review then being conducted by the Tribunal, and he or she has provided his or her address to the Tribunal, or is able to be handed the invitation personally. There is nothing to suggest that these circumstances were present in this case in relation to DFAT.
Further, it appears that neither of the Full Courts in SZKTI and SZKCQ were referred to the case of Minister for Immigration & Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201; (2005) 146 FCR 498 (Sun). In that case the Full Court dealt with the equivalent provisions in the Act which apply to reviews by the Migration Review Tribunal. In Sun, the Full Court construed those sections as not precluding the Tribunal from obtaining additional information from an applicant by a means other than the formal invocation of s 359 of the Act. The Full Court held that the consequence of the Tribunal invoking the formal process was that the provisions of s 359C were enlivened.
I also do not feel the need at this stage to resile from the views I expressed in SZBQS v Minister for Immigration [2008] FMCA 812 and my observations in SZMDI at [10].
There is no substance to the asserted breach of s.359A of the Migration Act. The plain purpose of the second letter to DFAT was to correct what the Tribunal feared might have been a breach of s.359 of the Migration Act in its initial request. The second request to DFAT was not a request for additional information. It was expressed to be a “resubmission” of the earlier request in terms compliant with s.359 in consequence of the decision of the Federal Court in SZKTI. The request emphasised that a response was appreciated “even if it is only to confirm your previous response” which emphasises that no additional information was anticipated. The Tribunal did not have to disclose to the applicant that it feared that its first approach to DFAT might not have been compliant with s.359 and there might have been some legal barrier in the way of consideration of the response received. That was not “information” that might be a reason or part of the reason for affirming the decision of the delegate. The second request to DFAT was written as a matter of form and there was nothing in it of substance in addition to the initial request. Neither was there any new information in the response received. The Tribunal was entitled to take the risk that some additional information might be received in response to the second request that would have to be disclosed to the applicant. As matters turned out, that did not occur.
I also reject the fifth ground of review. First, while the applicants might have been prejudiced by the Tribunal’s failure to contact the person identified after the hearing as the person who took the applicants’ mother to Afghanistan, that is addressed adequately in relation to the issue of discretion. There was, in my view, no obligation on the Tribunal to telephone an unnamed person who may or may not have been the same person who allegedly took the applicants’ mother’s body to Afghanistan. In that regard, this case is distinguishable from SZAIA v Minister for Immigration [2008] FCA 1372 where the person to be contacted was a known person and where it was apparent that the additional information likely to be obtained could be determinative. Further, no additional hearing had been requested and an approach by telephone in the absence of a hearing would have been problematic in terms of the Tribunal’s obligations under s.359. The Tribunal had not been given an address at which it might communicate with the person in writing.
As to the DFAT information, it was a matter for the Tribunal to attach what weight it considered appropriate to the information obtained from DFAT. It was unnecessary for the Tribunal to interrogate DFAT about the manner in which DFAT dealt with the Tribunal’s enquiry.
I will order that the applicant receive relief in the form of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 20 March 2009