Minister for Immigration and Citizenship v WZANC

[2010] FCA 1391

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v WZANC [2010] FCA 1391

Citation:		Minister for Immigration and Citizenship v WZANC [2010] FCA 1391
Appeal from:		WZANC v Minister for Immigration and Citizenship [2010] FMCA 274
Parties:		MINISTER FOR IMMIGRATION AND CITIZENSHIP v WZANC and REFUGEE REVIEW TRIBUNAL
File number:		WAD 116 of 2010
Judge:		SIOPIS J
Date of judgment:		13 December 2010
Corrigendum:		24 December 2010
Catchwords:		MIGRATION - appeal - application for a protection visa refused by delegate of the Minister - the delegate’s decision was affirmed by the Tribunal - the Tribunal’s decision was quashed by a consent order of the Federal Magistrates Court - the reconstituted Tribunal affirmed the delegate’s decision - the reconstituted Tribunal had regard to the respondent’s claims and evidence before the Tribunal as initially constituted - a summary of those claims and evidence was included in the reasons for decision of the reconstituted Tribunal - whether the reconstituted Tribunal fell into jurisdictional error.
Legislation:		Migration Act 1958 (Cth) ss 414(1), 424A
Cases cited:		Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291 MZXRE v Minister for Immigration and Citizenship (2009) 176 FCR 552 Hadchity v Minister for Immigration and Citizenship (2010) 266 ALR 579 SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1
Date of hearing:	11 August 2010
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	49
Counsel for the Appellant:	Mr P Hannan
Solicitor for the Appellant:	Australian Government Solicitor
Counsel for the First Respondent:	Mr J Cameron
Counsel for the Second Respondent:	The second respondent entered a submitting appearance.

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v WZANC [2010] FCA 1391

CORRIGENDUM

1.Paragraph 46 of the Reasons for Judgment should read “The appeal is allowed.”

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        24 December 2010

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 116 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant

AND:

WZANC
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	13 DECEMBER 2010
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The matter is remitted to the Federal Magistrates Court for the purpose of the Federal Magistrates Court determining grounds 1.2, 1.3 and 1.4 of the amended grounds of review.

3.The question of costs is reserved to a date to be fixed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 116 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant

AND:

WZANC
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	13 DECEMBER 2010
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The first respondent (the respondent) is a citizen of Pakistan who arrived in Australia on 4 November 2003 on a business working visa.  After his arrival in Australia, the respondent spent time in Perth, Adelaide and Bunbury.  On 19 October 2007, almost four years after he arrived in Australia, the respondent lodged an application for a protection visa.

2. The respondent claimed that he was a Pakistani whose language was Punjabi, and that he was a member of the Ahmadi Muslim faith.  The respondent claimed that he and his family faced constant discrimination in their village in Pakistan by the majority Sunni Muslim population who disliked Ahmadis and considered them to be non-Muslim.  The respondent said that he worked in his village as a farm labourer for a landlord named Noor Ahmad.  The respondent said that on one occasion he had urgent business with the landlord and went to a mosque to speak to him.  According to the respondent, as he entered the mosque, other Muslims who were praying, attacked and beat him, calling him “dirty” and then forcing him to clean the mosque.  The respondent claimed that in November 2002, he and his family started to build a mosque in their family’s front yard.  The respondent said that he and his family decided to build a mosque because they had nowhere else to pray.  As they began building the mosque, said the respondent, he and his family were threatened and attacked by a group of non-Ahmadi Muslims from his village.  The respondent said that he escaped the group and fled to Lahore, while his family members remained in the village and were badly beaten.  The respondent said that his brother reported the incident to the police but the police refused to intervene.  According to the respondent, the villagers then told his brother that if the respondent returned to the village they would kill him.

3. The respondent went onto claim that his father’s friend then arranged for him to meet an agent, who, for one million rupees, would provide the respondent with a passport and an Australian business working visa.  The respondent said that he sold the family’s farm in order to pay the agent.  Ten months later, said the respondent, the agent provided him with a passport and a working visa, and the following day, he and the agent flew to Australia arriving in Perth on 4 November 2003.

4. The respondent went onto say that shortly after arriving in Perth, he awoke to find that the agent had abandoned him, leaving a note advising the respondent that he no longer had a job arranged for him in Australia.  The respondent said that he then went to a mosque in Perth and asked for help.  There he met a person called “Ali”, who sent him to Adelaide.  The respondent said that four months after arriving in Adelaide, he was advised by Ali that his visa had expired.  The respondent was told not to tell anybody about his expired visa and the respondent continued to live and work in Adelaide for a year and a half.

5. Thereafter, the respondent moved to Bunbury where he lived and worked for two years.

6. As mentioned, on 19 October 2007, the respondent applied for a protection visa.  Some two months later, in December 2007, by telephone, an informer provided the Department of Immigration and Citizenship with information regarding the respondent.  The information was to the effect that the respondent was not an Ahmadi but a Sunni Muslim and that the respondent had fabricated his claims.  This information is referred to from time to time hereafter as the “dob-in” information.

7. On 18 January 2008, a delegate of the appellant conducted a telephone interview with the respondent.  During the course of that telephone interview, the delegate referred to the “dob-in” information which the department had received, and the respondent denied the truth of the information.  The delegate also asked the respondent, who was, at the time, in Bunbury, a number of other questions regarding the practise of his faith and his activities in Bunbury and Adelaide.

8. The delegate rejected the respondent’s claim on credibility grounds.  In short, the delegate found that the respondent’s lack of knowledge of the Ahmadi faith was inconsistent with the claims he made to have built a mosque and suffered persecution on the grounds of his faith.  The delegate also considered that the delay in applying for the protection visa was inconsistent with his claims to have suffered persecution.

   THE REVIEW BY THE TRIBUNAL AS INITIALLY CONSTITUTED

9. On 6 March 2008, the respondent applied to the Refugee Review Tribunal (the Tribunal) for a review of the delegate’s decision.  The respondent was represented by an agent, Mr Thomas, in relation to the review.  By a decision dated 23 June 2008, the Tribunal affirmed the decision of the delegate not to grant the respondent’s application for a protection visa.  The Tribunal rejected the respondent’s claim on credibility grounds.

10. The respondent then made an application to the Federal Magistrates Court for judicial review of the Tribunal’s decision.  The Federal Magistrate, by consent orders dated 14 October 2008, made orders quashing the Tribunal’s decision and directing the Tribunal to reconsider the respondent’s application for review of the delegate’s decision according to law.  In making the orders, the Federal Magistrate noted that the Tribunal’s jurisdictional error was its failure to consider an integer of the respondent’s claim.

    THE REVIEW BY THE RECONSTITUTED TRIBUNAL

11. For the purposes of conducting the review, on 20 October 2008, the Tribunal as reconstituted, wrote to the respondent advising him that his application was being reconsidered by the Tribunal, and inviting the respondent to submit any new documents or written submissions to the Tribunal for it to consider.  On 28 November 2008, the respondent’s agent submitted an eight page detailed submission to the reconstituted Tribunal.  The submission addressed, amongst other things, the credibility findings made by each of the delegate and the Tribunal as initially constituted.

12. On 1 December 2008 and on 4 December 2008, the respondent attended a hearing before the reconstituted Tribunal.  The respondent was accompanied, and represented, by his agent at the hearing.  The respondent and his wife gave oral evidence at the hearing.

13. At the commencement of the hearing, the reconstituted Tribunal stated that the hearing was a de novo merits review at which it would be assessing the case again in its entirety with a fresh perspective and without regard to the findings of the delegate or the “first Tribunal”.  Later, during the hearing, the Tribunal discussed with the respondent the evidence the respondent had given to the delegate and the evidence he had given during the review conducted by the Tribunal as initially constituted.  At the conclusion of that discussion, the reconstituted Tribunal then said:

    Okay.  All right, well that was basically what you put forward at the first Tribunal Hearing.  I’ll be making my own findings regardless of what that Tribunal previously concluded.  But I did want to make sure that I…understand what of that earlier evidence is in fact accurate.

14. By a decision dated 26 February 2009, the Tribunal as reconstituted, affirmed the decision of the delegate not to grant the respondent’s application for a protection visa.  The Tribunal’s decision was based on credibility grounds.  The Tribunal found that the respondent’s claims were invented, that he was not, in fact, an Ahmadi, that he had not been discriminated against and beaten for entering a mosque, that he and his family had not attempted to build a mosque in their front yard and that he was not persecuted because of it.  The Tribunal rejected all the claims made by the respondent.

15. At [35] of its reasons for decision, the reconstituted Tribunal stated:

    During the review by the Tribunal at first instance, the applicant gave evidence at a hearing and made various submissions.  The applicant’s claim and evidence are summarised in the decision of the Tribunal as previously constituted, at paragraphs [33]-[46], as follows.

16. Thereafter, the Tribunal set out verbatim an extract from the reasons for decision of the Tribunal as previously constituted.  That extract did not include the events which occurred after the hearing, nor did it include the findings and reasons of the Tribunal as initially constituted.

17. I refer to this matter because it is at the heart of the appeal.

18. At [38] of its reasons for decision, the reconstituted Tribunal set out verbatim the submission which had been sent to it by the respondent’s agent on 28 November 2008.

19. Further, in that part of its reasons containing “Findings and Decisions”, the reconstituted Tribunal, recorded, without comment, that at least some of the “dob-in” information had been put to the respondent at the hearing by the Tribunal as initially constituted.  The reconstituted Tribunal also referred to the fact that at the hearing before the Tribunal as initially constituted, the respondent had given evidence reflecting some basic knowledge of the Ahmadi faith.

    THE FEDERAL MAGISTRATE

20. The respondent applied to the Federal Magistrates Court on 18 March 2009, for judicial review of the reconstituted Tribunal’s decision.  The grounds for judicial review, as amended, were as follows:

    (a)The Tribunal failed to conduct a hearing de novo after the decision of the Tribunal which had conducted the first review, had been quashed by consent on the grounds of jurisdictional error.

    (b)The Tribunal failed to refer the so-called “dob-in” material to the respondent and his migration agent in compliance with s 424A of the Migration Act 1958 (Cth) (the Act), absent notification by the Secretary in accordance with the provisions of s 438(2) of the Act.

    (c)The Tribunal dismissed documentary evidence supporting the respondent’s claim to be a member of the Ahmadi faith and to have suffered persecution, without giving the respondent an opportunity to comment on the evidence and when there was no evidential basis for dismissing the evidence.

    (d)The Tribunal based its findings on errors of fact which were unsupported by any or any sufficient evidence.

21. The Federal Magistrate upheld the first ground of review.

22. The Federal Magistrate found that the Tribunal’s decision was affected by jurisdictional error because the Tribunal had relied on “irrelevant materials” from the review conducted by the Tribunal as initially constituted.  The Federal Magistrate, having referred at some length to observations made in the High Court decisions in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 and Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, observed at [69]-[73] of his reasons:

    In this case, it was simply not possible, permissible nor necessary for the Tribunal to deal with the Purported Decision.  But the Tribunal did so, reproducing in the Tribunal Decision the Tribunal’s earlier, but subsequently quashed, account of the factual claims made by the applicant directly from the Purported Decision.  Ultimately, the Tribunal relied upon a combination of that factual material from the Purported Decision, and material otherwise before the Tribunal, to assist it to arrive at conclusions with respect to the applicant’s credibility in relation to both the:

    a)reliability of the “dob-in” materials; and

    b)alleged illogicality or inconsistency of the applicant’s claims to be a member of the Ahmadi faith in Pakistan.

    Furthermore, by reproducing in the Tribunal Decision the Tribunal’s earlier, but subsequently quashed, account of the factual claims made by the applicant directly from the Purported Decision, it is not possible to safely conclude that the earlier account played no part in, or was disentangled from, the ultimate findings in the Tribunal Decision.  That is particularly so where it is apparent that the Tribunal has:

    a)not appreciated that the Purported Decision was quashed, not just “set aside”;

    b)treated and referred to the Purported Decision as a “decision”, when it was, by reason of the writ of certiorari, not a decision at all or ever.

    What the writ of certiorari in the October 2008 Order did was to quash the Purported Decision. Consequently, the Purported Decision was of no force or effect at all. It was therefore not possible for the Tribunal to read it, refer to it, or rely upon it. In doing so it relied upon irrelevant material, and committed jurisdictional error. Moreover, in doing so, it did not comply with the writ of mandamus directing the Tribunal to determine the matter according to law. Although in form it conducted a review as required by s 425 of the Migration Act, it did not conduct that review according to law because it referred to and relied upon the Purported Decision as if it had some force and effect at law, when it had none as a consequence of the writ of certiorari in the October 2008 Order.

    A Tribunal’s decision upon a review is to be made on the basis of the facts in that review, not some other or earlier review.  A review conducted in the ordinary way, which is what the Tribunal ought to have done here, would never include, or preserve, all or part of an earlier statement of reasons, here the Purported Decision, by the Tribunal because, ordinarily, there would be no earlier statement of reasons.  Moreover, where the statement of reasons, here the Purported Decision, has been quashed by certiorari, there is, at law, nothing for the Tribunal to read, refer to or rely upon.

    For those reasons, the Tribunal committed jurisdictional error by relying upon irrelevant material.  (Footnotes omitted.)

23. The Federal Magistrate concluded that it was not necessary to consider the other grounds of review which had been relied upon by the respondent.

    THE APPEAL

24. The notice of appeal refers to eight grounds. However, in essence, the Minister contended that the Federal Magistrate erred in making the findings referred to at [69]-[73] of his reasons, which are reproduced at [22] above.

25. The Minister contended that the fact that the reconstituted Tribunal incorporated into its reasons the impugned extract from the reasons of the Tribunal as initially constituted, was not inconsistent with, nor did it disable, the Tribunal from conducting a second hearing de novo.  The Minister contended that in conducting the review, the reconstituted Tribunal made its own findings on the evidence that was before it.

26. The respondent contended that the reconstituted Tribunal’s error was that its decision took into account the decision made by the first Tribunal, despite that decision having been quashed by the Federal Magistrates Court on 14 October 2008.  The respondent submitted that the quashing of the decision made on the initial review meant that the whole of the earlier process was to be treated as though it had never occurred.  This meant that it was simply not open to the reconstituted Tribunal to have regard to any of the material which was before the Tribunal as initially constituted, or to what was said during that hearing.  It could not take into account evidence given in the course of the hearing before the Tribunal as initially constituted.

27. In the case of SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291 (SZEPZ), the Full Court considered the nature of the review provided for in s 414(1) of the Act.

28. In that case, the applicant for a protection visa claimed that he would suffer persecution by reason of his actions as an activist for Hindu rights. In his oral evidence before the Tribunal, the visa applicant said that he had acted as a social welfare worker in Bangladesh for an organisation which was based in a particular temple in Sutrapur, Dhaka. The Tribunal then made inquiries from the Australian High Commission in Bangladesh as to the existence of the organisation and the temple referred to by the visa applicant. On receipt of the information from the High Commission, by a letter dated 9 April 2003, the Tribunal, pursuant to s 424A of the Act, wrote to the visa applicant asking for comments on the information which had been provided by the High Commission. The visa applicant’s migration agent responded to the Tribunal’s invitation by submitting a statutory declaration from the visa applicant, addressing the specific information provided by the High Commission.

1. After having considered the comments, the Tribunal rejected the visa applicant’s claim to have a well-founded fear of persecution and affirmed the delegate’s decision refusing the visa applicant a protection visa.

2. The visa applicant applied to the Federal Magistrates Court for judicial review.  By consent orders, the Tribunal’s decision was quashed and the Federal Magistrate ordered that the application for review be remitted to the Tribunal as differently constituted to be determined according to law.

3. On the remitter, the Tribunal as differently constituted, held a further hearing.  The information from the High Commission, the letter from the Tribunal of 9 April 2003, and the visa applicant’s statutory declaration were all before the reconstituted Tribunal.  After the hearing, the reconstituted Tribunal did not send a letter to the visa applicant for the purpose of eliciting comments on the information from the High Commission.

4. The reconstituted Tribunal affirmed the delegate’s decision. In its reasons for decision, the reconstituted Tribunal relied upon the High Commission information as a reason for affirming the decision of the delegate. Further, it relied upon the letter of 9 April 2003 which had been sent to the visa applicant by the Tribunal as initially constituted, as complying with the obligations on the Tribunal under s 424A of the Act, and the response made by the visa applicant to that letter.

5. Before the Full Court in the case of SZEPZ, the visa applicant argued that the review by the reconstituted Tribunal was a different review to the review which had been conducted prior to the first decision; and that it was, therefore, necessary for the Tribunal as differently constituted after the remitter, to again engage in the s 424A process in respect of the information provided by the High Commission.

6. The Full Court rejected this argument.  At [39], the Full Court observed:

   Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.

7. The Full Court went on to hold that, in relation to s 424A, in assessing whether information that the Tribunal considers would be the reason or part of the reason, for affirming the decision under review, the relevant state of mind is the state of mind of the particular person who comprises the review. However, it did not follow, according to the Full Court, that that particular person would need to reissue the letter which had been issued as part of the review process which had occurred before the impugned decision of the Tribunal as initially constituted.

8. The Full Court observed at [42]:

   So long as an applicant has been given information that the member of the Tribunal who is to make the decision considers would be the reason, or part of the reason, for affirming the decision under review and so long as the applicant understands why that information is relevant and has been invited to comment on the information, s 424A will be satisfied.

9. It is apparent from the decision of the Full Court that it does not follow axiomatically that, because a decision made by the Tribunal as initially constituted, is quashed, all steps which were taken by the Tribunal as initially constituted, as part of the review process, are of no force and effect and are required to be disregarded by the reconstituted Tribunal.  This is because the review process is an ongoing process which is not completed until a valid decision is made by the Tribunal.

10. Observations to similar effect were made by the Full Court in the case of MZXRE v Minister for Immigration and Citizenship (2009) 176 FCR 552 (MZXRE).  At [5]-[6], Rares J (with whom North J agreed) observed:

    [5] The word “rehear” should not have been used in the orders. The order should have used the word “hear”. The tribunal commences the process of a review of the delegate’s decision when a valid application for its review is made under ss 412 and 414 of the Migration Act 1958 (Cth) (the Act). By force of s 414(1) the tribunal must conduct a review of a valid application. If some jurisdictional error occurs in the process of a review, the decision arrived at will be quashed and the matter remitted to the tribunal to complete the conduct of the review in accordance with the procedures specified in the Act: SZEPZ v Minister for Immigration and Multicultural Affairs (2006) 159 FCR 291 at 299[39] per Emmett, Siopis and Rares JJ…

    [6]  The word “rehear” in the consent orders could be taken to suggest that whatever had been done by the tribunal had to be redone.  That would not have been correct…

11. These observations were cited with approval by Edmonds J in Hadchity v Minister for Immigration and Citizenship (2010) 266 ALR 579 at [27].

12. In SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1 at [37] (SZHKA), Gyles J (with whom Gray J agreed) observed:

    However, as presently advised, it is difficult to see an escape from the proposition that once an administrative decision is set aside for jurisdictional error, the whole of the relevant decision making process must take place again…

13. It is unnecessary to consider the relationship of those observations to the observations in SZEPZ and MZXRE, for the purpose of determining the issue in this appeal.  This is because in SZHKA, Gyles J went on to observe, at [37], in respect of his conclusion, set out above:

    Such a conclusion would not mean that what has taken place in the previous review cannot be taken into account in the second review if considered relevant.  The proceedings are administrative, not judicial, and the Tribunal can have regard to all relevant material, including a transcript of what took place at the previous hearing, subject to compliance with the statutory regime.

14. It was, therefore, open to the reconstituted Tribunal to have regard to the materials which had formed part of the review process prior to the impugned decision.  The Full Court in each of the decisions referred to above, accepted this to be the case.  Further, this question was not dealt with in any of the observations of the High Court which were referred to by the Federal Magistrate in his reasons.

15. It follows, therefore, that the Federal Magistrate erred in holding that the Tribunal had regard to irrelevant material and, so, fell into jurisdictional error by having regard to the evidence and claims made by the respondent before the Tribunal as initially constituted; and by including in its reasons, the summary made thereof, by the Tribunal thus constituted.

16. Further, it is apparent from the detailed reasons of the reconstituted Tribunal, that the Tribunal as reconstituted, made its own findings in respect of all of the evidence which was before it and embarked upon its own reasoning process in relation to the evidence.  In other words, the respondent had the benefit of a de novo hearing, and a reconsideration of his claims, by the Tribunal as reconstituted, in discharge of the Tribunal’s statutory functions and obligations.

17. I observe, parenthetically, that the jurisdictional error made by the Tribunal as initially constituted, was a failure to deal with an integer of the respondent’s claims.  There was no suggestion that the process engaged in at the hearing conducted by the Tribunal as initially constituted, was affected by jurisdictional error, or was otherwise unfair or flawed.  The respondent’s contention was that, it was the quashing of the decision of the Tribunal as initially constituted, per se, which rendered further reference to the materials before the Tribunal thus constituted, a jurisdictional error by the reconstituted Tribunal.

18. The first ground of appeal is dismissed.

    NOTICE OF CONTENTION

19. The first ground of the notice of contention does not properly comprise a point of contention, but rather is in the form of contrary argument to the matters raised by the appellant.  That ground fails for the same reason that the appellant succeeds.

20. However, grounds two and three of the notice of contention referred to the grounds of the review which formed part of the application for judicial review before the Federal Magistrate but were not considered by the Federal Magistrate.  Although the parties addressed argument to me in respect of each of these grounds of review, in my view, it is appropriate that the matter be remitted to the Federal Magistrate for the purpose of considering and determining the grounds of review.  In the absence of this course, the respondent is denied an appeal as of right, and an appeal court is denied the benefit of the reasoning of the trial judge.

21. Accordingly, the appeal is allowed and the matter is remitted to the Federal Magistrate to determine the three remaining grounds of review.

I certify that the preceding forty‑nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        13 December 2010