MZPAO v Minister for Immigration
[2007] FMCA 1954
•23 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZPAO & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1954 |
| MIGRATION – Visa – Review of Refugee Review Tribunal decision – notice – s.424A notice – husband and wife – procedural fairness. |
| Migration Act 1958, ss.360, s.424A |
| Antipova v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 584 SZBYR & Anor v Minister for Immigration & Citizenship [2007] HCA 26 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 SZGSI v Minister for Immigration & Citizenship [2007] FCAFC 110 |
| First Applicant: | MZPAO |
| Second Applicant: | MZPAQ |
| Third Applicant: | MZPAR |
| Fourth Applicant: | MZPAS |
| Fifth Applicant: | MZPAT |
| Sixth Applicant: | MZPAU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1187 of 2006 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 20 September 2007 |
| Date of last submission: | 20 September 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 23 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fernandez |
| Solicitors for the Applicant: | T.A Fernandez Solicitor |
| Counsel for the Respondent: | Mr Felman |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 25 September 2006 be dismissed.
The applicant shall pay the costs of the respondent fixed at $6,500 pursuant to Order 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1187 of 2006
| MZPAO |
First Applicant
And
| MZPAQ |
Second Applicant
And
| MZPAR |
Third Applicant
And
| MZPAS |
Fourth Applicant
And
| MZPAT |
Fifth Applicant
And
| MZPAU |
Sixth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants are a family that have come to Australia from Turkey seeking protection visas. The applicant and his family arrived in Australia on 23 October 1993. The applicants applied for protection visas in May 2001. The applicants were refused by the delegate and the applicants were unsuccessful in the first review application to the Tribunal. The applicants were ultimately successful on appeal to the Federal Court and the matter was remitted for hearing by the Tribunal. The applicants were again unsuccessful before a differently constituted Tribunal in August 2006. Whilst the application commenced in this Court in September 2006, it has had a difficult passage before the court.
I originally made directions for the matter on 20 October 2006 setting it down for a hearing in March 2007. The applicants were not in a position to proceed. The matter was adjourned with orders for them to file an amended application within 14 days. This was the first occasion that they had a lawyer, Mr Fernandez. The hearing commenced in
June 2007; however, it became apparent that a proper transcript of the hearing before the Tribunal was required. The matter was adjourned to July 2007 when it was part-heard but unable to be completed. It was again adjourned to the most recent hearing date when interpreters were not arranged through registry error before the matter was ultimately completed in the hearing phase on 20 September 2007.
Before the Tribunal, the claims related to persecution of the male first applicant, with the other balance of the applicants seeking a visa on the basis of their membership of his family. This was not an issue before the Tribunal. His claim as initially put was a fear caused as a result of his Kurdish ethnicity and attendances by family members at his home. He said he was imputed with collaborating with the PKK and therefore at risk of persecution by Turkish authorities. At his appearance before the first Tribunal, the applicant said that he was never involved in any Kurdish activities or Kurdish groups. At the second Tribunal hearing the applicant claimed that he had in fact supported the PKK.
After the hearings before the Tribunal, the member sent the applicant a notice pursuant to s.424A of the Act pointing out that the date that his passport had been issued was inconsistent with the sequence of events that he had given in evidence. Following this, a third Tribunal hearing was held as a result of a request that the second-named applicant be given an opportunity to give evidence (although she had not taken up this opportunity at the second Tribunal hearing). Her evidence was that her husband had been involved in distribution of flyers and newspapers and that her husband had forgotten to tell the Tribunal these things as he was forgetful.
Mr Fernandez, for the applicants, submitted that his argument related to two areas:
a)issues of procedural fairness; and
b)issues relating to the operation of s.424A.
Procedural Fairness
With respect to procedural fairness, Mr Fernandez pointed to exchanges which appear in the transcript. Mr Fernandez specifically stated that this was not put as an apprehended bias claim, but rather a claim that the Tribunal had failed to perform its functions of providing a proper hearing pursuant to the legislation.
A review of the transcript indicates that the proceedings before the Tribunal member were challenging. The applicant's wife regularly prompted him, a matter noted by the Tribunal member in the decision. At pp.17 to 18 of the transcript it is apparent that there had been a number of adjournments and the Tribunal member had become frustrated with the way in which the applicants were conducting themselves. The relevant passage in the transcript is as follows:
MEMBER: We’ve had three adjournments and one of them was specifically so that you could prepare a submission. You requested extra time in order to prepare a submission so if you want to get something to me, you know how the process works.
MR BRAKNESS: (Indistinct.)
MEMBER: And I’ve given you every opportunity to provide me with a submission. (To witness). As I said sir I will need to consider all the evidence I’ve heard today together with the material that’s on the file. I will then write my decision. The Tribunal will notify you when the decision is ready. You will be invited to a handing down of the decision but that’s only a formal process that takes a few moments. If you prefer not to come in, the decision will be sent to you by mail.
MR BRAKNESS: Before you finish can we have a break possibly?
INTERPRETER: May I just say something?
MEMBER: Yes?---They would know – our people would have no opportunity at school to learn Kurdish, when you spoke about the language that I learnt and then you saying that now that things are getting better and they still have no rights to learn Kurdish.
MEMBER: Look I only asked you just so I can see your level of knowledge of Kurdish. I know that a lot of Kurdish people don’t speak Kurdish at all. I’m aware of that. I just wanted to see your personal circumstances. I’m not suggesting you’re not Kurdish. Do you have a point you wanted to make Mr Brakness?
MR BRAKNESS: I think my point’s to speak to you and ask for a ten minute break.
MEMBER: Well look we’ve covered everything. I’ve asked the applicant whether he had anything else to say and he said, “No”. you indicated to me that the wife did not want to give evidence.
MR BRAKNESS: Yes and she wants to speak to him and then he may have something to say.
MEMBER: Well I’ve asked the applicant what he has to say. I’ve finished the hearing. I was about to walk out the door. He’s had that opportunity sir. I notice Mr Altintas whispered in your ear. You’ve had that opportunity.
MR BRAKNESS: Do you deny him the opportunity to speak to his wife? What’s ten minutes in the scheme of things?
MEMBER: Well sir, I’ve asked the applicant if he had anything else to add. I’ve given him the opportunity to tell me anything he wanted to say and now Mr Altintas whispers in your ear and who is only here as an observer, should not have been speaking to you.
MR BRAKNESS: (Indistinct.)
MEMBER: Well sir, I’ve heard the applicant’s evidence. He’s had every opportunity. I’ve asked him to tell me anything he wanted to say and he has simply indicated to me he doesn’t want to say anything. You haven’t indicated you want to speak to him as his adviser - - -
MR BRAKNESS: Now I am indicating – I’m indicating now he wants to say something else, but he wants ten minutes - - -
MEMBER: Ok he can say it now. Whatever he wants to say he can say it now.
MR BRAKNESS: He wants to speak to his wife first.
MEMBER: He can say it now. Go ahead sir. Go ahead? --- (Indistinct.)
MR BRAKNESS: He wants to speak to his – I can’t see the problem with breaking for ten minutes and letting him speak to his wife.
MEMBER: It’s the applicant’s evidence (To the witness) Go ahead, what do you want to tell me sir?
MR BRAKNESS: You allowed somebody to observe the hearing.
MEMBER: You had the opportunity - - -
MR BRAKNESS: You’re allowing somebody - - -
MEMBER: Mr Brakness you had the opportunity - - -
MR BRAKNESS: - - - to observe but you (indistinct) to discuss what happened - - -
MEMBER: - - - to present the applicant’s wife, who is the second applicant in this application to give witness evidence. That opportunity wasn’t taken. That wasn’t denied her. If she wanted to say something she could have said it.
MR BRAKNESS: She wants to speak to her husband.
MEMBER: She can speak to her husband. If her husband has something to tell me, he can tell me now. (To witness) Is there anything you want to tell me sir? --- (Inaudible response.)
MR BRAKNESS: Tell him you’re being denied natural justice – that you want to speak to your wife for ten minutes.
INTERPRETER: (Through interpreter.)
MEMBER: You can’t put words into the applicant’s mouth.
MR BRAKNESS: (Indistinct) I can, I just did.
MEMBER: Well you’re putting words into this applicant’s mouth? - - (Through Interpreter) Yes I should be given a right to speak to my wife.
MEMBER: You should be given a right to speak to your wife? What about sir?
MR BRAKNESS: He doesn’t now. She’s been observing the hearing and she’s - - -
MEMBER: I’ll tell you what, I’ll give you five minutes. I’ll give you five minutes, but bear in mind I have significant evidence already given by the applicant. I’ll give you minutes to take to your wife, starting now. I’ll wait in the room. I’m happy to wait in the room. You can go outside, or do you want me to leave and I will recommence the hearing at 11.29 with or without the applicant.
VOICE: The hearing is adjourned at 11.24 a.m..
Following the adjournment (which lasted for seven minutes) tension in the hearing clearly remained high as it continued:
MEMBER: Go ahead sir, what is it you wanted to say to me? - - - (Inaudible response.)
MR BRAKNESS: He’d like you to follow up two things. One is - - -
MEMBER: Mr Brakness – I asked the applicant, let him tell me what he would like to do. That you as his adviser, if you want to make another submission to me, I’m happy to hear from you too.
MR BRAKNESS: It’s not a submission I was just suggesting a couple of questions that would help.
MEMBER: Well let the applicant speak – I asked him a question? --- We just - you have said sir that you didn’t say anything – I didn’t say anything about PKK - - - Look, I’m sorry – stop there. The applicant’s wife is clearly whispering to the applicant. Please leave the court room. Thank you.
MR BRAKNESS: I think she was speaking to Miss (Indistinct) - - -
MEMBER: I don’t care who she was speaking to. I made it very clear I want her to sit here in silence.
MR BRAKNESS: (indistinct.)
MEMBER: I know what you’re trying to do Mr Brakness, please let the applicant say what he has to say? Go ahead sir, what was it you were saying? ---There used to be books and brochures and I would be (indistinct) about Kurdish, about Kurds, about PKK, I would distribute them.
Who used to bring you books? --- Friends coming from the (indistinct) and also PKK would – both sides would bring me things. PKK helped me to get out of Turkey with my visa and everything.
Why couldn’t you tell me any of this before the break and the discussion that you had? --- I couldn’t recall.
Is it that you couldn’t recall or it didn’t actually happen? --- No they are true, they are true, all these things happened, otherwise why?
If they happened, why couldn’t you tell me before? --- Because it’s been a long time. I can’t recollect things straight away. My memory isn’t good.
The second part of the transcript relied upon by the applicant shows these exchanges took place:
MR BRAKNESS: I think it’s a bit of a (indistinct).
MEMBER: I can’t make the case for the applicant, sir. I cannot make their case for them. I don’t know what you’re thinking unless you tell me what you’re thinking? --- Well, I’ll get your name. I’ll never forget this day really for the rest of my life. (Indistinct).
My name will be on the decision record when you receive it. Mr Brakness, is there anything else that we need to know. Anything you want to tell me --- (Mrs S) Can we have a five minute break sir, to have a final discussion and then come back in?
I find it extraordinary. I find it extraordinary. You have been to a second hearing. We haven’t had a long hearing. You’ve had an opportunity, It’s now six months since the last – sorry, Mrs S, would you like me to conclude what I’m saying and then answer or respond to what I’m saying or would you like to have a conversation without hearing what I have to say? That’s your choice. We have had a second hearing. You’ve asked for this hearing. I have allowed you to come to this hearing and I’ve asked you to tell me what you want to say and you are now wanting a five minute break. I find that extraordinary. You’ve had the opportunity today to tell me whatever it is that you want to tell me and you have. It’s hasn’t been a long hearing? --- Thank you very much for giving us this opportunity today but please can you give us five more minutes. I would appreciate it if we could have a small break.
You’ve had six months. You have had six months. Mr Brakness, what is five minutes going to achieve? --- Just we get nervous and – just we get nervous and we forget what to say or what - - -
Is there something you want to tell me, either of you, that you have not told me today? --- Can you allow us five more minutes to like have a break and we should sort of talk between us and see if we have anything.
You’ve had six months to talk between you? --- All I want is five minutes.
I’m sorry I will not grant that request. Mr S, is there something you want to tell me today but you haven’t had a chance to tell me? Anything on your mind at all, sir? --- (Mr S) when I came here last time I told you what I could remember.
Is there anything else you want to tell me? --- No.
Mrs S, is there anything else you want to tell me today that you haven’t had the opportunity to tell me you believe is relevant to your case? --- If we had a chance – if we could have a change to talk to each other maybe we could have reminded each other something and we could have told you but you didn’t give out that opportunity all we can do is just say thank you and go. All right. I’ll consider all of the evidence that’s on the file and I will make – Mr Brakness, did you have any closing comments?
Other complaints about the hearing process appear in the Court Book at pp.70, 72 and 82. At p.70 there is a letter from the solicitor for the applicant at that time expressing concern as to why a short adjournment was not granted before the end of the hearing, sent on 8 February 2006 before a further hearing was arranged. On 24 April 2006, the solicitor for the applicant wrote stating:
[The applicant] reiterates what he stated at the hearing, that he cannot accurately recall when he applied for his passport. He believes he was railroaded into committing himself to dates at the hearing, when he had made it clear he could not remember.
The applicant's wife subsequently forwarded a statutory declaration dated 21 April 2006, stating as follows:
[2]The Refugee Review Tribunal conducted a hearing regarding the application on 8 February 2006.
[3]I did not initially wish to give evidence at that hearing as it was my husband who was giving evidence about how he was at risk because he helped the PKK.
[4]I was ejected from the hearing when I whispered to my family friend who accompanied us at the hearing.
[5]After the hearing was finished my husband told me the Tribunal did not believe what he has told it.
[6]I have asked that the hearing be resumed so that I can give oral evidence to corroborate my husband’s claims. I can vouch for his claim that he assisted the PKK by meeting relatives who were also in the PKK and he helped to distribute materials those relatives brought to our village. I can also vouch that he was sought by Turkish authorities as he claimed and that he was at risk of being persecuted.
On 22 August 2006, the solicitor again expressed concerns in a letter stating:
He expressed serious concern about the conduct of the two hearing conducted by the RRT, particularly the intimidating manner in which he was cross-examined and the constant allegation that his faulty memory was not more that a ruse to cover up his allegedly false claims. Those claims were fairly simple – that he obtained political literature from relatives and distributed it around his own village. In consequence, he was sought by Turkish authorities and fled in fear of persecution.
His spouse was equally concerned at her treatment at both hearings and the allegation or suggestion that she was lying on oath. She believes that the Member had already been discounted as false before she gave it. That issue of the truthfulness of her testimony remained somewhat ambiguous as the Member expressly stated that he was not accusing her of lying byt was merely “putting it to her” although there was scant reason given to put the allegation to her, other than some comments to the effect that she could not have given the evidence earlier. In the circumstances, there is not much more the applicant spouse can state other than that she was telling the truth and only felt compelled to give oral evidence after her husband was accused of inventing his claims at the previous hearing.
...
Mr Fernandez then referred to an exchange at p.22 of the transcript:
Is it that you couldn’t recall or it didn’t actually happen?---No they are true, they are true, all these things happened, otherwise why?
Mr Fernandez also asked that I consider the transcript as a whole. A copy of the tape of the hearing was not tendered, so I was unable to consider the tone of the questions or answers.
The applicant relied upon the comments of Gray J in Antipova v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 584 and in particular the following passages:
[79] In my view, the Tribunal did not give Ms Antipova a fair hearing in these two respects. It sought to impose an arbitrary time limit on her, and it interrupted her to the extent that she was prevented from giving her evidence as she wished to. Counsel for the Minister argued that, like a court, the Tribunal has the power to impose time limits on hearings. Accepting that to be so, in the present case the Tribunal did not exercise that power in a manner that was fair to Ms Antipova. Fairness would have required that she be warned, either in the standard-form information sheet or, at the very least, at the outset of the hearing, that her time was limited. Fairness would also have required that the advice given in the standard-form information sheet should have been different, so that it was not countermanded by the Tribunal’s imposition of a time limit, and exhortations to shorten the answers to questions, in order to fit within that time limit. Even when Mr Petrou made his complaint about the imposition of the time limit, which I have quoted in [30], the Tribunal was not dissuaded from its course. If nothing else alerted the Tribunal member to the need to change her approach to the hearing, that complaint should have, especially Mr Petrou’s contention that ‘obviously we’re not getting all the information across’. Instead of abandoning her attempt to adhere strictly to a time limit, the Tribunal member berated Mr Petrou for wasting the time available by making his complaint.
[80] It is also clear that Ms Antipova was disadvantaged in the presentation of her case by the Tribunal’s unfairness in both respects. She lost an opportunity to make her case to the Tribunal in the way she wished to make it. The crucial issue was whether the Tribunal would accept what it regarded as the unlikely claim that Ms Antipova, having married on 30 April, after she met Mr Petrou, would have left her husband on 18 May and gone on to begin a de facto relationship with Mr Petrou. It was this issue on which Ms Antipova had failed at the first stage, the decision of the Minister’s delegate. It was the issue identified by the Tribunal in the question I have quoted in [22]. The Tribunal ultimately found that Ms Antipova failed on this issue. Had she been allowed to go into detail as to the circumstances of her separation from her former husband and her flight to Mr Petrou, she might have been able to persuade the Tribunal not to reject her claim.
[81] Denial of procedural fairness, potentially affecting the outcome of a proceeding in the Tribunal, is a jurisdictional error. Ordinarily, it justifies the Court quashing the decision of the Tribunal. See Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82 and Plaintiff S157/2002 v Commonwealth [2003] HCA 2 (2003) 211 CLR 476. The question is whether any provision of the Migration Act prevents Ms Antipova from relying on this jurisdictional error in the present case. In particular, the question is whether s 357A(1) of the Migration Act has that effect.
[82] There are two possible answers to this question. The first is that s 360(1) of the Migration Act requires the Tribunal 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.’ If the Tribunal has conducted what purports to be a hearing, but has not in truth allowed an applicant to give evidence and present arguments relating to those issues, it has not complied with this statutory obligation. The Tribunal has failed to comply with an essential precondition to making a decision on the applicant’s application to review the decision of the Minister’s delegate, and has therefore failed to perform the duty, conferred on it by s 348 of the Migration Act, to review that decision. Its decision is invalid and must be set aside. This is the reasoning followed by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [33] – [41], in relation to s 425(1) of the Migration Act, which imposes on the Refugee Review Tribunal an obligation in terms identical with the obligation imposed on the Tribunal by s 360(1). At [33], the Full Court approved the statement of Goldberg J in Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 (2000) 183 ALR 188 at [31] that:
‘The invitation must not be a hollow shell or an empty gesture.’
[83] In the same paragraph, Goldberg J expressed the view that:
‘where the applicant appears, but is not able through the conduct of the tribunal to give evidence or present arguments, albeit that the applicant has been invited by the tribunal to appear, then there will be a contravention of s 425(1).’
[84] In SCAR at [38], the Full Court recognised that compliance with s 425 is a ‘precondition to the valid exercise of the Tribunal’s jurisdiction’, and that failure to comply involves a jurisdictional error. At [41], the Full Court found that the Refugee Review Tribunal in that case had not extended ‘a meaningful invitation’.
[85] In the present case, because it interrupted her and imposed an arbitrary time limit on her, the Tribunal did not permit Ms Antipova to give evidence and present arguments as she wished to do. Although there was a semblance of a hearing, and the Tribunal invited Ms Antipova to it in terms mandated by s 360(1) of the Migration Act, the invitation was not a real and meaningful one, because what she was invited to do was denied to her. The Tribunal failed to observe a precondition of the exercise of the jurisdiction conferred on it. Its decision was made without an invitation to attend a hearing of the kind required, because such a hearing has not yet been conducted.
…
[95] These two cases illustrate that denial of procedural fairness can arise from the manner in which the Tribunal conducts its hearing, particularly the curtailment of the opportunity, which the hearing is intended to afford, for the applicant to give evidence. If the Tribunal attempts to hurry the course of evidence unduly and interrupts frequently, and if the behaviour of the member constituting the Tribunal betrays a lack of interest in what the applicant is saying, a denial of procedural fairness can occur. In the absence of provisions in Div 5 of Pt 5 of the Migration Act dealing with these matters, s 357A does not operate to exclude from operation those aspects of procedural fairness, or the natural justice hearing rule as it is called. The Tribunal’s jurisdictional error in denying the applicant procedural fairness can be a ground for quashing the Tribunal’s decision. The degree to which Ms Antipova’s evidence was interrupted and curtailed in the present case was sufficient to give rise to a denial of procedural fairness, capable of amounting to jurisdictional error if it affected the exercise of the Tribunal’s statutory function.
Some of the submissions by Mr Fernandez before me indicate the difficulty that the Tribunal member confronted. For example, Mr Fernandez submitted that it was unreasonable for the Tribunal member to attempt to stop the applicant wife from prompting her husband whilst he was giving evidence to the Tribunal; for example, reminding him that he had distributed brochures when he had not given that evidence. I reject this submission absolutely.
In assessing the credibility of a witness, there are a number of matters that a Court or Tribunal member will consider, including demeanour, consistency of account and level of detail provided by the witness. These matters are all destroyed if someone else is constantly prompting the witness and indeed prompting the witness about important parts of the evidence. The views of the applicants and their advisers as to the way in which a reasonable hearing should run appear to have been fundamentally different to those expected by the Tribunal member. On this point, the law is clearly in favour of the approach attempted by the Tribunal member. To the extent that this ground relies upon this issue, the applicant cannot succeed.
The requests for adjournments are a further matter that requires consideration. It does not appear to me that in the context of the hearing as a whole the request for an adjournment in this case, or the method in which they were dealt with, amount to a failure to provide a hearing under s.360. The Tribunal member held more than one hearing and received written submissions. Rather, these matters appear to me to fall more within the ambit of a question of apprehended bias. However, this was not pursued by Mr Fernandez.
On a reading of the material as a whole, however, it does not appear to me that this conduct of the Tribunal member is sufficient to show an apprehended bias that would be a basis for judicial review. Upon reflection in the judicial review proceedings, it is not difficult to conclude that the Tribunal member may have been better served by allowing the short adjournments requested, as frustrating as the overall circumstances of the case of the hearing process may have been. However, in this case the difficulties must be seen in the context of a very difficult hearing process with applicants that had a fundamentally different view of the way in which a fair hearing should operate. There had been a number of reviews and the evidence that was being presented towards the end of a hearing process that had considerable differences to that presented at the commencement of the hearing process.
In all the circumstances of the case as placed before me, I am not satisfied that the applicant has established a basis for judicial review.
Section 424A Issues
In this case the applicant claims that he ought to have received a s.424A notice with respect to the date of the issue of his passport, the claims that the applicant was a member of the PKK and distributing brochures and flyers being inconsistent with his earlier claims, and with respect to the evidence of the wife that the husband was distributing flyers and brochures.
The law with respect to the operation of s.424A has been the subject of many decisions in the FMC and the Federal Court. In SZBYR & Anor v Minister for Immigration & Citizenship [2007] HCA 26 the High Court considered the operation of the section, making it clear that it did not apply with respect to inconsistencies of earlier documents with the version of events being given by applicants at the Tribunal hearing. The High Court said:
[16] Four points must be noted about this submission. First, while questions might remain about the scope of par (b) of s 424A(3), it was accepted by both sides that information "that the applicant gave for the purpose of the application" did not refer back to the application for the protection visa itself, and thus did not encompass the appellants' statutory declaration. In this regard, the parties were content to assume the correctness of the Full Federal Court decisions in Minister for Immigration and Multicultural Affairs v Al Shamry[12] and SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs[13]. Accordingly, no occasion now arises for this Court to determine whether that assumption was correct.
[17] Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration "would be the reason, or a part of the reason, for affirming the decision that is under review". The statutory criterion does not, for example, turn on "the reasoning process of the Tribunal", or "the Tribunal's published reasons". The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense ("would be") rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The "reason, or a part of the reason, for affirming the decision that is under review" was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants' statutory declaration would itself be "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
[18] Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information"[14].
"does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc".
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant "information" was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
[19] Fourthly, and regardless of the matters discussed above, the appellants' argument suggested that s 424A was engaged by any material that contained or tended to reveal inconsistencies in an applicant's evidence. Such an argument gives s 424A an anomalous temporal operation. While the Act provides for procedures to be followed regarding the issue of a notice pursuant to s 424A before a hearing[15], no such procedure exists for the invocation of that section after a hearing. However, if the appellants be correct, it was only after the hearing that the Tribunal could have provided any written notice of the relevant passages in the statutory declaration from which the inconsistencies were said to arise, as those inconsistencies could not have arisen unless and until the appellants gave oral evidence. If the purpose of s 424A was to secure a fair hearing of the appellants' case, it seems odd that its effect would be to preclude the Tribunal from dealing with such matters during the hearing itself.
[20] Moreover, supposing the appellants had responded to a written notice provided by the Tribunal after the hearing, if inconsistencies remained in their evidence, would s 424A then oblige the Tribunal to issue a fresh invitation to the appellants to comment on the inconsistencies revealed by - or remaining despite - the original response to the invitation to comment? If so, was the Tribunal obliged to issue new notices for so long as the appellants' testimony lacked credibility? If the appellants' desired construction of s 424A leads to such a circulus inextricabilis, it is a likely indication that such a construction is in error.
[21] The short answer to all these points is that, on the facts of this case, s 424A was not engaged at all: the relevant parts of the appellants' statutory declaration were not "information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". Section 424A has a more limited operation than the appellants assumed: its effect is not to create a back-door route to a merits review in the federal courts of credibility findings made by the Tribunal. That being so, this case does not require this Court to address the differences in opinion in the Federal Court concerning the "unbundling" of Tribunal reasoning[16].
This is a considerably more narrow definition of the material covered by s.424A than had previous been thought (see, for example, SZEEU v Minister [2006] FCAFC 2).
In this case, it is now quite clear that the differences in versions given by the applicant through the different hearings would not be matters which require the issue of a notice pursuant to s.424A. To the extent that it is arguable that the date of the applicant's passport is relevant, the first-named applicant had received a s.424A notice from the Tribunal member in any event.
The remaining issue is therefore whether or not a s.424A notice ought to have issued to the wife with respect to the passport date, or whether either of the parties ought to have received a s.424A notice with respect to the evidence given by the other.
With respect to the date of issue of the passport, it appears that on a reading of the High Court's comments in SZBYR this is a matter that relates to credibility and is not a reason for refusal of the application. In these circumstances, it is not necessarily a matter that ought to be the subject of a s.424A notice. In the context of this case, there is no suggestion of other issues of procedural fairness related to this issue - as clearly the applicant and his wife were aware of it through the hearing process, and able to respond to it as they saw fit. In these circumstances, I do not find that there is a jurisdictional error on the part of the Tribunal in failing to provide a s.424A notice with respect to this issue to the wife. I note that if the material was required to be the subject of a s.424A notice, then a copy of it would need to be sent to each of the applicants in accordance with SZGSI v Minister for Immigration & Citizenship [2007] FCAFC 110, however, that was not required in this case.
To the extent that each of the parties gave evidence at the hearing, there appears to be nothing in the evidence of either of the applicants to the effect that would be a reason for refusing to grant a protection visa. Rather, the material all went to credibility of the applicants.
It cannot have been intended that the operation of s.424A would require the Tribunal to notify the applicant wife that they had rejected the evidence of the applicant husband in the context of a case such as this.
In all of the circumstances, I therefore refuse the current application.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Robin Smith
Date: 22 November 2007
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