SBQF v Minister for Immigration - [2007] FMCA 988

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SBQF v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 988

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – application of s.416 of the Migration Act in circumstances where Minister has applied discretion available under s.48B – no jurisdictional error found – application dismissed.

Migration Act1958 (Cth), ss.48A, 48B, 50, 414, 416 & 434A

Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476
Yusuf v Minister for Immigration & Multicultural Affairs (2001) 206 CLR 323
Craig v South Australia (1995) 184 CLR 163
Saraswat v The Queen (1991) 172 CLR 1
NAFF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (1999) 168 ALR 407

Applicant:

SBQF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

ADG 303 of 2006

Judgment of:

Brown FM

Hearing date:

13 June 2007

Date of last submission:

13 June 2007

Delivered at:

Adelaide

Delivered on:

3 August 2007

REPRESENTATION

Counsel for the Applicant:

Mr Charman

Solicitors for the Applicant:

Westside Community Lawyers

Counsel for the Respondent:

Mr Roder

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant pay the costs of the first named respondent fixed in the sum of FOUR THOUSAND FIVE HUNDRED DOLLARS ($4,500.00).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 303 of 2006

SBQF

Applicant

And

MINISTER FOR IMMIGRATION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Refugee Review Tribunal on 29 September 2006. The decision affirmed an earlier decision of a delegate for the Minister of Immigration & Multicultural Affairs “the Minister” not to grant the applicant a protection visa.
As the applicant has applied for a protection visa, he is not to be identified in these proceedings pursuant to the provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”). He has been given the pseudonym of “SBQF”.
The applicant is a citizen of Cambodia. He arrived in Australia on 7 October 1994. On 16 January 1998, he applied to the Department of Immigration & Multicultural Affairs for a class AZ protection visa.

His application was refused by the Minister’s delegate on 4 February 1998. As a result, the applicant sought a review of this decision in the Refugee Review Tribunal (“the Tribunal”). His application for review was dismissed by the Tribunal on 23 December 1999 (“the first Tribunal decision”).
On 21 January 2000, the applicant sought to review the first Tribunal decision in the Federal Court. On 23 August 2000, the Federal Court dismissed this application.
On 7 March 2006, following representations made to her, the Minister determined that it was in the public interest to permit the applicant to make a further application for a protection visa. This he duly did on 6 April 2006. The Minister’s delegate refused the application on 24 May 2006, on the basis that Australia did not owe any protective obligations to the applicant under the Refugee’s Convention.
This refusal lead to the applicant lodging a review application in the Tribunal on 1 June 2006. On 29 September 2006, the Tribunal determined as follows:
“Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee’s Convention as amended by the refugee protocol. Therefore the applicant does not satisfy the criterion set out in section 36(2) for a protection visa.
The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) Visa.” [1]
[1] See Case Book at page 284
It is this decision, “the second Tribunal decision”, which is the subject of these proceedings, which were commenced on 8 November 2006. The applicant seeks a review of the second Tribunal decision pursuant to section 39B of the Judiciary Act 1903(Cth). The grounds for the application are as follows:
a)That the second respondent exceeded its jurisdiction in making its decision to affirm the respondent’s decision.
b)That the second respondent constructively failed to exercise its jurisdiction in arriving at its decision.
The applicant seeks that the constitutional writs of certiorari, prohibition and mandamus be issued by the court quashing the decision of 29 September 2006 and requiring the second Tribunal decision to be re-determined by the Tribunal according to proper principles of law. The decision, which the applicant seeks to review, is a “privative clause decision” as defined by section 474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia[2] has held that the provisions of section 474 do not prevent the review of decisions made by the Tribunal which are affected by jurisdictional error or have been made in bad faith.
[2] Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476 at 179 and Yusuf v Minister for Immigration & Multicultural Affairs (2001) 206 CLR 323 at 351
An Administrative Tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in a way that affects the exercise or purported exercise of the Tribunal’s power.[3]
[3] See Craig v South Australia (1995) 184 CLR 163
The applicant contends that the Tribunal has fallen into jurisdictional error by having regard to the contents of the first Tribunal decision.

He contends that, because the Minister exercised a discretion pursuant to section 48B of the Act, to allow him to make a further application for a protection visa, the Tribunal is required to consider only material put forward in support of such a subsequent application and is not entitled to have regard to any earlier decisions of the Tribunal.
Essentially, it is the applicant’s position that a proper interpretation of section 48B requires an applicant, granted permission to bring a further application pursuant to the section, be entitled to “start afresh” in regards to that application. Necessarily, this must mean that the Tribunal is not permitted to have regard to any of its earlier decisions made prior to the Minister’s decision made pursuant to section 48B.
The success or otherwise of this contention depends on the proper interpretation of section 416 of the Act. It reads as follows:
“If a non‑citizen who has made:
(a)an application for review of an RRT‑reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or
(b)applications for reviews of RRT‑reviewable decisions that have been determined by the Tribunal or the Administrative Appeals Tribunal;
makes a further application for review of an RRT‑reviewable decision, the Tribunal, in considering the further application:
(c)is not required to consider any information considered in the earlier application or an earlier application; and
(d)may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information.”
It is the respondent’s contention that section 416 of the Act has clear application to the circumstances of this case. The Minister contends that the wording of section 416 is clear, particularly subsection (d). Accordingly, the Minister contends that the Tribunal was entitled to have regard to evidence given by the applicant in the first Tribunal decision, which was inconsistent with evidence given by him in the second Tribunal decision.

Background

The applicant was born in Siem Reap, Cambodia in 1950. In 1990 he obtained a position with the Sarimexco Company, which was owned by a General Toch Sakhan, who was a member of the Funcinpec party. The applicant was also a member of this party. As well as working for the company, the applicant contends that he was recruited by Toch Sakhan to be an informer regarding members of other political parties in Cambodia.
After the 1993 elections held in Cambodia, Hun Sen and Prince Norodom Ranariddh came to power. It is the applicant’s contention that, after the election, he continued to work as an informer for Funcinpec and Toch Sakhan. In 1994, the applicant states that his activities came to the knowledge of members of the Cambodian People’s Party, the political party of Hun Sen. As a result, he was threatened with death.
Thereafter, following discussions with Toch Sakhan, the applicant decided it was no longer safe for him to remain in Cambodia. With Toch Sakhan’s assistance, he left Cambodia by air, ostensibly on a business trip to Australia on behalf of the Sarimexco company.
In 1998, the applicant claimed refugee status on the basis of his links with the Funcinpec party and his opposition to the Cambodian People’s Party. He claimed that his life would be under threat, if he returned to Cambodia, particularly because of his activities as an informer under the control of General Toch Sakhan.
In July 1999, after the applicant had arrived in Australia, his first wife died in a car accident Phnom Penh. It is the applicant’s belief that her death was not accidental and she was killed by authorities in Cambodia as an act of revenge on him because of his membership of Funcinpec and his associations with General Toch Sakhan. It is the applicant’s contention that he is at risk of suffering a similar fate to his first wife, if he is compelled to return to Cambodia.

Evidence given by the applicant to the first Tribunal hearing

In evidence given by the applicant to the Tribunal, prior to its first decision of 23 December 1999, the applicant stated that he had three children who lived with their adopted mother in Cambodia. He stated that he had not been able to remain in touch with his wife up until the time of her death, which he had learnt about from Funcinpec. He also stated that he had not had any contact with his children, apart from one brief letter.
The applicant also stated to the first Tribunal hearing that he did not know what happened to General Toch Sakhan but assumed that he had not survived the 1997 coup. The applicant also told the first Tribunal that he did not know a person called Prak Phi and he had not been accompanied by Prak Phi to Australia in 1994.

Evidence given by the applicant to the second Tribunal hearing

In evidence given to the second Tribunal hearing, the applicant indicated that he had telephoned his wife and children, after he had left Cambodia, on four to six occasions. He also stated that a neighbour informed him of the death of his wife and the subsequent disappearance of his children.
The applicant also informed the second Tribunal hearing that General Toch Sakhan had been killed in 1997, during the coup, whilst trying to flee from Cambodia to Thailand. The applicant stated that Toch Sakhan had been killed by members of Hun Sen’s forces and he had learnt of his death a couple of months after 1997.
The applicant stated that he had travelled to Australia with Prak Phi and that he (Mr Phi) had returned to Cambodia between 1996 and 1998, after which he had disappeared.

Section 424A Notice

On 7 August 2006, the second Tribunal forwarded a letter to the applicant pursuant to section 424A of the Act. Pursuant to subsection (1) of section 424A the Tribunal must:
“1) Subject to subsection (3), …:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.”
In particular, the applicant was invited to comment upon inconsistencies between his evidence to the first Tribunal hearing and the second Tribunal hearing regarding the circumstances surrounding the death of Toch Sakhan; the circumstances surrounding the disappearance of his children, which he did not mention to the first Tribunal; how he learnt about the death of his wife; and the circumstances of his coming to Australia.
The applicant was apparently advised in the letter that “this information was relevant because the discrepancies between his evidence to the previous Tribunal and his evidence to the current Tribunal might indicate that he was not telling the truth”.[4]
[4] See Case Book at 276
As a result of this letter, sent pursuant to section 424A, the applicant provided a statutory declaration in which he indicated that his memory had been affected by years of sleeplessness, depression and anxiety.

In support of his claims in this regard, the applicant also provided letters from a medical practitioner confirming that he was suffering from depression and anxiety.

The decision of the Tribunal made on 11 October 2006

It is common ground between the parties and apparent from a reading of the second Tribunal decision that the second Tribunal reached its decision that the applicant did not have a well founded fear of persecution for a convention reason largely because it found that the applicant’s account of such persecution lacked credibility. In particular, under the following headings, the Tribunal found as follows:

a) Involvement with Funcinpec

The Tribunal accepted that a pro-Funcinpec political opinion could be imputed to the applicant, by Cambodian Authorities, given that he worked for Toch Sakhan, who was a member of this party.

b) Method of leaving Cambodia

The second Tribunal noted that the previous Tribunal had concluded that the applicant had left Cambodia on a valid passport, under his own name, in a conventional manner. From this it had concluded that he was not a person who was at risk from government repression.

The second Tribunal noted that the applicant had not provided any further information in this regard and adopted the first Tribunal’s finding.

c) Death of the applicant’s wife and disappearance of his children

The Tribunal accepted that the applicant had a number of health problems and also that his memory may have been impaired by depression and anxiety. However, the Tribunal found it inconceivable that the applicant would not have mentioned to the first Tribunal that his children had disappeared because he feared he would not be believed. Accordingly, the Tribunal found as follows:
“Due to the inconsistencies in the applicant’s evidence at different stages and the vague nature of Mr Pheng’s evidence, the Tribunal does not accept that the applicant’s children have disappeared or are missing.”[5]
[5] See Case Book at page 280.
The Tribunal accepted that the applicant’s wife had been killed in a motor accident in 1995. However, it did not find that there was any basis for the applicant to believe that she had been deliberated run down or shot whilst riding a motorcycle. Accordingly, the Tribunal was satisfied that there was nothing non-accidental regarding the death of the applicant’s wife and she was not killed for reasons to do with the applicant’s political views.

c) Death of General Toch Sakhan

In regards to this issue, the Tribunal found as follows:
“… the matter of concern is that the applicant’s clear evidence was that he was aware that General Toch Sakhan was killed in 1997. However, when he gave evidence to the previous Tribunal in 1999 he stated that he did not know what had happened to General Toch Sakhan, but he thought he would not have survived the July 1997 coup. It appears odd that if the applicant had detailed information about the General being shot whilst leading a group of between four and ten men in Takeo Province, that he did not disclose this information to the previous Tribunal. The applicant claimed that he had not told the Tribunal about the death of Toch Sakhan because he was afraid he would not be believed. This seems an inconceivable reason for not providing this information.”[6]
Accordingly, the Tribunal did not accept the applicant’s account regarding the death of General Toch Sakhan
[6] See Case Book at page 281

d) Invitation for questioning

The Tribunal noted that the applicant had told the first Tribunal that he did not know Mr Prak Phi. This statement was found to be in direct contradiction to the applicant’s evidence, to the second Tribunal, that he had travelled to Australia with this person. This discrepancy caused the Tribunal to find as follows:
“Even if the applicant was suffering from anxiety and depression the Tribunal would expect the [applicant] to remember whether he had met someone who [sic] he appeared to know well. These contradictions raise serious doubts about the applicant’s credibility on this issue.”[7]
[7] See Case Book at pages 281-282
The Tribunal also doubted the applicant’s claim that he had come into possession of a request that he attend on the authorities in Cambodia for questioning approximately ten years after he had left Cambodia. The Tribunal did not accept that the invitation for questioning document, which the applicant submitted to the second Tribunal, was a genuine document.
Overall, the Tribunal did not accept that the applicant had a well founded fear of persecution because of his previous support of Funcinpec. It found as follows:
“The Tribunal finds, given the current situation in Cambodia, that there is no real chance that the applicant will be persecuted for reasons of his support of Funcinpec some twelve years previously. The Tribunal finds that the applicant does not have a well founded fear of persecution for reasons of an imputed political or a political opinion.”[8]
[8] See Case Book at page 284
Further, the Tribunal noted that the applicant had been put on notice that it intended to rely on the provisions of section 416 of the Act.

It noted that the applicant claimed he had mental health issues and medication prescribed for him which interfered with his thought processes, particularly his memory. The Tribunal also noted that the applicant was suffering from depression and anxiety. In regards to these issues, the second Tribunal held as follows:
“… as the Tribunal is relying on findings made in 1999 relating to evidence provided in 1999 the fact that the applicant’s memory may currently be impaired has less or no relevance to these findings. The advisor did not submit that the Tribunal did not rely on section 416 in making its decision.”[9]
As has previously been indicated, the application of section 416 to the circumstances of this case is crucial in determining whether the Tribunal decision is vitiated by jurisdictional error.
[9] See Case Book at page 279.

The applicant’s submissions

The applicant contends that, in circumstances where the Minister has exercised the discretion available under section 48B of the Act, the Tribunal can only review the decision which results from the exercise of that particular discretion and is therefore not entitled to have regard to any previous decision of the Tribunal, as a result of the operation of section 416. This contention depends on how section 416 is interpreted within the overall scheme of the legislation provided by the Migration Act, particularly sections 48A; 48B; and 50.
The starting point of Mr Charman’s submission is section 414, which requires the Refugee Review Tribunal to review all valid decisions of the Minister, other than ones in which the Minister has issued a conclusive certificate. In Mr Charman’s submission, section 414 limits this review power only to the delegate’s decision made on 24 May 2006 and by necessary implication excludes any power to review an earlier decision, particularly that which was made on 23 December 1999.

Mr Charman points to the fact that section 414(2) specifically prevents the Tribunal reviewing decisions in relation to which the Minister has issued a conclusive certificate. Accordingly, he submits as follows:
“The absence of any provision to restrict the review process in circumstances where the legislature has expressly provided for a limit in certain circumstances is indicative of the requirement that there be a full review of the delegate’s decision. The maxim of statutory interpretation expressio unius est exclusio alterius lends support to the conclusion that there is nothing in the section itself to limit the review …”[10]
[10] See applicant’s submissions at paragraph 8
The maxim to which Mr Charman has referred is usually translated as “the express mention of one thing excludes all others” or, in the context of statutory interpretation, items not on the list are assumed not to be covered by the statute. In Mr Charman’s submission, this means that section 414 is not to be artificially extended in its application but is to be confined only to RRT-reviewable decisions.
It is also Mr Charman’s submission that there are two different and distinct processes created by section 48A and section 48B of the Act respectively and, as a result, section 416 applies differently to these two distinct processes. Essentially, he argues that section 48B allows an applicant to bring an application for a protection visa de novo, which by necessary implication precludes the delegate (and accordingly the RRT) from having reference to previous decisions. On the other hand, section 48A has no such restriction, as it is designed to prevent unmeritorious repeat applications for protection visas.
Section 48A reads as follows:
“(1)Subject to section 48B, a non‑citizen who, while in the migration zone, has made:
(a)an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or
(b)applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);
may not make a further application for a protection visa while in the migration zone.
(1A) For the purposes of this section, a non‑citizen who:
(a)has been removed from the migration zone under section 198; and
(b)is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e);
is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).”
On the other hand, section 48B expressly empowers the Minister to determine that section 48A does not apply to a non-citizen, who is within the migration zone. In Mr Charman’s submission, it is a significant power, which is closely governed. In Mr Charman’s submission, it would be an inappropriate interpretation of section 416 of the Act, if this was utilised to fetter the discretion open to the Minister pursuant to section 48B. Section 48B reads as follows:
“1)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.
(2)The power under subsection (1) may only be exercised by the Minister personally.
(3)If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination; and
(b)sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
…
(6)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.”
As has previously been indicated, it is Mr Charman’s submission that the legislature’s intention, in enacting section 48B, was to enable applicants for protection visas to “start afresh” in their applications, in special circumstances. He points to the fact that the Minister’s discretion pursuant to section 48B is closely fettered. The Minister is required to set out his or her determination, pursuant to the section, in writing, which determination is to be laid before each house of the parliament.
He further submits that there is no express limitation in the Minister’s discretion provided by the section, other than that the discretion is to be exercised personally by the Minister and only in the “public interest”. Accordingly, given the form of section 414, he argues that the RRT is only entitled to review decisions, which arise expressly following the exercise of the Minister’s discretion pursuant to section 48B.
In Mr Charman’s submission, section 50 of the Act is related to section 48A and is designed to prevent repeated applications for protection visas, once an applicant has returned to the migration zone after having been previously in it. The section reads as follows:
“Only new information to be considered in later protection visa applications
If a non‑citizen who has made:
(a)an application for a protection visa, where the grant of the visa has been refused and the application has been finally determined; or
(b)applications for protection visas, where the grants of the visas have been refused and the applications have been finally determined;
makes a further application for a protection visa, the Minister, in considering the further application:
(c)is not required to reconsider any information considered in the earlier application or an earlier application; and
(d)may have regard to, and take to be correct, any decision that the Minister made about or because of that information.”
As I understand Mr Charman’s argument, he contends that s.48A and s.50 are designed to prevent repeated and unmeritorious applications for protection visas. In the case of the former section, repeat applications within the migration zone and in the case of the latter, in the event an applicant leaves and returns to the migration zone. He contends s.48B matters are different because they involve the intervention of the Minister, who has waived the application of s.48A because of some matter arising in the public interest. Therefore if the legislature had wished the Minister (and by necessary implication his delegate) to have regard to earlier discussions made prior to the exercise of the discretion pursuant to s.48A, it would have expressly said so. As it did not,
Mr Charman contends s.48B matters fall into a different category.
In support of his submission, Mr Charman points to the dates on which each of the relevant sections was inserted into the Migration Act.

The relevant provisions are as follows:
s48A   -     was added in amendment 102 of 1995
-was amended by 160 of 1999 to deal with continuity of being in the migration zone
-     was amended by 131 of 2001
s48B-     was added in amendment 102 of 1995 and has not been amended
s50- was added in amendment 184 of 19992 and amended in 60 of 1994 and 102 of 1995 where relevantly the reference to the applicability of s48A was added
s416-     was added in 184 of 1992 which relevant predates s48A and s48B.”[11]
[11] See applicant’s submissions at paragraph 13
In Mr Charman’s contention, section 48A’s purpose is applicable to only individuals sitting within the migration zone. Section 50 applies to a situation where an applicant is returned to his or her country of origin, after having made an application for a protection visa, but for some reason is returned to the Australian migration zone. In such cases, there are limitations placed on the material which can be considered in support of subsequent protection visa applications. Accordingly,

Mr Charman contends as follows:
·There are therefore two processes in place. Firstly the process of an applicant being restricted to one application whilst in the migration zone leaving that zone and returning to make a fresh application. Secondly the process of an applicant whilst still in the migration zone having the one application limit [s 48A] lifted by the Minister utilizing s 48B.
·It is contended that s 50 and s 416, which both pre date s 48A and s 48B, are intended to deal with the first process and not the second.
·There is a clear purpose in allowing the Minister [through her delegate] to rely upon previous information and decisions under s 50 where a person has left the migration zone and returned to make a further application. This same clarity of purpose exists with respect to s 416.
·It is contended however that it clear that s 48A and in particular s 48B were intended to change the existing process at the time of their introduction. The change was to allow the Minister to permit an individual to start the application process afresh.[12]
[12] See applicant’s submissions at paragraphs 16-19
In support of this last contention, Mr Charman argues as follows:
·Section 48B places no limitation on the nature of the subsequent application which it authorises, other than that it must be made within a specific time frame. If there was to be a limitation on the nature of the subsequent application, it was open to the legislature to impose such a restriction. It did not do so. Accordingly, it is contended that any restrictions on an individuals rights, said to arise from statute, should only arise by plain words.
·The review under section 414 is a review of the delegate’s decision which was of itself a decision concerning a fresh application and there is nothing in section 414 that limits the review process for applications under section 48B.
·Section 416 predates section 48A and section 48B and should be read in a manner to give full affect to the subsequent amendments. In doing so, one needs to look at the entire statute and determine the purpose of the migration and the particular amendments arising from section 48A and section 48B.
·
In this regard, Mr Charman points to section 15AA of the Acts Interpretation Act 1901 which requires the court to have regard to the purposes or objects of any particular act in construing it.

In addition, he relies on what was said by the High Court in Saraswat v The Queen[13] and in particular Gaudron J who said as follows:
“It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be applied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operated and that, to the extent that they would otherwise overlap, one should be read as subject to the other.”
[13] Saraswat v The Queen (1991) 172 CLR 1
Accordingly, Mr Charman argues that the purpose of section 48A is to limit applicants to one application, whilst in the migration zone, but to enable that limitation to be lifted, at the Minister’s discretion and allow a new application, which must be determined afresh. As section 416 predates both section 48A and section 48B, its effect on section 48B matters is confined. If it was otherwise, the Minister’s discretion would be unnecessarily narrowed, when in the section itself it is unfettered, apart from the time limit. Accordingly, applications brought under section 48B are not limited in any way or subject to any restriction.
It is Mr Charman’s final contention that, in exercising its responsibilities under section 414, the Tribunal is required to make a fresh decision. By its reliance on the earlier decision, it did not do so and so failed to exercise properly its jurisdiction. In particular, he contends the Tribunal did not properly consider the effect of the additional evidence the applicant provided via Mr Trumble and

Dr Benson that he was suffering from anxiety and depression and this had consequences for his memory. Accordingly, he was not able to respond to the two notices provided to him, regarding earlier inconsistencies in his evidence. By failing properly to consider this evidence, Mr Charman argues the Tribunal has not finished the task required of it and therefore has failed to exercise its jurisdiction within the terms laid down by the High Court in NAFF v Minister for Immigration & Multicultural& Indigenous Affairs[14].
[14] See NAFF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1

The respondent’s submissions

It is the respondent’s contention that the words of section 416 are clear and unambiguous. As such, the use a second or subsequent Tribunal can make of an earlier Tribunal’s findings is not limited in any way.

As a result, Mr Roder, counsel for the respondent argues that

Mr Charman’s contention:
“…involves a construction of the legislation which is simply not open according to its text or context. The fact that the provisions of section 48A and 48B of the Act were introduced after section 416 of the Act does not indicate that section 416 should be read down. There is no contextual reason why sections 48A, 48B, 50 and 416 cannot operate together. Sections 50 and 416 of the Migration Act are facilitative. They confer a discretionary power on the Minister of the Tribunal. The existence of such a discretionary power does not operate as any fetter on the exercise of discretion under section 48B.”[15]
[15] See respondent’s submissions at paragraph 16 and 17
Accordingly, it is Mr Roder’s submission that there is no basis for the argument that the second Tribunal’s use of section 416 has effectively narrowed or restricted the ambit of the Minister’s discretion available under section 48B, which can be said to be contrary to the legislature’s intention. Accordingly, it is Mr Roder’s contention that the applicant’s position is not tenable.

Discussion

In Htun v MIMA[16] Allsop J characterised the task of judicial review of administrative decisions from the RRT as follows:
“… the decision of the Tribunal [need] not be read overfinely, or with an eye too keenly attuned to the perception of error. A common sense approach as to what the Tribunal was saying is called for.”
[16] Htun v MIMA (2001) 194 ALR 244 at 258
In NAFF,[17] the High Court noted that “courts have often warned against excessively fine scrutiny of the language of executive bodies and administrative tribunals …”. Bearing these comments in mind, it is not appropriate that I approach the second Tribunals reasons with a fine tooth comb. Rather, I must examine the findings as a whole, to ascertain whether there has been a failure of jurisdiction.
[17] NAFF v MIMIA (supra) at page 13
The main thrust of the applicant’s case, both in 1998 and 2006, was that, as a prior member of Funcinpec, who had associations with General Toch Sakhan, he was at significant risk of persecution from the authorities in Cambodia, if repatriated to that country. The second Tribunal did not accept this central assertion, primarily on the basis of country information it had available to it, which post-dated the fist Tribunal hearing and which was passed to the applicant for his comments.[18]
[18] See Case Book at page 276
In assessing this claim, the second Tribunal concluded as follows:
“The Tribunal must consider whether the applicant has a well founded fear of persecution if he returned to Cambodia for reasons of his support of FUNCINPEC. The Tribunal accepts that in the coup of 1997 and the political turmoil of Cambodia that many FUNCINPEC supporters and leaders have been killed and harmed. The applicant however according to his evidence was only a supporter of FUNCINPEC because he believed he should support the party that his boss was a member of. The applicant does not have any strong political views or affiliations and therefore the Tribunal does not accept that he would be interested in, or will continue to involve himself with politics, if he returned to Cambodia. The Tribunal refers to the country information that was provided to the applicant for comment. This indicates that FUNCINPEC is currently in Coalition government with Hun Sen’s CPP. It notes that the CPP and FUNCINPEC have rapidly re-embraced each other and enjoyed the fruits of a symbiotic relationship. Though they remain nominally separate, FUNCINPEC acts increasingly as an appendage of the CPP.”[19]
[19] See Case Book at page 283
This central finding of the Tribunal does not depend at all on any previous findings of the RRT and stands independently of them. In my view, it is clear that any findings, which depend on section 416 for their inclusion in the decision relate to peripheral or subsidiary matters.

The two most important factors which led the second Tribunal to its decision that the applicant was not owed protection obligations by Australia were firstly the current political situation in Cambodia and secondly the period of time which had elapsed since the applicant had been involved with Funcinpec in that country.
In exercising its functions under the Migration Act, the Tribunal was required to consider whether the applicant had a well founded fear of persecution in Cambodia. The Tribunal found that he did not. It reached the following finding, which was available to it regardless of any previous Tribunal findings or its view about the credibility of the applicant:
“The Tribunal finds, given the current situation in Cambodia, that there is no real chance that the applicant will be persecuted for reasons of his support of FUNCINPEC some 12 years previously. The Tribunal finds that the applicant does not have a well founded fear of persecution for reason of an imputed political or a political opinion. The applicant has made no claims based on any other Convention grounds and the Tribunal finds on the evidence before it that the applicant does not have a well founded fear for any Convention reason.”[20]
[20] See Case Book at page 284
It is true that the second Tribunal formed an adverse view of the applicant’s credibility. In my view, it was entitled to do so. As McHugh J remarked in Durairajasingham[21] findings on credibility is the function of the primary decision maker “par excellence”. However, this issue of credibility is subsidiary to the Tribunal’s principle findings, as outlined above, and, in my view, does not add to them.
[21] Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (1999) 168 ALR 407 at 423
It also seems to me that the Tribunal’s use of information from the first Tribunal hearing, pursuant to section 416 is extremely limited. The first Tribunal did not accept that the applicant had been forced to flee Cambodia in circumstances where it appeared that he had been able to leave the country on a validly issued travel document in his own name. At the second hearing, the applicant had nothing to add, one way or the other, in respect of this issue.
It is true that the second Tribunal noted discrepancies in the accounts provided by the applicant in 1999 and 2006 regarding the circumstances of the disappearance of his children. In this regard, I note that the applicant had formally been advised of the existence of the provisions of section 416 of the Act and the Tribunal took into account the applicant’s evidence regarding his mental state at the time of the second hearing. The Tribunal found as follows:
“The Tribunal accepts that the applicant had a number of health problems and his memory may be impaired by depression and anxiety. However, this does not explain his failure to mention to the Tribunal in 1999 the disappearance of his children. The applicant stated he did not tell the Tribunal about the disappearance of his children because he would not be believed. This seems an illogical explanation, given that he told the Tribunal about the death of his wife.”[22]
[22] See Case Book at page 280

The Tribunal was also concerned regarding the applicant’s belief regarding the circumstances surrounding his wife’s death. The Tribunal accepted that the applicant had always been consistent in his account that she had died in a motor vehicle accident. It was clear that this accident had occurred after the applicant had left Cambodia and accordingly he could not have had any personal knowledge about it. However, the applicant suggested that she was deliberately run down. The Tribunal thought this unlikely and found as follows:
“There is no evidence to suggest that the applicant’s wife has been deliberately run down. In view of the fact that the Tribunal has accepted the finding that the applicant was not involved in any serious political activities in Cambodia, he would not be a person who would attract this type of serious retaliation for something he had done.”[23]
[23] See Case Book at page 281
The issue of the circumstances surrounding General Toch Sakhan’s death is not one which is affected by any concerns about the applicant’s memory difficulties. The applicant in fact provided more rather than less information to the second Tribunal regarding the death of General Toch Sakhan, which the second Tribunal characterised as being “odd”. However, although the second Tribunal did not accept the applicant’s account of the circumstances surrounding General Toch Sakhan’s death, in my view, this was not a matter which had consequences for the Tribunal’s ultimate determination. In any event, I agree with Mr Roder’s submission that the Tribunal was entitled to embark upon this fact finding exercise.
The second Tribunal also noted discrepancies between the applicant’s accounts provided in 1999 and 2006 regarding whether he did or did not travel to Australia with Mr Phrak Phi. In this regard, the Tribunal found that even if the applicant was “suffering from anxiety and depression” it would be expected that he would remember meeting someone he appeared to know well. This caused the second Tribunal to have reservations about the applicant’s credibility about the invitation for questioning, which the applicant alleged had been issued by authorities in Cambodia. However, the main issue regarding this request to attend for questioning appears to have arisen after the first Tribunal hearing.
The High Court in NAFF[24] characterised the provisions governing the RRT’s review of decisions by the Minister’s delegate as “an inquisitorial merits-based review by an independent Tribunal”. The provisions governing this process are set out in Part 7 Divisions 2-7A of the Act. The Tribunal is directed to perform its functions in a fair, just, economical, informal and quick manner.[25] The Tribunal is required to invite any applicant to appear before it so that he or she may give evidence and present argument.[26] The Tribunal is required to set out its reasons and any findings in respect to material questions in writing.[27]
[24] NAFF v MIMIA (supra) per McHugh, Gummow, Callinan & Heydon JJ at page 8
[25] See section 420
[26] See section 425
[27] See section 430
Section 416 appears in Division 2 of Part 7 of the Act and grants the Tribunal a discretion either to have regard to or take to be correct any previous decision the Tribunal has earlier made. However, the Tribunal is also not required to consider any information which has been considered in an earlier application. In my view, the power under section 416 must be viewed in the context of the Tribunal’s legislative function, which is to provide an informal, fair and economical inquisition regarding any decisions made by the Minister’s delegate.

I am not persuaded that there is any intrinsic difference in the nature of its inquiry regarding applications which arise under either section 48A or as a result of the Minister’s intervention pursuant to section 48B.
In each case, the Tribunal’s task remains inquisitorial. It is a fact finding exercise. In such circumstances, I do not see why the RRT should be constrained in any way in its reference to any earlier decisions which it has made.
In any event, for the reasons already provided, I do not believe that the second Tribunal’s reference to the first decision were instrumental in it reaching its conclusion that Australia did not owe any protective obligations to the applicant pursuant to the Refugee’s Convention as incorporated into Australian domestic law.
For all these reasons, it must follow that the application should be dismissed. The respondent has sought an order for costs and in my view such an order is appropriate. I assess costs in the sum of $4,500.00. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 3 August 2007