SGCB v Minister for Immigration
[2003] FMCA 464
•3 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SGCB v MINISTER FOR IMMIGRATION | [2003] FMCA 464 |
| MIGRATION – Matter remitted from Federal Court – Review of RRT decision – application for protection visa – where the applicant claims to have a fear of persecution for reasons of political or imputed political opinion or membership of a social group – where the Tribunal failed to give the applicant more time to prepare his case once new evidence came to light – where the Tribunal made adverse findings on credibility - whether the Tribunal misled the applicant – whether the applicant was denied a fair hearing – whether there was a breach of natural justice amounting to jurisdictional error. |
Federal Court of Australia Act 1976 (Cth) s.25(1)A
NAAV v Minister for Immigration [2002] FCAFC 228
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Re Minister for Immigration; ex parte Lam [2003] HCA 6
Minister for Immigration v WAAG [2003] FCAFC 60
Re Refugee Review Tribunal; ex parte Aala (2002) 204 CLR 82
Mahon v Air New Zealand Ltd [1984] 1 AC 808
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant Re Minister for Immigration; Ex parte S154/2002 [2003] HCA 60
NAFF v Minister for Immigration [2003] FCAFC 52
Stead v State Government Insurance Commission (1986) 161 CLR 141
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
| Applicant: | SGCB |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | AZ 229 of 2002 |
| Delivered on: | 3 November 2003 |
| Delivered at: | Sydney |
| Hearing date: | 8 October 2003 at Melbourne via videolink to Adelaide |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr J Carney |
| Solicitors for the Applicant: | Refugee Advocacy Service of South Australia |
| Counsel for the Respondent: | Mr L Leerdam |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Court declares the decision of the Refugee Review Tribunal dated 25 June 2002 to be void and of no effect.
The Court orders:
(i)That the matter be referred back to Refugee Review Tribunal differently constituted to be determined according to law.
(ii)The respondent pay the applicant’s costs assessed in the sum of $4,250 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
AZ 229 of 2002
| SGCB |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUSAFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is an Afghani national born in 1978 of mixed Tajik and Pashtun ethnicity. He was born in Bamiyan but has lived nearly all of his life in Kabul. He arrived in Australia on 1 August 2001. On 22 September 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 11 April 2002 a delegate of the Minister refused to grant a protection visa and on 12 April 2002 the applicant applied for review of that decision.
The applicant was detained in Woomera Detention Centre. The hearing of his application for review by the Tribunal took place via a video link on 16 May 2002. The Tribunal made its decision to affirm the decision of the delegate on 25 June 2002. This decision was faxed to the applicant on that day. The applicant then sought judicial review from this court. He was not represented and his application was dismissed. At that time the Federal Magistrates Court was bound by the decision of the Full Bench of the Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228. Federal Magistrate Driver found that none of the matters raised by the applicant provided grounds for review based upon the six conditions which he set out in paragraph 7 of his reasons. The applicant then appealed the decision of Federal Magistrate Driver to the Federal Court where it was heard by Mansfield J pursuant to a determination of the Chief Justice under section 25(1)A of the Federal Court of Australia Act 1976 (Cth). His Honour allowed the appeal because he found that there were two claims of failure to provide the applicant with procedural fairness which were not considered by the Federal Magistrate. I set out below a substantial extract from the decision of Mansfield J because it succinctly encapsulates both the relevant facts that were before me for decision and the points of law that were argued:
28 There are two respects in which, it is contended by counsel for the appellant appearing pro bono, the Tribunal failed to accord procedural fairness to the appellant. The first is the failure to warn him of the possibility of a particular adverse finding, either under s 424A of the Act or at common law, namely his evidence that on 13 May 2002 he had learned his father and brother had been arrested was concocted to bolster his claim to be a refugee. The second is the failure to give the appellant sufficient time to prepare a case, and to adjourn the hearing in the light of the appellant's information reportedly received on 13 May 2003, only three days prior to the hearing before the Tribunal. The newspaper report which he produced to the Magistrate might show that, had the appellant been given a little time, he may have been able to secure evidence tending to confirm his claim about the arrest of his father and brother.
29 As I have reached the view that it is appropriate in this matter to remit the matter to the Tribunal for further hearing, rather than to determine those matters for myself on this appeal, I propose to refer only briefly to those arguments. I am satisfied that there is some merit in them, in the sense that, the Magistrate, had he had the benefit of the decision of the High Court in Plaintiff S157/2002 might have considered an alternative course of action. I am not to be taken as indicating that the Magistrate on further review should act in a different way, but simply that by reason of his then (understandable) view as to the scope and effect of s 474 of the Act, he did not consider it was appropriate to consider these matters and in the light of Plaintiff S157/2002 it may now be appropriate for him to do so. Reference may be made to the recent Full Court decision in Lobo at [45]-[49] considering the effect of the decision in Plaintiff S157/2002.
30 As to the first of those two matters, the Tribunal in fact wrote to the appellant on 17 May 2002 following the hearing indicating that there was an issue, which required his further consideration. The issue was whether he had accurately reported to the Tribunal his ethnicity as Tajik, or as Tajik Pashtun. It was identified in that letter that the different information he had supplied from time to time might indicate that he was not telling the truth regarding his ethnicity. As I have noted, ultimately the Tribunal was satisfied about that matter in the light of his further response.
31 The Tribunal did not indicate to the appellant at that time, or at all except to the extent that it asked him questions during the hearing, that there was a risk that a finding would be made that he had fabricated the claim that his father and brother had not been recently arrested and possibly executed in Kabul with the intent to bolstering his claim for refugee status. In fact, that is what the Tribunal found about that evidence. In the course of the hearing the appellant identified the name of a particular group who were responsible for that arrest. The transcript of the hearing explores that information, but does not convey any suggestion to the appellant that the information he was providing was not accepted by the Tribunal or that he should consider presenting further information in support of it. Instead, notwithstanding the three day period between the receipt of the information and the hearing, it inferred from two circumstances that the claim was fabricated.
32 The first circumstance was his failure to have made inquiries from the UN or the government about the circumstances of his father and brother, and the second was its view that, as members of the Khalq faction, they were unlikely to have been arrested in any event. Depending upon its view as to the integrity of the newspaper report to which reference has been made, which appears to confirm the arrest of his father and brother, the Magistrate might consider that, had the appellant been given an opportunity to comment upon such an adverse finding, he may have been able to respond to it in some meaningful way. Because of the limited role which, according to the learned Magistrate, the Tribunal had in light of s 474 of the Act, he took the view that the relevance of that article was only to provide some basis for the appellant to approach the Minister under s 417 of the Act. However, it is evidence which, had the learned Magistrate considered in a different context, might have been seen to show that the complaint made as to the adverse findings being made without notice had some substance.
33 In Aala, McHugh J said at p 121 [101]:
‘One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.’
34 In my view, there is some prospect of the appellant succeeding in that argument. Its consideration may involve not simply an analysis of the course of the hearing before the Tribunal, and the Tribunal's obligations to notify him of the potential adverse finding, but also the weight, which might be attributed to that newspaper article. See e.g. SCAN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 168 at [10] and [22] per von Doussa J…
35 It was contended also, in reliance upon Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 187 ALR 117, that in the particular case the Tribunal should have understood the appellant, at the hearing, as seeking an adjournment of the hearing, so that he could adduce further evidence as to what had befallen his father and brother. His solicitors by letter of 16 May 2002 to the Tribunal marked ‘urgent’, enclosed for the Tribunal's urgent attention, the letter from the appellant concerning those matters. It requested it be handed directly to the Tribunal member. The letter reads:
‘I have got some recent news about my family. My brother and father are being arrested by the Interim government. According to the previous experiences my father and brother are being arrested because of the links of my father and uncle with the Khalq party during the communist regime. My brother and father are being arrested because of the previous animosities. It is a clear sign and alarm of danger for me because I am the head of my family.’
The Tribunal appears not to have referred to that letter, although it records the appellant making the claim during the hearing of having been told by telephone of the arrest of his father and brother. The argument which is sought to be advanced is that because the Tribunal was aware of that fresh issue of importance to the claims, and because if investigated the claims might be confirmed independently, and where the appellant had taken steps to bring the issue immediately to the attention of the Tribunal and was unrepresented at the time, then the Tribunal was obliged to consider adjourning the application to seek further information about that, or to have asked the appellant whether he wished for such an adjournment (without any specific request for an adjournment). That is a proposition, which goes beyond what the High Court in Bhardwaj indicated. Nevertheless, it is contended that the failure to raise the prospect of an adjournment with the appellant had the substantial effect of preventing him from adequately preparing his case, and therefore depriving him of a fair hearing. Again, that is a contention which, in my view, is more suitably addressed at first instance than on appeal. I do not express any view as to its merits. If the learned Magistrate had a different, and a correct, understanding of the role of s 474 in the Act, he might have considered that issue. I suspect the learned Magistrate did not apprehend the extent of the continuing obligation upon the Tribunal to accord procedural fairness to the appellant, or more accurately that the failure by the Tribunal to do so may give rise to jurisdictional error on its part, and so did not consider it.
36 Finally, I note the argument that there was jurisdictional error because the Tribunal's rejection of the evidence about the reported arrest of his father and brother was so irrational in the evaluation of the material that there was `Wednesbury unreasonableness'. It is arguable that such unreasonableness applies to the availability of constitutional writs: see per Kirby J in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicant S190 of 2002 [2002] HCA 39. I do not propose to comment on that aspect further, other than to note the difficulties which confront the appellant in making out such a ground: see e.g. Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [91]; (2003) 198 ALR 59 at 62 per Gleeson CJ.
The matter was then referred to me for re-hearing in accordance with his Honour’s orders. As the law stands now, judicial review under section 39B of the Judiciary Act 1903 (Cth) is available for jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. By indicating what steps he would have taken to provide further evidence to the Tribunal that might have persuaded the Tribunal against making the adverse findings, the applicant has been able to show how his position could have been improved if the Tribunal had performed what he claims was its obligation to inform him of the adverse information it was taking into account: Re Minister for Immigration; Ex parte Lam [2003] HCA 6; or as put, by Moore J in Minister for Immigration v WAAG [2003] FCAFC 60, that there has been a practical injustice.
The further evidence is the newspaper article which names the applicant’s father and brother as having been arrested and certain information which he deposed to in an affidavit filed on 19 September 2003 concerning conversations which he had had with his uncle in Afghanistan about the continuing incarceration of his father and brother. The relevant extract from the Tribunal’s decision is contained between pages 89 and 90 of the Appeal Book. (This book being used extensively in the hearing before me rather than the original Court Book.) The Tribunal said:
“At the hearing the applicant claimed that he had contacted his family by telephone in May 2002 and discovered that his brother and father had been arrested. The applicant claimed his paternal uncle told him they had been arrested by the Shura Nezar which is affiliated with the Jamiat Islami. The applicant was then asked further detail about the arrest such as whether his family had sought information or assistance from the UN or the government. He stated that the line was no good so he did not ask. The Tribunal does not accept that if his father and brother were really arrested in the current situation with the UN troops keeping order that he would not have made these inquiries. Further the applicant claimed they were arrested for being part of the Khalq faction. For the reasons set out above the Tribunal does not accept, given that no action has been taken against them in the past that they would be arrested for their connection to a faction of the communist regime. The Tribunal finds that the applicant has fabricated this claim at the hearing in attempt to bolster his claim for refugee status.”
The “reasons set out above” would appear to refer to the following paragraph found at [AB 87]:
“The Tribunal finds that although the applicant’s family have been connected with the communist regime due to the fact that no action was taken against them after the downfall of the regime, the fact they did not flee Afghanistan at the time of the downfall of the regime, the fact his uncle sought refuge in the areas controlled by the Mujahideen and the fact that the applicant himself has not been involved with the Communist regime the Tribunal finds that there is no real chance the applicant will be persecuted in the reasonably foreseeable future because of his family’s involvement in the Communist regime and his fear of persecution is not well-founded.
The Tribunal finds that since the fall of the communist regime the Parcham faction have had no power and as the applicant was not targeted by them after the fall of the regime and has never been persecuted in the past by that faction there is no real chance that he will be persecuted in the reasonably foreseeable future and his fear of persecution is not well-founded.”
The applicant commences his submissions by reference to Re Refugee Review Tribunal; ex parte Aala (2002) 204 CLR 82 where at [101] His Honour McHugh J says:
“One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issue to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.” (Mahon v Air New Zealand Ltd [1984] 1 AC 808 at 820-821)
His Honour also noted that in Aala the prosecutor had been given no warning that the Tribunal might find that he had concocted his evidence but dismissed this complaint on the ground that the risk of that finding inhered in the issues and in the prosecutor’s various accounts of certain transactions. His Honour did not believe that the more serious finding of concoction required a warning either because of the particular facts.
In Aala Gauldron and Gummow JJ said at [76]:
“There is no universal proposition that before the Tribunal ever makes a finding adverse to an applicant, it is necessary for the Tribunal to put to the applicant the concerns which are inclining the Tribunal towards such an adverse finding. The procedure is inquisitorial and not adversarial.”
But their Honours approved Lord Diplock’s identification of one of the rules of natural justice in Mahon when he said at [160]:
“The second rule requires that any person represented at an enquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result.”
In Aala the risk of an adverse finding was inherent in the fact that the applicant had told two different stories to the two Tribunals which heard his application. Their Honours’ decision then turned upon whether or not the applicant was misled by the Tribunal. In the present case there is no question of such contradiction. What occurred was that the applicant introduced a new element into his claim which he had only heard about three days prior to the hearing. He had told his migration agent about this and the agent had written a letter to the Tribunal. If the transcript of the hearing indicated that the Tribunal had serious concerns about the applicant’s credibility generally then I think it would be arguable that the Tribunal had no duty to put the possible adverse finding in relation to this new information to him. But that is not the case. The transcript does not show, as many transcripts do, a Tribunal testing an applicant in detail, putting to the applicant inconsistencies or even putting to the applicant that it did not believe a particular statement. One of the main grounds upon which the Tribunal rejected the evidence concerning the arrest was that the applicant had not asked his uncle on the telephone whether the arrests had been reported to the United Nations. The transcripts reads:
“Ms X:Did your family go to see anyone in the Government or the UN forces when they were arrested?
Mr M:When?
Ms X:When your father was arrested.
Mr M:Yes… Actually because the telephone line was not pretty well, I couldn’t hear them pretty well, I didn’t ask about those (inaudible word) only just I found out about their arresting. And also in Afghanistan when the people they both enemy, whatever men we call them, they just name them because they want to get rid of them. And there is too many ways for this, if you want to just get rid of your enemies, you can name them anything, and just kill them.
Ms X:When did you telephone your family?
Mr M:Sunday, I called first and Monday I called second.
Ms X:So Monday, just (what is it, Thursday four days ago)?
Mr M:Yes this Monday.
Ms X:I just want to ask you why when you were interviewed twice by the department, three times by the department, and you filled in your protection visa application form, you never mentioned that you were half Pashtun?”
The transcript shows that the Tribunal did not probe the applicant upon the failure to ask about the reporting of the matter to the United Nations and went on immediately to another subject. (To the extent that it appears in this transcript that the applicant is being criticised in a manner which would attack his credibility, it should be stated that in the end result the Tribunal was satisfied concerning his answers about his ethnicity).
The applicant seeks to divide the finding in relation to the arrest into a positive and a negative finding. The negative finding being that the arrest did not take place and the positive finding being that the applicant deliberately manufactured the story in order to bolster his claim for refugee status. He argues that this second (positive) finding is more particularly prone to Lord Diplock’s rule than the first. I think that is probably correct. It was open to the Tribunal to make a finding that the applicant had not persuaded it that the arrest had actually taken place. Such a finding involves none of the adverse consequences of a deliberate fabrication made for an improper purpose. It seems to me that because the Tribunal took this extra step in relation to evidence that it did not indicate was in any way suspect (the question about the UN was phrased as a plain, as opposed to critical, enquiry) it did put itself in the position of leaving the applicant “in the dark” as to the risk of such a finding being made.
Because of the finding which I have made above it is not necessary for me to consider whether or not the applicant was misled by the Tribunal. Since Aala a requirement for a misleading effect of the Tribunal’s actions has been emphasised in this type of case. It was further referred to by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60 whereat [28] Gummow and Hayden JJ said:
“… and if as illustrated by Re Refugee Review Tribunal; ex parte Aala, the Tribunal tells the applicant for refugee status that it will take material into account and does not and if in reliance on that statement the applicant does not elaborate on that material, there will have been a denial of a fair hearing.”
In S154 the applicant complained at a late stage before the Tribunal that she had been raped. The applicant was reluctant to talk about the matter and the Tribunal acquiesced in this in a way which, the applicant later suggested, indicated that it had accepted her statement. A close analysis of the transcript revealed that the matter was not left there and on the facts the majority (Kirby J dissenting) held that there had been no failure to provide procedural fairness. But at [30] Hayden and Gummow JJ said:
“However, had the subject of the rape never been mentioned again after the Tribunal member acquiesced in the prosecutrix’s desire not to talk about the matter further, the prosecutrix’s argument that the hearing was unfair may have been strengthened.”
In this case the only other mention of the arrest found in the transcript after the quotation which I have given above was at the very end of the hearing when the applicant said:
“And the other thing what I want to tell you, by the time I heard about my father and about my brother, I cried a lot that they died. It was a very bad night, I couldn’t sleep for all night and even when I went to sleep because of the bad dream and nightmare, I fall down from the second
Ms X:The bunk?
Mr M: The bunk yeah and that’s, my problem.
Ms X:M, I won’t be making a decision now. What I actually want to do with your case is to go back and perhaps listen to the tapes because there are some of the things that I am not sure you said before and make sure and see what you said before.”
I would not incline to the view that the Tribunal misled the applicant even by its silence. I think that an attempt to make what is to my mind a clear case of failure to warn the applicant of a possible adverse finding where such finding could not be said to be inherent in the nature of the claim, into a form of misleading conduct in order to narrow down the categories of reviewable actions, is inappropriate. I take the comments of Hayden and Gummow JJ in S154 previously quoted and the further remark at [48]:
“This argument appears to rely on the principle that the rules of natural justice are contravened when a decision maker fails to advise an affected person “of any adverse conclusion which has been arrived at which would not obviously be open on the known material” See Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592.
to indicate that their Honours are not suggesting misleading conduct is the only ground upon which review could be provided in the circumstances of the instant or similar cases.
Furthermore, since it is not in dispute that a denial of natural justice by the Tribunal may result in a decision being made in excess of jurisdiction, notwithstanding section 474 of the Act, prohibition will issue: Aala and Plaintiff S157, the two step process must then be considered: NAFF v Minister for Immigration [2003] FCAFC 52 at [31] to ascertain whether there has been a jurisdictional error in this particular case. First, I must consider the question of the content of the requirements of natural justice in the particular factual circumstances of this case. I am satisfied that the applicant was denied the opportunity of making further representations or producing new evidence that may have convinced the Tribunal against making the adverse findings it did. Secondly, once the non-observance of those requirements is established, it is only if it is positively concluded that observance of the requirements “could not possibly have produced a different result” that the decision impugned will be allowed to stand: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 per Mason, Wilson, Brennan, Deane and Dawson JJ; Aala at 88 per Gleeson CJ, 116-117 per Gauldron and Gummow JJ, 122 per McHugh J, 130-131 per Kirby J, 154 per Callinan J.
I am satisfied from the evidence provided by the applicant (the newspaper cutting) that if review was granted he would be able to put to the Tribunal evidence which might cause the Tribunal to give a different decision from that under review: Lam at [59]. There was country information before the Tribunal found at [AB 86/87] which confirmed that persons who had been connected to the communist regime may be at risk if they return to Afghanistan. If the applicant is able to establish that his father and brother were truly arrested because of their (actual or imputed) communist sympathies and that, as indicated in the applicant’s most recent affidavit, they are still incarcerated, the Tribunal may consider that the applicant has established that he holds a well founded fear of persecution for the convention reason of political or imputed political opinion or for being a member of a particular social group, namely his family, which holds that opinion. Section 91S Migration Act would not in these circumstances be a bar to the claim.
I declare the decision of the Refugee Review Tribunal made on 25 June 2002 in RRT reference VO2/13945 to be invalid and of no effect. I order that the matter be referred back to the Tribunal differently constituted to be heard and determined in accordance with law. I order that the respondent pay the applicant’s costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate: Brant S
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