SZABM v Minister for Immigration

[2003] FMCA 245

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZABM v MINISTER FOR IMMIGRATION [2003] FMCA 245

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – whether the RRT proceeding was procedurally fair – whether the RRT failed to take into account a relevant consideration – whether the RRT erred in failing to deal specifically with a psychologist’s opinion of the applicant’s truthfulness – whether medical opinion relevant to an assessment of credibility.

Migration Act 1958 (Cth), ss.65, 424

Bushell v Repatriation Commission [1992] 175 CLR 408
Craig v State of South Australia (1995) 184 CLR 163
Ex parte Applicant S134 of 2002 v Commonwealth (2003) 195 ALR 1
Koulaxazov v Minister for Immigration [2003] FCAFC 75
Minister for Immigration v SCAR [2003] FCAFC 126
Minister for Immigration v Yusuf (2001) 206 CLR 323
NAAV v Minister for Immigration (2002) 193 ALR 449
Pierre Henri Fuduche v Minister of Immigration [1993] 45 FCR 515
Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24
Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
Re Minister for Immigration; ex parte Lam [2003] HCA 6
SBBG v Minister for Immigration [2003] FCAFC 121
WAAJ v Minister for Immigration [2002] FCAFC 409
WAJU v Minister for Immigration [2003] FMCA 199

Applicant: SZABM

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1178 of 2002

Delivered on: 13 June 2003

Delivered at: Sydney

Hearing date: 13 June 2003

Judgment of: Driver FM

REPRESENTATION

Solicitors for the Applicant: Mr R Turner
Yandell Wright Stell

Counsel for the Respondent: Mr S Lloyd

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1178 of 2002

SZABM

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 30 September 2002 and handed down on 25 October 2002.  The RRT affirmed a decision of a delegate of the respondent Minister not to grant the applicant a protection visa.  The general background facts are accurately set out in paragraphs 3 to 22 of the respondent's written submissions filed on 6 June 2003 and I adopt that statement of background facts for the purposes of this judgment:

   The applicant, a citizen of Peru, arrived in Australia on 7 December 1998.  He lodged an application for a protection visa on 20 January 1999, which application contained a statutory declaration setting out the applicant’s claims under the Convention. A submission in support of that application was made by his migration agent on 15 February 1999.

   On 17 February 1999, a delegate of the respondent invited the applicant to attend a hearing to be held on 5 March 1999.

   On 25 February 1999, the applicant’s agent provided further materials in support of the application.

   The interview with the delegate took place on 5 March 1999.

   The delegate sought and received information from Australia’s mission in Chile relevant to the applicant’s claims.

   On 11 October 2000, the delegate refused the applicant’s application.  In essence, the delegate did not believe some of the applicant’s critical claims for reasons given.

   On 1 November 2000, the RRT received an application to review the delegate’s decision.

   On 11 April 2002, the RRT invited the applicant to attend a hearing on 24 May 2002.  This invitation was accepted.

   On 21 May 2002, the applicant’s agent sent a further submission with two articles from the Sydney Morning Herald (about Australian defence force matters) and a two-page letter from Mr William Goad a “Clinical and Neuropsychologist”.  The submission did not identify any particular relevance of Mr Goad’s letter.

   On 24 May 2002, the RRT gave the applicant a hearing. The applicant was provided with a copy of country information which the RRT referred to at the hearing.  The RRT also indicated, in light of the evidence given, that it would be undertaking further researches on the situation in Peru.

   On 7 June 2002, the applicant’s agent provided a further submission, which addressed evidence given by the applicant at the hearing as well as country information provided to the applicant. This submission expressly addresses the documents which the applicant now asserts (in submissions but not in evidence) that he had no opportunity to address.

   On 19 July 2002, the RRT invited the applicant to a second hearing, to be held on 8 August 2002.

   On 1 August 2002, in response to a request from the applicant’s agent about the purpose of the second hearing, the RRT indicated that it wished to ask the RRT questions about further country information which it had found.  At the same time, it provided a copy of that material to the applicant’s agent.

   The second hearing took place, as scheduled, on 8 August 2002.

   On 12 August 2002, the applicant’s brother sent a submission/ statement to the RRT in support of the applicant, in relation to matters which arose at the second hearing.

   On 13 August 2002, the applicant’s agent sent a further submission in relation to the matters dealt with at the second hearing.

   On 25 October 2002, the RRT handed down a decision affirming the decision of the delegate not to grant a protection visa. The [RRT] set out the applicant’s claims in substantial detail (court book, pages 153-164).  It summarised those claims in the following way:

   The applicant claims that he is a Lieutenant in the Peruvian Army and was granted leave to come to Australia for a period of one month which he subsequently overstayed.  The applicant claims that he acquired this leave by bribery.  The applicant claims that when stationed in Ayachucho he reported drug dealing within the military and other human rights abuses and because of this was threatened, tortured and intimidated and had charges of disobedience made out against him.  The applicant claims that if he returns to Peru he will be killed by members of the Army Intelligence Service.  He further claims that he faces imprisonment because he has deserted the army.  The applicant also claims that as a whistleblower he cannot avail himself of adequate protection in Peru.

   Based upon a range of factors, the RRT did not find the applicant to be a credible witness.  As a consequence, it did not accept all of his claims.  It set out what it did accept as follows:

   The Tribunal accepts that the applicant is a Lieutenant in the Peruvian Army.  The Tribunal also accepts that the applicant was granted a one month leave to come to Australia.  However, the Tribunal does not accept that the applicant acquired his leave by means of bribery.  The Tribunal does accept that the applicant has overstayed his leave which makes him open to the charge of desertion on his return to Peru.  The Tribunal does not accept that the applicant was involved in exposing human rights abuses or drug dealing such that he faced harassment, false charges and threats and that he would be killed by the Intelligence Service on his return to Peru.

   In relation to any charges for desertion, the RRT considered that such charges would be made pursuant to a law of general application and that any harm would not be for a Convention reason.

2. The matter proceeded today on the basis of an amended application filed in court today.  In that application, the applicant claims a declaration, prerogative relief and costs on four grounds.  The first ground is that the RRT failed to take into account relevant considerations.  The RRT had before it a report by William Goad, clinical neuropsychologist, dated 22 April 2002 (court book, page 110).  Mr Goad found, after hearing the story of the applicant, which was said to be substantially the same as heard by the RRT:

   He told me his story very frankly and answered any questions directly.  As a psychologist of 46 years experience my opinion is that he was very truthful.

3. The amended application asserts that the RRT had no or no real regard to this specialist opinion and found that the evidence of the applicant was not believable.  The amended application quotes the relevant finding of the RRT (court book, page 175):

   The Tribunal considers that the applicant is not credible in respect of certain key aspects of his claim for protection.  At the hearings the applicant did not impress the Tribunal in his demeanour and responses in giving evidence on several key elements of his claims.  In particular the Tribunal considers that the applicant was not forthright and honest in his answers to the Tribunal but rather he tended to deflect, obfuscate and evade questions.

4. The amended application goes on to assert that the RRT gave no or no real consideration to an incident in which the applicant's car was sabotaged, as follows:

   The applicant claimed that his car had been sabotaged.  This claim was relevant as it supported his claim that he would face physical harm if he returned to Peru.

   The RRT had no regard to this claim by the applicant.  The RRT set out the claims which it considered that the applicant had made in his primary application, in his application for review and at the hearing, but did not include this claim which clearly supported the claim of persecution made by the applicant.

5. However, as appears from the respondent's written submissions, the court book indicates that in fact that incident was taken into consideration by the RRT.  I note that the issue was not pressed further in oral submissions for the applicant by Mr Turner. 

6. The first issue then relates to the treatment or non-treatment of specialist medical opinion about the applicant's truthfulness by the RRT.  This is dealt with in written submissions prepared by Mr Turner and filed on 6 June 2003 at paragraphs 10 and 11:

   The RRT failed to take account of relevant considerations:

   a. (i)The applicant submitted a report from Mr William Goad a Clinical Neuropsychologist who, having been told substantially the same matters as were set out in the applicant's primary application and his application to the RRT, opined:

   He told me his story very frankly and answered any questions directly.  As a psychologist of 46 years experience, my opinion is that he was very truthful.

   The RRT failed to have regard to this evidence and made a finding which directly contradicted it.

   The Tribunal considers that the Applicant is not credible in respect of certain key aspects of his claim for protection.  At the hearings the Applicant did not impress the Tribunal in his demeanour and responses in giving evidence on several key elements of his claim.  In particular the Tribunal considers that the Applicant was not forthright and honest in his answers to the Tribunal but rather he tendered [sic] to deflect, obfuscate and evade questions.

   (ii) The failure to accept a finding of a medical specialist is an error of law: Bushell v Repatriation Commission [1992] 175 CLR 408 per Brennan J. at para 12.

   Although s.120(3) entrusts the determination of the issue of reasonableness to the decision maker, the decision maker is bound to have regard to its own want of scientific expertise in comparison with the expertise of a responsible medical practitioner.

   Pierre Henri Fuduche v Minister for Immigration [1993] 45 FCR 515 at para 21 "… where medical science offers an answer, it is simply not rational for a lay person to brush that answer aside in favour of some theory of its own."

   …

   The failure to take account of a relevant consideration is a jurisdictional error: Craig v State of South Australia (1995) 184 CLR 163 per Brennan, Deane, Toohey, Gaudron and McHugh JJ at paragraph 14.

   If such an administrative tribunal falls into an error of law which causes it to identify the wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material … and the Tribunal's exercise or purported exercise of the power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it.

7. In his written submissions, Mr Lloyd, for the Minister, refers to this as an issue of procedural fairness but as appears from the applicant's written submissions and oral submissions made today by Mr Turner it is primarily an issue of failure to take into account relevant considerations or perhaps relevant matter in terms of the language of Craig v State of South Australia.  There is also a preliminary issue to consider whether it is open to an applicant to assert procedural unfairness based on a failure to take into account relevant considerations in the face of the privative clause.  Mr Lloyd did not himself seek to take that point but, nevertheless, I consider it is necessary to deal with it in order to deal with this aspect of the applicant's claims.

8. The general impact of the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth (2003) 195 ALR 24 was dealt with on 6 June 2003 in two decisions of the Full Federal Court: Minister for Immigration v SCAR [2003] FCAFC 126 and SBBG v Minister for Immigration [2003] FCAFC 121. In SBBG at paragraphs 18 to 20 the Full Federal Court deals with the impact of the High Court decision in S157 and also in Ex parte Applicant S134 of 2002 v Commonwealth (2003) 195 ALR 1. In paragraph 19, Their Honours say:

   Following those decisions it is clear that the reasoning of the majority in NAAV is incorrect.  It follows that NAAV is no longer binding authority.  In this regard we note the obiter comments of two members of the Full Court in Koulaxazov v Minister for Immigration [2003] FCAFC 75 at paragraphs 14 and 73…

   Their Honours contrast their view that the majority’s reasoning in NAAV is incorrect with the view expressed in paragraph 10 of Koulaxuzov:

   …that the decisions in S134 and S157 should only be followed for what they actually decided and that otherwise the reasoning in NAAV should continue to apply.

   The Full Court said:

   We also note the issue of the continuing effect, if any, of the reasoning in NAAV was left open in a number of earlier decisions.

   Their Honours say:

   In our respectful opinion the approach suggested by two members of the court in Koulaxazov is not open given the clear terms and effect of the reasoning of the High Court.

   At paragraph, 20 Their Honours say:

   In light of the High Court decisions in S134 and S157 the jurisdiction of this Court in judicial review proceedings is broader than that on which the parties and the Court proceeded at first instance.  It is clear from the High Court decisions that the Court's jurisdiction is limited to jurisdictional errors - S157 at [76] - and that in determining whether or not a particular error is a jurisdictional error it is necessary to have regard to the whole of the Act including section 474: see S157 at [77] and [78]. However, this is a significantly broader jurisdiction than that assumed by the primary judge and the parties.

9. In Minister for Immigration v SCAR at paragraph 20 the same approach was taken by the Full Federal Court and indeed the decision of the court in SBBG was referred to with approval.  I am bound by the decisions of the Full Federal Court and note that the reasoning of their Honours does appear to be broadly consistent with what I said in WAJU v Minister for Immigration [2003] FMCA 199 at paragraphs 9 to 14. At paragraph 12 I said:

   The decision of the High Court is relatively clear and straight forward.  The majority judgment makes it clear that the RRT cannot authoritatively determine the limits of its own jurisdiction.  In order to be constitutionally valid section 474 must be read subject to the court's right to provide prerogative relief if the RRTs jurisdiction is exceeded: Plaintiff S157 at [75] and [76]. I see nothing in the decision of the High Court that would limit this principle to cases of procedural unfairness. Neither do I see anything in the decision that would establish a hierarchy in jurisdictional errors. It appears to be implicit in the decision of the High Court that jurisdictional error has the meaning given to that term in Minister for Immigration v Yusuf (2001) 206 CLR 323.

   To the extent that the issue was left unresolved in Plaintiff S157 the doubt appears to have been removed in Ex parte Applicant S134. The Court in that case seems to have taken the view that if a failure to take into account a consideration relevant to a decision under s.65 of the Migration Act 1958 (Cth) (“the Migration Act”) could have been established. The privative clause would not have protected the decision. It appears to me that the High Court in those two cases decided that a decision vitiated by any jurisdictional error would not be protected by the privative clause but that not all errors of law amount to jurisdictional error. In particular, the High Court cautioned that the privative clause will bear on a consideration of whether a legal error constitutes jurisdictional error. This is particularly important when considering failures to follow the requirements of the Migration Act.

10. The conclusion that I draw is that notwithstanding the privative clause it is open to an applicant to assert jurisdictional error based on the explanation of that concept in Craig and Yusuf including a failure to take into account relevant considerations. 

11. In relation to the opinion of Dr Goad, Mr Lloyd, in his submissions at paragraphs 23 to 27, raises a number of matters.  I also raised some of these with Mr Turner in oral argument.  The first difficulty I have with this aspect of the amended application is that in my view an assessment of the credibility of an applicant and the claims made by an applicant is for the RRT and it is not properly a matter for expert evidence. 

    
    

    I accept that there may be circumstances in which the RRT requires the guidance of expert medical opinion.  For example, where there may be an issue about the mental capacity or mental state or psychological state of an applicant.  However, there was no such issue in this case.  What happened was that the applicant volunteered a statement from a medical professional that he appeared to be truthful in his claims.  The effect of the volunteering of that statement was to raise before the RRT the issue of the applicant's credibility.  In the circumstances, the RRT was bound to deal with that issue of credibility and indeed it may have needed to in any event in order to properly rule on the applicant's claims.

12. The RRT did deal with the issue of credibility.  It found that the claims made by the applicant were not credible in important respects and that the applicant did not himself present as a reliable witness.  Some claims by the applicant were accepted but critical claims were not. 

    
    

    I am satisfied that the RRT did deal with the issue of credibility raised by the applicant in its decision.  It is true that the RRT did not refer specifically to Mr Goad's opinion.  The RRT only referred to certain factual statements made by Mr Goad, not to his opinion.  Mr Turner put to me that that constitutes a failure to take into account relevant matter.  I reject that submission.  In my view, the RRT was bound to make its own assessment of credibility.  It would have been an error of jurisdiction to abrogate that responsibility by relying on medical opinion that was not reasonably called for in the context of the particular case.

13. In addition, it was only the issue of credibility that needed to be dealt with, not the specific opinion of Mr Goad.  In that regard I accept Mr Lloyd's submissions at paragraphs 25 and 26 of his written submissions:

    The RRT is under no obligation, in its reasons, to refute every item of evidence which is contrary to its findings: Re Minister for Immigration, ex parte Durairajasingham (2000) 168 ALR 407, McHugh J at [65] and [67]. As a consequence, there is no proper basis for the Court to infer that (contrary to its express statement) the RRT had failed to have regard to the whole of the letter.

    In any event, the question of the credibility of a witness is a matter for the RRT: Durairajasingham at [67]:

    … this was essentially a finding as to whether the prosecutor should be believed in his claim — a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.

    I find therefore that there was no jurisdictional error committed by the RRT in dealing either generally with the issue of credibility or specifically with the opinion of Mr Goad. 

1. In addition, I make the observation that if the applicant had been accepted as an entirely truthful witness making truthful claims he would have created for himself some difficulty.  The applicant made his claims for persecution on the basis of his membership of a particular social group; that of Peruvian military personnel who pursued their duty in an honest and diligent manner (court book, page 154).  The applicant also presented material to the RRT claiming that he was able to come to Australia by bribing his military superiors to process a leave application that may not otherwise have received favourable attention.  Bribery is of course a corrupt act.  Even if he had been accepted as truthful the applicant would have been placed in difficulty in establishing his membership of the particular social group he relied upon based upon that corrupt act.  When I put that to Mr Turner he sought to explain it on the basis that corruption was endemic in Peru and that the particular act ought to be excused because of the greater harm that the applicant was seeking to avoid.  To my mind that is a bit like saying that one can be a little bit pregnant.  In my view, one is either corrupt or one is not.  The issue is not of particular significance in these proceedings because the claim by the applicant as to how he came to Australia was rejected by the RRT.  However, it does point to an internal contradiction in the case presented by the applicant. 

2. I also observe for completeness that there is no necessary inconsistency between the adverse finding by the presiding member of the RRT on credibility and the statement by Mr Goad.  I say that because the applicant presumably told his story fully to Mr Goad and set out a number of facts.  The critical elements of the applicant's claims relate to the alleged corruption of a General Marky, a very senior officer in the Peruvian military.  The applicant's claims centred on the fact that the applicant had sought to bring to public notice General Marky's corruption and was at risk because of it.  It is entirely plausible that the applicant's description of these circumstances to Mr Goad had the ring of truth about it.  It would have had the ring of truth because the applicant was describing real events.  The description of real events is much easier to present than the description of fabricated events.

3. There really was and presumably still is a General Marky in Peru.  He was a very senior Peruvian military officer.  He was accused of corruption.  Indeed it became a notorious matter of public knowledge in Peru.  All of this became apparent in the course of the two hearings before the RRT.  However, what the RRT found was that the applicant was seeking to attribute to himself the exposure of General Marky, that had in fact been undertaken by another Peruvian military officer.  Thus, that while the basic facts relied on by the applicant were real facts the applicant's involvement in those notorious events in Peru was not substantiated.

4. The second ground of the application is that the RRT is said to have failed to treat the applicant fairly.  The particulars given are that first the RRT failed to take into consideration the corrupt nature of public administration in Peru at the relevant time as set out in country information relied upon by the RRT in assessing the applicant's claim of bribing a government official in order to obtain leave from the army in Peru; and secondly, that the RRT selectively quoted from country information in a way prejudicial to the applicant when a consideration of the country information as a whole supported the applicant's claims.

5. There was a suggestion in respect of this ground of the application that in addition to a breach of the rules of procedural fairness a jurisdictional error might be established by reference to a more general concept of fairness having been breached.  To the extent that that proposition is put to me I reject it.  In my view, there is no general concept of unfairness leading to jurisdictional error separate from the accepted principles of procedural fairness.  With that thought in mind I note that I prefer the expression procedural fairness to natural justice, which focuses less clearly on the necessary elements requiring consideration in addressing this aspect of jurisdictional error.

6. The RRT rejected the applicant's claims about how he came to Australia by bribing his superiors in order to approve a leave application that permitted him to travel to Australia.  On page 176 of the court book the presiding member said this:

   The Tribunal does not accept that the applicant's leave to come to Australia was granted illegally and by bribery unbeknown to his immediate superiors.  The Tribunal considers the applicant's description of how he acquired this leave to be implausible.  The applicant claims that he was able to acquire leave to Australia by paying money to a person responsible for handing documents to the General which required the General's signature.  This person slipped in a leave form for the applicant which the General signed without checking and in this manner the applicant was able to gain leave without going through the normal channels and without his immediate superior's knowledge. TheTribunal considers it to be implausible that a General would simply sign forms without checking the details as to what he was signing.  Further, the Tribunal notes that on the applicant's leave form it states that the leave is granted for the specific purpose of travel to Australia.  The Tribunal considers that this alone would make the leave request unusual and out of the ordinary and open to more than an “automatic” signature.  The Tribunal further considers it to be implausible that the applicant is able to obtain leave which involves overseas travel approved by higher authorities without the express permission or at least express knowledge of his immediate superior.

7. I do not myself subscribe to the view that it is implausible that a general would simply sign forms without checking the details of what he was signing.  Ordinary human experience tells us that it is unfortunately common for busy people holding senior positions to sign documents without giving any or proper consideration to what they are signing.  Commonly, busy people in senior positions place great trust in their subordinates to tell them when they need to concentrate on particular documents or not.  Sometimes that trust may be abused.  In some countries payments may be used in order to secure that kind of advantage.

8. Nevertheless, it is not for me to review the merits of the RRTs decision.  The RRT plainly considered this aspect of the applicant's claim and rejected it.  The complaint in the amended application is that the RRT did not do so fairly.  However, in my view there is no substance to that assertion.  The decision and reasons of the RRT read as a whole establishes that the RRT had before it a substantial body of material dealing with corruption in Peru and the RRT appears, in my view, to have accepted almost as a given the existence of that corruption and, indeed, of continuing human rights abuses in Peru.

9. The particular finding by the presiding member in relation to the leave application was made on the basis of her perception of that particular claim and the way it was put.  It was not made in ignorance or without having regard to general information about corruption.  As to the claim of selectively quoting from country information, Mr Turner took me to passages in the decision and reasons of the RRT (court book, pages 170 to 172).  In those passages the presiding member quotes from US country reports and from a Human Rights Watch Backgrounder.  The documents quoted from are reproduced in the supplementary court book.

10. It is apparent from a reading of the full documents that only certain passages from the full documents have been reproduced in the RRT’s reasons.  It is also apparent that the manner in which these passages have been reproduced gives the appearance that the passages quoted are contiguous, whereas in fact they are not.  It would certainly have been better if the presiding member had made clear in quoting passages from the country information that parts of the country information between those passages had been omitted.  However, the failure to do so does not of itself establish any procedural unfairness.

11. The full country information was clearly before the RRT.  The RRT was entitled to make use of those parts of the country information that it saw as particularly relevant.  It does not appear to me that the issue of corruption in Peru or the issue of ongoing human rights abuses was in dispute.  What the RRT was particularly focusing on was the extent to which Peru had made serious efforts to deal with military corruption at senior levels and to come to grips with institutionalised human rights abuses under the former Fujimori government.  That is what the passages quoted in the RRT decision deal with.  In my view that was a reasonable and legitimate approach for the RRT to take.

12. In order to succeed in the ground advanced at paragraph 2(b) of the amended application it would also be necessary for the applicant to establish that he had been prejudiced.  It is apparent from the decision of the High Court in Re Minister for Immigration v Lam [2003] HCA 6 that procedural unfairness in law cannot be established unless there is procedural unfairness in fact. The applicant would need to satisfy me that an opportunity had been lost which had a bearing on the outcome of his application.

13. Mr Lloyd took me at some length through the court book in order to demonstrate to me that all of the relevant country information had been produced to the applicant or his legal advisers.  Mr Lloyd submitted to me that the conduct of this matter by the RRT was a “poster boy”, in his words, of procedural fairness.  Mr Turner contested whether all of the relevant material was provided to the applicant or his legal advisers.  The court book does not conclusively resolve that fact or issue but neither does it indicate that anything had been left out. 

14. No procedural unfairness in fact has been proven in the way in which the RRT dealt with the country information.  The applicant was given two hearings before the RRT.  In relation to the second hearing the applicant was told in advance what country information would be addressed by the RRT.  Several batches of country information were sent to the applicant for his legal advisers to deal with as they saw fit.  It was open to the applicant and his advisers to put before the RRT what they wished from that country information. 

15. Even if the RRT had not disclosed country information to the applicant at all it would, in my view, have been open to the respondent to rely upon s.424A(3) of the Migration Act. I have previously found that that section excludes the operation of the common law in relation to any obligation on the RRT to provide to an applicant information covered by s.424A(3)(a). In making that decision I took the view, and remain of the view, that I am bound by the decision of the Full Federal Court in WAAJ v Minister for Immigration [2002] FCAFC 409 that the effect of s.424A(3) is to exclude the operation of the common law.

16. The third ground in the application is that the RRT’s process and investigations denied the applicant procedural fairness.  The particulars given relate to the opportunity given to the adviser to address country information, the assertion that the RRT did not provide details of research to the applicant and give him the opportunity to respond to it.  The fourth ground is that the applicant was denied procedural fairness in that the applicant was entitled to a fair hearing before the RRT and a component of a fair hearing was that all material put before the RRT would be considered by the RRT and, in addition, that the failure by the RRT to consider the psychologist's report denied the applicant a fair hearing.

17. I have already dealt with the issue of the treatment of the psychologist's report. I reject the contention that the manner in which the RRT dealt with the issue of credibility and the psychologist's report, in particular, was in any sense unfair. I have also dealt with the provision of country information. I do not need to add to what I have said in relation to that. In respect of the assertion that a component of a fair hearing is that all material put before the RRT would be considered by the RRT it is necessary to have regard to s.424 of the Migration Act. Subsection 424(1) provides:

    That in considering the review a Tribunal may get any information that it considers relevant.  However, if the Tribunal gets such information the Tribunal must have regard to that information in making the decision on the review.

18. In oral argument Mr Turner submitted that s.424(1) of the Migration Act had been breached in that the RRT used the country information before it selectively and incompletely. In considering whether a breach of s.424(1) constitutes jurisdictional error it would be necessary to consider the impact of the privative clause. It is in my view arguable that in the light of the privative clause a breach of s.424(1) may only amount to an error of law within jurisdiction. However, it is not necessary to resolve that question because, as I have already stated, on a fair reading of the RRT decision as a whole and having regard to the manner in which country information was dealt with by the RRT, as is apparent from the court book as a whole, it is reasonable to conclude that all the country information put before the RRT was considered by the RRT. The selective quoting from that country information by the RRT is explained simply on the basis that the RRT was concentrating on those elements of the country information that it regarded as of particular relevance or significance.

19. I therefore reject the contention that there was a breach of procedural fairness by the RRT failing to consider country information that was before it or put before it.

20. There is no suggestion that the Hickman provisos to the operation of the privative clause have not been satisfied.  I find that no jurisdictional error has been committed by the RRT in making its decision in this matter.  Accordingly, the decision of the RRT was a privative clause decision.  I will dismiss the application.

21. On the question of costs, Mr Lloyd seeks an order for costs on behalf of the Minister. There is, in my view, no question that an order for costs of some amount should be made in favour of the Minister.  Mr Lloyd submits that an order on a party party basis in the sum of $6,400 would be appropriate.  Mr Turner submits that such an order would be excessive in the context of this matter.  There are two issues relevant to the quantum of an award of costs.  One is the complexity of the matter and the other is the conduct of the parties.

22. This was a reasonably complex matter.  It was certainly not what I would describe as a routine or average matter.  Serious issues were raised by the applicant and written submissions were prepared by Mr Turner which raised some novel and serious points which required a response by the Minister's legal advisers.  I do not consider that the conduct of the proceedings by the applicant's legal advisers is the subject of any necessary criticism.  The application was amended today and written submissions were prepared by the applicant fairly late in the day, but the respondent's legal advisers were given reasonable prior notice of what the applicant would be asserting before the hearing.

23. In my view, an order for costs in the sum of $5,000 is reasonably called for in this matter.  I will order that the applicant pay the respondent's costs and disbursements of and incidental to the application, which I fix in the sum of $5,000. 

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

Associate: 

Date:  26 June 2003