SZAFE v Minister for Immigration
[2003] FMCA 410
•3 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAFE & ANOR v MINISTER FOR IMMIGRATION | [2003] FMCA 410 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – two applicants heard together by the RRT – whether s.429 of the Migration Act 1958 (Cth) breached – whether the joint hearing was unfair – whether the RRT decision was unreasonable – whether the second applicant was afforded an opportunity to put her case to the RRT. |
Acts Interpretation Act 1901 (Cth), s.31
Independent Commission Against Corruption Act 1988 (NSW), s.31
Migration Act 1958 (Cth), ss.65, 414, 422B, 424, 424A, 427, 429, 431, 439, 474, 476
Abebe v Commonwealth (1999) 197 CLR 510
Applicant NAHV of 2002 v Minister for Immigration [2003] FCAFC 102
Dickason v Dickason (1913) 17 CLR 50
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Minister for Immigration v Eshetu (1999) 197 CLR 611
NAAH v Minister for Immigration [2002] FCAFC 354
NAHJ v Minister for Immigration [2003] FCA 102
National Companies and Securities Commission v Bankers Trust Australia Ltd (1989) 24 FCR 217
Plaintiff S157/2002 v Commonwealth of Australia (2003) 77 ALJR 454
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82
Selliah v Minister for Immigration (unreported, R D Nicholson J, 24 April 1998)
Selliah v Minister for Immigration [1999] FCA 615
Scott v Scott [1913] AC 417
First Applicant: Second Applicant: | SZAFE SZAFF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ230 of 2003 |
| Delivered on: | 3 October 2003 |
| Delivered at: | Sydney |
| Hearing date: | 15 September 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
| Solicitors for the Applicants: | Mr M Jones Michael Jones, Solicitors |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed in relation to the first applicant.
A writ of certiorari issue quashing the decision of the RRT made on 24 December 2002 in relation to the second applicant.
A writ of mandamus issue requiring the RRT to redetermine the protection visa application of the second applicant according to law.
There be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ230 of 2003
| SZAFE |
First Applicant
SZAFF
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 24 December 2002 and handed down on 29 January 2003. The RRT affirmed a decision of a delegate of the respondent not to grant protection visas to the applicants. There are two applicants, a husband (the first applicant) and a wife (the second applicant). Both are citizens of Sri Lanka.
The applicant husband arrived in Australia on 2 August 2000 and on 5 September 2000 he lodged an application for a protection visa. On 21 September 2000 a delegate of the Minister refused that application and on 26 September 2000 the applicant husband applied to the RRT for a review of that decision.
The applicant wife arrived in Australia on 20 September 2001 and on 27 September 2001 lodged an application for a protection visa. On 21 November 2001 a delegate of the Minister refused that application and on 30 November 2001 the applicant wife applied to the RRT to review that decision.
Both applicants were invited to attend hearings of the RRT on 3 December 2002. The hearing of the applicant husband’s application was scheduled for 9.30am and the hearing of the applicant wife’s application was scheduled for 12.00pm. However, the applicant husband was informed prior to the hearing that the hearing of both applications would take place at the same time, 9.30am on 3 December 2002. The decision handed down by the RRT on 29 January 2003 related to both applications.
The application for review filed on 25 February 2003 by both applicants was superseded by an amended application filed together with a notice of change of address for service on 17 July 2003. This followed the applicants obtaining legal representation. In the amended application the applicants seek a declaration that the decision of the RRT is not a privative clause decision. The applicants also seek declarations of invalidity. The grounds of the application are:
a)the RRT failed to exercise its jurisdiction because it did not give either of the applicants a private hearing, as required by s.429 of the Migration Act 1958 (Cth) (“the Migration Act”). This ground is advanced jointly and separately for each applicant;
b)in respect of the first applicant’s claim to be a refugee, the RRT’s conclusion that his claims in relation to his escape from prison were insufficiently detailed was contrary to the entirety of the evidence and so unreasonable that no reasonable tribunal could have come to that conclusion; and
c)in respect of the second applicant’s claim to be a refugee, the RRT failed to give her an opportunity to state her case and therefore failed to exercise its jurisdiction to review the totality of the applicant’s claim to be a refugee.
The evidence
The applicants rely upon affidavits filed in court on 15 September 2003. The applicant husband deposes that he received a telephone call on 2 December 2002 by a person from the RRT who advised him that the presiding member did not want to hear the applications separately and asked them both to attend at 9.30am the following day. He deposes that he was not given an opportunity to object to this arrangement. The applicant husband deposes that although the applicant wife was sent out of the hearing room while he gave the bulk of his evidence, she was brought in afterwards and he felt uncomfortable in talking any further about his case when he was given the opportunity to do so. The applicant husband deposes that he was concerned that his wife might reveal his evidence to members of their church group.
The applicant wife deposes that she was told by her husband on 2 December 2002 that they had to attend together before the RRT at 9.30am the following day. She deposes that at no time was she told that she had the right to a private hearing of her application and says that she did not become aware of that right until recently.
The applicant wife deposes that she was not comfortable in presenting her case in the presence of her husband, a witness produced by the applicants and the applicant husband’s interpreter. She annexes the transcript of the RRT hearing which contains a statement by her that she could not speak to her husband about her claims.
Both applicants were cross-examined on their affidavits. The applicant husband admitted that he did not say anything to the presiding member about being uncomfortable with his wife present. The applicant wife admitted that she did not say anything apart from what appears on transcript. I also listened to a sound recording of parts of the RRT hearing in order to clarify aspects of the transcript. The sound recording was tendered in evidence: exhibit A1.
Submissions
Mr Jones, for the applicants, submits as follows:
Pursuant to s.429 of the Migration Act the RRT must conduct a hearing in private. Emmett J observed the following in relation to this requirement[1]:
[1] Selliah v Minister for Immigration [1999] FCA 615 at [36].
There are good policy reasons for such a requirement. An applicant for a protection visa should be confident that nothing said in the course of a hearing would find its way back to the authorities in the country in which he or she claims to be persecuted.
However, the requirement that the RRT conduct the hearing in private is not qualified to mean that it only need ensure against information reaching the ears of the authorities in the applicant's country. The office of the UN High Commissioner for Refugees advises in relation to the examination of refugee applicants:
It will be necessary for the examiner to gain the confidence of the applicant in order to assist the latter in putting forward his case and in fully explaining his opinions and feelings. In creating such a climate of confidence it is, of course, of the utmost importance that the applicant's statements will be treated as confidential and that he be so informed.
The "climate of confidence" includes satisfying the applicant that details of persecution suffered are not revealed to third parties, including close family members, without the consent of the applicant.
Section 429 is expressed in absolute terms and does not allow the Tribunal any discretion. Third parties such as interpreters, witnesses or members of the public may only be admitted to the hearing with the informed consent of the applicant.
At the commencement of the hearing the member announced the following procedure (transcript 1.9):
The way I would like to proceed is to have you together at the beginning just to explain to you the process that we will follow today in the hearing and then I would ask the witness to leave the room and also the wife to leave the room and then I will interview the applicant and then I will ask you to come into the room and I will ask you a question and then we will ask the witness to also come in to give evidence. If we proceed in that way is that agreeable to you?
Despite the final question apparently seeking consent from the applicants, the fact that the member did not inform them that they had a legal right to a private hearing meant that any acquiescence was not informed consent. Moreover, the member did not stipulate whether the husband would be allowed to remain while the wife gave evidence.
After the husband had given the main part of his evidence the wife was called in and the hearing of her case proceeded in the presence of the husband and his interpreter as well as the witness who had been mistakenly brought in and to whom the member extended a gratuitous invitation to remain. She was not at any stage asked if she consented to this arrangement. In fact, after bringing the wife into the room the member waited while the husband and interpreter went to the toilet before beginning to question her. She also ascertained that the husband spoke English, as the wife was not using an interpreter.
The wife made it clear to the RRT that she was unable to talk about a significant part of her case because of the presence of her husband and, presumably, the interpreter and witness (transcript page 28.3, clarified by wife's affidavit para 7). If there had been any doubt as to the wife's lack of consent to their presence during her hearing it must have been dispelled at this point. However, the RRT did not offer to change the arrangements in the hearing room.
After hearing from the witness, the RRT then addressed both of the applicants together and asked if they had any "concluding statements" to make (transcript page 39.4). The interpreter and witness remained in the room. The husband believes he was inhibited from talking further about his case because of the presence of the witness (husband's affidavit para 4).
Unreasonableness
The RRT rejected the husband's claim that he was detained for six weeks prior to his trip to Australia (court book, page 153.7). Without further argument the RRT then went on to conclude that he had [not] been detained at all on the grounds of suspicion of LTTE association or that he faces detention on his return to Sri Lanka as an escapee (court book, page 154.3).
The RRT’s only reason for coming to this conclusion appears to be "the inability of the applicants to provide any detail" about the escape. In the circumstances of a person being taken from a prison blindfolded at night and then released into the custody of his father (see transcript, page 13.5), it is unreasonable to expect that any further detail could be provided. By contrast, the applicant was able to give significant detail concerning the arrest itself and his treatment while in prison.
The RRT should have considered the possibility that it was wrong in concluding on the basis of that one aspect of the evidence that the whole of the applicants' claims were fabricated. No reasonable decision maker could have reached the level of satisfaction required by the "real chance test" of a well-founded fear on the basis of the totality of the evidence before it.
Failure to allow an opportunity to put a case
This ground relies essentially on the arguments put in respect of the first ground.
In effect, the RRT treated the wife as if she were merely a witness in the husband's case, ignoring the fact that she had made a substantive claim in her own right.
Mr Jones submits that whether or not the wife consented to a single hearing, she did not consent to her husband being present when she gave her evidence. Neither did she consent to his interpreter being present. Mr Jones also submits that s.414 of the Migration Act has been breached in respect of the applicant wife in that there was, in substance, no review of her application. She was treated by the presiding member simply as the wife of the applicant. Mr Jones submits that if it is possible for an applicant to consent to a joint hearing of an application with another application, that consent must be informed consent and that there was no informed consent in this case.
Mr Smith, for the Minister submits as follows:
First ground – Section 429
There are three questions raised by this ground. First, what exactly is the obligation imposed upon the RRT by s.429 of the Migration Act? Second, did the RRT fulfil that obligation? Third, if not, did it thereby commit a serious jurisdictional error? There also remains the question of the exercise of discretion. That question is dealt with further below.
Section 429 of the Migration Act provides:
The hearing of an application for review by the Tribunal must be in private.
The words “in private” are not defined in the Act and are not referred to in the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”). Accordingly, they must be construed according to their ordinary usage and in order to give effect to the scope and purpose of the provision in the context of the Act as a whole.
The relevant primary meaning of “private” is “not open to the public”: The New Shorter Oxford English Dictionary, 4th Edition, 1993, p. 2359. The word “public” is given the meaning in the same source (at page 2,404) as “open or available to, used or shared by, all members of a community; not restricted to private use”. That common usage is in accordance with the general law relating to private hearings, or, using other terminology hearings in camera: see National Companies and Securities Commission v Bankers Trust Australia Ltd (1989) 24 FCR 217, 221. At law, the fundamental, though not inflexible rule is that courts (and tribunals) ought to conduct their hearings in public: Scott v Scott [1913] AC 417 at 439. However, that general rule may be excluded by statute or the rules of any particular court or tribunal: Dickason v Dickason (1913) 17 CLR 50 at 51.
Of course, as stated above, the extent of the obligation to hold hearings in private must be viewed in light of the context of the Act and the purpose of the provision. It is this rule of construction which may cause the procedure to be followed by the RRT [to] differ from the procedure followed by other tribunals which hold or may hold their proceedings in private: for example, the then National Companies and Securities Commission and the Independent Commission Against Corruption. See Independent Commission Against Corruption Act1988 (NSW) (“the ICAC Act”), s.31(1). Those bodies, though dealing with and potentially affecting, the interests of individuals, are entitled to take evidence in the absence of those individuals. The applicant in this case does not suggest that the RRT is obliged to follow such a procedure. The RRT, unlike the Independent Commission Against Corruption and the then National Companies and Securities Commission is a body which is both inquisitorial and, to some degree, adversarial (although there is no opponent or contradictor: see Abebe v Commonwealth (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ). For example, the RRT may under s.424(1) get any information that it considers relevant to the review, may under s.427(3) summon a person to appear before the RRT to give evidence, to produce documents to the RRT and/or to give evidence under oath or affirmation. None of the express provisions in Division 4 of Part 7 of the Migration Act (which sets out the procedures to be followed by the RRT in conducting a hearing on review) excludes the rules of natural justice: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. [In this regard it is common ground that s.422B of the Migration Act does not apply in this case].
The obligation in s.429 must also be construed in light of the prohibition under s.431(2) on the RRT from publishing any statement which may identify an applicant or any relative or other dependant of an applicant: Selliah v Minister for Immigration (unreported, R D Nicholson J, 24 April 1998) upheld on appeal Selliah v Minister for Immigration [1999] FCA 615. On appeal Emmett J said, at [36]:
There are good policy reasons for such a requirement (that the hearing take place in private). An applicant for a protection visa should be confident that nothing said in the course of the hearing could find its way back to authorities in the country in which he or she claims to be persecuted.
The force of this statement (which is binding on this Court) is not in any way diminished by reference to the handbook prepared by the United Nations High Commission for Refugees (see applicant’s submissions…). There is no legal basis for construing provisions of domestic legislation by means of a document prepared by an international body which does not purport to have agreement of all or any of the signatories to the United Nations Convention Relating to the Status of Refugees and the Protocol to that Convention.
It is submitted in light of the context of s.429 that the obligation upon the RRT to hold a hearing in private is no more than an obligation to exclude members of the general public from the hearing. In this case, the RRT heard evidence from the applicant husband without any other person being present. The applicant husband can have no complaint in respect of that procedure. The RRT then heard evidence from the applicant wife in the presence of the applicant husband. It is not contended by the applicants that the applicant husband was “a member of the public” and there was no objection to his presence at the time. Similarly, if it be the fact, the presence of the witness was not in breach of s.429 of the Act. There was no question but that the witness was aware of the identity and claims of the applicants and no objection was taken to her presence at the conclusion of the hearing.
For these reasons, there was no breach of s.429 of the Act.
Even if there were a breach of s.429, it must be established by the applicants that that breach constituted a jurisdictional error because the obligation was an imperative duty or an inviolable limit or restraint on the exercise of the RRT’s power: see Plaintiff S157/2002 v Commonwealth of Australia (2003) 77 ALJR 454 at [76]. As the majority said in that case at [69]:
It should be noted that it may be that, by reference to the words in Section 474, some procedural or other requirements laid down by the Act are to be construed as not essential to the validity of a decision.
This is the case for example in respect of s.424A(2) which requires that the obligation on the RRT under sub-section (1) is to be given to the applicant in a particular manner: NAHJ v Minister for Immigration [2003] FCA FC 102 at [22]. Section 429 appears in Division 4 of Part 7 of the Migration Act. Read in light of its context, including the other Divisions of Part 7, and the provisions therein going to protect the identity of applicants for review of protection visa decisions (such as ss.439, 440 and 431) as well as the provisions in s.474 of the Act, it cannot be said that Parliament intended that a breach of that provision would invalidate the decision of the RRT: Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355.
For these reasons the RRT’s decision is not affected by jurisdictional error by reason of the manner in which it conducted the hearing.
Second ground - unreasonableness
In considering any submission that a RRT’s decision or an anterior finding of fact is unreasonable the caveat expressed by Gleeson CJ and McHugh J in Minister for Immigration v Eshetu (1999) 197 CLR 611 at 626 must be borne in mind:
Someone who disagrees strongly with someone else’s process of reasoning on an issue of fact may express such disagreement by describing the reasoning as ‘illogical’ or ‘unreasonable’, or even ‘so unreasonable that no reasonable person could adopt it’. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.
Further, as Mason J pointed out in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 42, when the ground of asserted unreasonableness is giving too much or too little weight to one consideration or another a Court should proceed with caution lest it exceed its supervisory role by reviewing the decision on its merits.
In this case the first applicant seeks to impugn the RRT’s conclusion of fact that the applicant does not face detention on his return to Sri Lanka because he is an escapee. The applicant claimed in the statement made in support of his protection visa application (court book, pages 27-33) that on 7 June 2000 he was arrested and taken to the Mount Lavinia police station. From there he claimed that he was taken to the Colpetty police before being transferred to Welikada security prison. It is from that prison that he claimed to have escaped on 17 July 2000 at midnight: (court book, page 32 at paragraph 31). The RRT (court book, page 153.9) rejected the claim that the applicant husband was detained for six weeks prior to his trip to Australia. It was a logical extension of this finding that the RRT rejected the applicant’s claim to be an escapee. If the applicant was not an escapee then the applicant could not face detention on the basis of being an escapee. There is nothing illogical or unreasonable about the conclusion to that extent. Further, contrary to the applicant’s submissions (paragraph 16), the RRT’s reason for the finding in respect of detention was not only that the applicant was unable to give any detail about the escape but rather the following were the express reasons for the RRT rejecting that particular claim:
The applicant’s giving of evidence in regard to the circumstances by which the police obtained the applicant’s passport, the manner in which he was able to escape from detention, and the witness’s evidence which contradicted that of the applicant’s in regard to the length of his detention…
These particular reasons were open on the material before the RRT and have not been attacked by the applicants.
This ground should be rejected.
Discretion
It is submitted that, even if the Court finds that there is a jurisdictional error by reason of the failure by the RRT to comply with s.429 of the Migration Act, no relief ought to be granted. The applicants did not raise any objection to the course taken by the RRT even though the RRT asked the applicants at the commencement of the hearing (transcript, pages 1-2).
Reasoning
At the outset I should say that the RRT is inappropriately named as the second respondent to the application. The only proper respondent to this application is the Minister.
The claim of breach of s.429 of the Migration Act is novel, in as much as I am not aware of the issue coming before this Court previously and there is very little authority on the interpretation of the section by other courts. The section provides:
The hearing of an application for review by the Tribunal must be in private.
The words “in private” are not defined in the Act and neither is the Acts Interpretation Act of assistance. Mr Smith took me to the definition of “private” in the New Shorter Oxford English Dictionary which establishes at least that “private” means “not in public”. Mr Smith’s comparison of s.429 with s.31(1) of the ICAC Act is of limited utility. Of more utility is the explanatory memorandum to the Migration Reform Bill 1992 which introduced s.166DF of the Migration Act, which became s.429. Paragraph 377 of the explanatory memorandum states that:
This section provides that the review must be in private. This protects applicants and their families as there is a risk that if refugee claims are dealt with in public they may give rise to difficulties for dependents remaining in the country of origin. At the outset of processing, persons seeking protection on refugee status grounds are assured that all details of their applications will be kept strictly confidential. In particular they are assured that all information will under no circumstances be passed to authorities in their own country. This is essential to ensure that applicants are willing to canvass their reasons for seeking protection in an open and frank manner. This section is intended to allow the same guarantee of confidentiality at the review stage.
I find that the policy underlying s.429 is to protect applicants and their families from harm that may arise from the hearing of a protection visa application if information about the application became known in the applicant’s country of origin. I further find that the protection afforded by s.429 bears specifically upon an RRT hearing. Other provisions of the Migration Act provide a similar protection at an earlier stage of the processing of a protection visa application. In Selliah v Minister for Immigration His Honour Nicholson J considered s.429 in the circumstances of a “tandem” hearing, that is, the hearing of an application conducted in part in tandem with the hearing of another application. His Honour said:
“The second way in which it is said the conduct of the hearing in this tandem fashion offended the Act was in relation to the requirements of s.429. That requires the hearing of an application for review by the Tribunal “must be in private”. It is accepted for the applicant that the evidence “private” to each applicant was in fact heard in private. It is submitted, nevertheless, the exposure of the applicant’s identity to a person (the other applicant) not subject to the confidentiality provisions of s.439 of the Act contravened the requirement of s.429. Therefore it is submitted the hearing falls for review under s.476(1)(a) of the Act [the then applicable ground of review] as a failure to observe procedures required by the Act or, alternatively, under s.476(1)(e) [now also not relevant] as an error involving an incorrect interpretation of the applicable law.
Section 429 is to be understood in the context of subsection 431(2) which provides the Tribunal must not publish any statement which may identify an applicant or any relative or other dependant of the applicant. Also s.439(3) provides a duty of non disclosure of confidential information.
Again, in this case there was not truly a ‘tandem’ hearing. The evidence of the applicant was heard ‘in private’. In my opinion the disclosure of the applicant’s identity to the other applicant cannot properly be said to have breached the requirements of s.429. No complaint was made at the hearing and there is an entire absence of any evidence to show if at all the privacy of the applicant’s application was violated other than in respect of the disclosure of his identity.”
Mr Smith submits that s.429 is no more than a requirement that the public be excluded from an RRT hearing and that the obligation cannot be considered in isolation from the obligations to observe confidentiality set out in ss.431 and 439 of the Migration Act.
I reject the first part of that submission. Selliah does not stand for the proposition that s.429 is simply a provision requiring hearings not to be in public. Nicholson J was concerned to satisfy himself that s.429 was not breached in the circumstances of the tandem hearing. He regarded it as significant that each applicant was given a private hearing in respect of their claims to a protection visa and the only relevant disclosure between applicants was that of identity. Having regard to the terms of s.429, the legislative context in which it appears, the explanation of the provision in the explanatory memorandum to the bill introducing the section and the terms of the decision of Nicholson J in Selliah I find that there are two relevant requirements in s.429. The first is that the public be excluded from RRT hearings. Obviously, some people need to be present. The presiding member must be there and the applicant. An interpreter may be required by an applicant. RRT staff may need to be in the hearing room from time to time. A sound recordist may need to be there. Witnesses may need to be in the hearing room from time to time. However, in order to comply with s.429 the RRT must ensure that persons having no business in relation to an application are excluded. This would ordinarily include persons making separate applications and persons, such as interpreters and witnesses, attending for the purposes of such a separate application. To my mind, this means that s.429 also requires that applications ordinarily be heard separately. That is the second and related requirement of s.429. Applicants are entitled to expect that they be able to present their claims to the RRT in confidence. That confidence would be imperilled if applicants were required to present their claims in the presence of other unrelated applicants.
There will be circumstances in which a presiding member may consider that applications be heard at the same time. Such a circumstance may be where separate applications are made by members of a single family unit and the claims made in the applications depend in whole or part upon one another. In those circumstances it may be desirable, even necessary, for there to be a single or “tandem” hearing. Nevertheless, the affected applicants should be given the opportunity to request a hearing of the whole or part of their application separately from the other applicant(s). Section 429 may also give rise to a legitimate expectation of a private hearing that must not be summarily disappointed. To do so would be procedurally unfair as well as breaching the section.
In this case, although the applicants made separate protection visa applications, on which separate decisions were made by a delegate and separate applications for review were filed, and although the applicants were invited separately to a hearing at different times on 3 December 2002, the day before the hearing, the applicant husband was informed by telephone that there would be a single hearing. After the hearing commenced and the husband’s interpreter, the applicant husband, the applicant wife and their common witness was sworn, the presiding member said:
“The way I would like you to proceed is to have you together at the beginning just to explain to you the process that we will follow today in the hearing and then I would ask the witness to leave the room and also the wife to leave the room and then I will interview the applicant and then I will ask you to come into the room, I will ask you a question and then I will ask the witness to also come in and give evidence. If we proceed in that way, is that agreeable to you?”
The interpreter responded:
“Yes, no problems.”
The interpreter was interpreting what the applicant’s husband said. When I listened to the sound recording it was apparent that the husband had indicated that he had no problems with this approach. The applicant wife did not require an interpreter and made a noise on the sound recording that seemed to indicate agreement. Nevertheless, it is not clear from what the presiding member said what she intended would happen in respect of the hearing of the applicant wife’s application. It was clear that she intended that the applicant husband would present his evidence in private but she appeared to treat the applicant wife as an auxiliary to the applicant husband’s application, and not as an applicant in her own right.
What actually happened was that after the applicant husband had been heard, the applicant wife was brought into the hearing room and there was a delay while the applicant husband and his interpreter went to the toilet. The presiding member waited until they returned and were present in the hearing room before she commenced to hear the applicant wife. The applicant wife was not given the same opportunity to present her evidence “in private”, as was the applicant husband. Although the transcript is by no means clear, the applicant wife did, on page 28 of the transcript, express concern with this approach. Having heard the sound recording as well as read the transcript, I find that the applicant wife said this:
“But he [it is not clear who ‘he’ is] didn’t believe. He didn’t believe me in the sense that he didn’t said, yes, we have listened to all these stories, you know, previously. You are not the first person to come and say your husband has gone and you know all these things and so there are things happen but it is only me and the person who knows but nobody knows up until now because one thing is I am very uncomfortable talking about it, especially with my husband, and it’s what I think it is somehow I am safe and it is even pointless I am talking to my husband about it. It’s happened and I am somehow I am all right.” (emphasis added)
The applicant wife now claims there are aspects of her case that she felt she could not reveal to the presiding member in the presence of her husband. I have no evidence of what those aspects are. They were never put to the RRT. What is clear is that the applicant expressed some discomfort about discussing an aspect of her case with her husband and I accept that she was uncomfortable with her husband present in the hearing room.
The presiding member acted correctly in asking the applicants whether they agreed to a tandem hearing. However, she did not express herself clearly in describing the procedure that would be followed. It was clear when she described the procedure that the applicant husband would be given the opportunity to present his evidence in private. However, it was not clear whether the applicant wife was to be given the same opportunity. As matters turned out, the applicant wife was not given the same opportunity. The presiding member went to the extent of waiting until the applicant husband and his interpreter were present in the hearing room before permitting the applicant wife to present her evidence.
In my view, there was no breach of s.429 in respect of the applicant husband. He was informed orally the day before the hearing that there would be a single hearing and could have objected then. He expressly consented to the procedure outlined by the presiding member at the start of the hearing. He was given a private hearing when he presented his evidence. His case was effectively complete by the time the applicant wife was brought in. However, s.429 was breached in respect of the applicant wife. She was not told directly, prior to the hearing, that there would be a single hearing. Her husband was informed and the RRT relied upon him to tell her, even though she was a separate applicant. She had previously been invited in writing to a separate hearing. The applicant wife did not clearly assent to the procedure outlined by the presiding member. She made a noise which sounded like assent but it does not appear on the written transcript. If she did consent it would have been reasonable for the applicant wife to expect that she would be treated in the same way as the applicant husband. She was not. She was given no opportunity to present her evidence in private. She expressed some discomfort in presenting her evidence but the presiding member did not alter the procedure she had adopted. I find that the applicant wife was denied a private hearing in breach of s.429.
In addition, the procedure followed by the presiding member was procedurally unfair because the applicant wife had been led to believe by the RRT prior to the hearing that she would be heard separately, consistently with the requirements of s.429. Her legitimate expectation of a private hearing was summarily disappointed.
The next question is whether the established breach of s.429 constitutes jurisdictional error. I accept Mr Smith’s submission that it cannot be assumed that all legislative requirements upon the RRT are essential to the validity of an RRT decision. Some procedural or other requirements may be construed as not essential: S157/2002 v Commonwealth. The legislative requirements on the RRT must be construed in the light of s.474. In Applicant NAHV of 2002 v Minister for Immigration [2003] FCAFC 102 at [23] the Full Federal Court stated:
Thus, the relevant enquiry here is whether Parliament intended that breach of the condition as to the manner of delivery of the relevant substantive information should necessarily spell the invalidity of the Tribunal's decision, even in circumstances where there has been satisfaction of the important substantive requirement of subs 424A(1) to give the appellant the information there contemplated, and implicitly an opportunity to deal with it. The "mandatory" language (the word "must" is used in subs 424A(2)) is relevant to, but not decisive of, this enquiry. In our view, it cannot be concluded that invalidity of the Tribunal's decision is the necessary consequence of any failure to comply with subs 424A(2), irrespective of the absence of any unfairness, whether of a substantive or procedural kind. Thus, we do not think that the failure to convey the relevant information by the correct method or vehicle can be seen as jurisdictional. This is so, it seems to us, even without considering the application of s.474 of the Act. (Quite different considerations might attend the analysis had there been a breach of subs 424A(1).)
Section 429 is a quite different provision to s.424A(2). It is more than merely procedural. It is a provision underpinning the integrity of the protection visa assessment regime. If applicants are not heard in private they cannot, in confidence, go to an RRT hearing. The statutory obligation on the RRT to hear applicants in private is a fundamental provision protecting the safety of applicants and their families. The observance of s.429 is an essential pre-requisite to the exercise of power by the RRT. The fact that the obligation is expressed in mandatory terms is relevant but the more important consideration is the purpose which the section serves.
I find that the breach by the RRT of s.429 in relation to the hearing of the applicant wife’s application was a jurisdictional error which invalidates the decision in relation to the applicant, notwithstanding the privative clause in s.474 of the Migration Act. In addition, I have found procedural unfairness, which is a jurisdictional error.
The claim of unreasonableness
I reject this ground of the application. The only argument advanced is that the decision of the RRT was unreasonable in rejecting the applicant husband’s claim that he was detained for six weeks prior to his trip to Australia. In my view, the attack on the presiding member’s reasons for rejecting this aspect of the applicant husband’s claims is no more than an attack on the merits of the decision. Whether one characterises this ground as Wednesbury unreasonableness or a failure of the fact finding exercise necessary to reach a degree of satisfaction for purposes of s.65 of the Migration Act, the ground is not established. There is nothing perverse, irrational or illogical about the reasons of the RRT. The decision is not so unreasonable that no reasonable tribunal could have made it. The relevant claims of the wife put before the RRT depended upon those of her husband. Neither applicant can satisfy the test established by the Full Federal Court in NAAH v Minister for Immigration [2002] FCAFC 354 at [27].
Failure to allow an opportunity to put a case
The third ground is only advanced on behalf of the applicant wife and relies upon the same arguments as the asserted breach of s.429. However, I reject this ground. The applicant wife was given an opportunity to put her case. The objection to the procedure followed by the RRT is that she was not given an opportunity to put her case in private. This was a breach of s.429 but there was no breach of s.414 of the Migration Act. The applicant wife was heard. The RRT gave little consideration to the claims of the applicant wife in its reasons for decision but that was because the applicant wife said little. The claims she advanced were primarily dependent upon the claims of her husband. She may have been able to say more if she had been given a private hearing. Under cross-examination the applicant wife stated that she felt she could not set out all of her claims in writing because she did not want her husband to see them. She did not tell me what those claims might be. The RRT did hear the limited claims which the applicant wife in fact made and there was no failure to give the applicant wife the opportunity to put her case.
The exercise of discretion
I reject Mr Smith’s submission that I should withhold relief in the exercise of discretion. There is nothing in the conduct of the proceedings by the second applicant that disentitles her to prerogative relief. She has not been tardy in bringing proceedings and the proceedings were conducted properly. Further, a rehearing of her application before the RRT would not necessarily be futile. She claims that she has further material to put before the RRT that she could not reveal in the presence of her husband. I do not know what it is but there is at least the possibility that the application wife has some further evidence to present that could affect the outcome of her visa application.
Costs
The outcome of these proceedings is that the applicant wife has been successful but the applicant husband has been unsuccessful. In these circumstances, Mr Smith submits that there should be no order as to costs and Mr Jones submits that the Court should order that the Minister pay a proportion of the applicant’s costs. I accept Mr Smith’s submissions. The Minister should receive his costs in respect of the applicant husband’s application. The applicant wife should receive her costs in respect of her application. There is no reason to believe that the applicant wife’s costs are larger than the costs of the Minister in respect of the applicant husband’s application. If anything, it is likely that the Minister’s costs exceed those of the applicants combined, bearing in mind the preparation work required of the Minister. I will order that there be no order as to costs.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 3 October 2003
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