SZARJ v Minister for Immigration - [2004] FMCA 557

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZARJ v MINISTER FOR IMMIGRATION

[2004] FMCA 557

MIGRATION – Review of RRT decision – where applicant’s first hearing before Tribunal was in November 2000, a further hearing took place in March 2001 – where Tribunal did not contact applicant until January 2003 – where Tribunal wrote to applicant advising that the presiding member would finalise her case shortly and gave date for final submissions or evidence – where Tribunal member who ultimately made the decision as to the applicant’s eligibility for a protection visa was not the member before whom the hearing was held – where applicant deposed that had she been made aware of this she would have requested the Tribunal exercise its discretion and grant a further hearing – where second member appointed under limited delegated power – whether the delegation of power was intended to extend beyond the Melbourne registry – whether member had the powers to constitute the case to another member – whether the letter misled the applicant into believing her case would be determined by the member before whom she appeared – whether this resulted in procedural unfairness.

Migration Act 1958 (Cth), ss.421, 422, 474
Interpretation Act 1984 (WA), s.18
Acts Interpretation Act 1901 (Cth), ss.13(3), 15AA

Optus Vision Pty Ltd v Australian Rugby Football League [2004] NSWSC 61
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
IW v City of Perth (1997) 191 CLR 1
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Liu v Minister for Immigration [2001] FCA 49
NADG of 2002 v Minister for Immigration [2002] FCA 893
Gleeson v New South Wales Harness Racing Authority [1990] 21 ALD 515
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601
Re RRT;Ex parte Aala (2000) 204 CLR 82
NABC v MIMIA [2003] FCAFC 317

Applicant:

SZARJ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 950 of 2003

Delivered on:

10 September 2004

Delivered at:

Sydney

Hearing date:

12 August 2004

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr D Jordan

Solicitors for the Applicant:

Kessels Goddard & Ajuria

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Court declares that the decision of the Refugee Review Tribunal constituted by Roslyn Smidt and made on 17 April 2003 is void and of no effect.
The Court orders that:
(i)The matter be remitted to the Tribunal to be heard and determined according to law.
(ii)The Respondent pay the applicant’s costs assessed in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 950 of 2003

SZARJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a Burmese citizen who arrived in Australia on 14 April 1999. On 5 May 1999 she lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 17 September 1999 a delegate of the Minister refused the application and on 12 October 1999 she applied for review of that decision. On 7 September 2000 the Tribunal wrote to the applicant advising her that it had looked at the material relating to her application but was not prepared to make a favourable decision on that information alone. The Tribunal invited the application to attend a hearing scheduled for 19 October 2000. That hearing was abandoned by the Tribunal and a new hearing date of 23 November 2000 was set. The hearing proceeded before the designated member of the Tribunal, Ms Moha Melhem and continued from 9.00a.m. until 2.52p.m. On 7 February 2001 a further hearing application was sent to the applicant which the applicant accepted and the second hearing took place before Ms Melhem on 14 March 2001. The applicant gave evidence herself and called witnesses at the two hearings.
The applicant heard no more from the Tribunal after the second hearing until she received a letter [CB 66] from the Tribunal dated 16 January 2003. The letter is in the following form:
“Dear applicant
Your Application for Review
The presiding Member has asked me to apologise for the lengthy delay in making a decision on your case. She intends to finalise your case shortly. If you wish to provide any further submissions or evidence, please ensure that they reach the Tribunal no later than 17 February 2003.
Yours sincerely
for Deputy Registrar

Sydney Registry”
The applicant in an affidavit filed in court deposes to the fact that when she read this letter she believed that the Tribunal which would be making the decision in her case and which had requested further information was the Tribunal constituted by Ms Melhem. She responded to the letter on 7 February 2003 in her own letter to which was attached a letter from her brother, one of the witnesses at the Tribunal, a petition and a letter from a person described as “Chief Editor of the Human Village” [CB 67 – 75]. On 14 February 2003 a copy of a Burmese newspaper dated 27 December 2002 was sent. On 23 April 2003 the applicant received information that a decision had been made in her matter and would be handed down on 8 May 2003. When the applicant received a copy of the decision and reasons for decision she saw immediately that the Tribunal member was not Ms Melhem but Ms Rosalyn Smidt.
The applicant proceeds in this court on the basis of an Amended Application under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) grounds of which are as follows:
1) “The Tribunal’s decision was made without jurisdiction because the Member of the Tribunal had not been lawfully reconstituted as the Tribunal at the time of the decision. A decision to reconstitute the Tribunal is not a privative clause decision [s474(4)] and so the privative clause in s474(1) of the Migration Act 1958 does not apply.
2) The Tribunal’s decision involved a denial of procedural fairness when it failed to advise the applicant that the matter had been reconstituted to a new member. In failing to record procedural fairness the Tribunal committed jurisdictional error. Therefore, the privative clause in s474(1) of the Migration Act 1958 does not apply.”
The applicant was represented by Mr Jordan and moved the court on the Amended Application together with an affidavit of Ronald Antony Kessels of 6 August 2004 and an affidavit of the applicant dated 5 August 2004. Mr Kessels’ affidavit exhibited a number of important documents and the transcript of the hearing. The applicant’s affidavit stated inter alia:
“4. I was very surprised when I did not hear from the Tribunal for almost two years after the hearing, but I had been told to wait for their decision so I waited expecting to receive a decision. In January 2003, I received a letter from the Tribunal apologising for the delay and asking for further submissions or evidence. A copy of that letter is annexed hereto and marked with the letter “A”. The letter began by saying that the Presiding Member had apologised for the delay in deciding the case but that she intended to finalise it shortly. I believed that that letter was referring to the same Member who had conducted my hearings. I had no idea that a different Member had been appointed to finalise my case, or that she might do so without ever meeting me.
5. In response to the Tribunal’s letter annexed and marked “A”, I sent in further information under the assumption that it would be considered by the same Member with whom I had the hearings.
6. I only discovered that a different Member had made a decision in my case after I received the decision from the Refugee Review Tribunal dated 17 April 2003. Had I known that a new Member had been appointed to finalise my case, I would have also written to that Member and told her that I very much wanted to have another hearing with her so that I could explain my case to her in person. I feel that it was very important for me to meet the person deciding my case so that she could see how genuine I was about my fear of returning to Burma. I was very disappointed to discover that the Member who was appointed to finalise my case decided that she did not believe me about my claims even though she had never even met me, and that she had reached this opinion about me by listening to the tapes.”
The documents annexed to Mr Kessels’ affidavit reveal that on 28 July 1997 the then principal member of the Refugee Review Tribunal made a delegation to Ms Kerry Boland in the form set out below:

“REFUGEE REVEW TRIBUNAL
INSTRUMENT OF DELEGATION
Pursuant to s.470 of the Migration Act 1958 (the Act), I shun Chetty, Principal Member of the Refugee Review Tribunal, delegate to
KERRY BOLAND, a Member of the Tribunal,
so many and so much of my powers under the Act as are necessary to enable her to monitor and promote the quality of Tribunal decisions and individual Member decision making productivity. In particular she is empowered to
(i)constitute cases to Melbourne Members;
(ii)work with the Registrar (and staff nominated by the Registrar) on the management of the Tribunal’s caseload;
(iii)review the various work practices of Members and staff with a view to drafting guidelines for effective disposal of caseloads;
(iv)be available to advise Members seeking assistance with their decisions; and
(v)where necessary, counsel and assist Members whose productivity has fallen below required levels.

This delegation shall remain in force until revoked by me or by some person acting in my capacity.
Shun N Chatty
Principal Member
28 July 1997”

On 29 April 2002 Steve Arthur Karis, Principal Member of the Migration Review Tribunal and the Refugee Review Tribunal, appointed Ms Boland as acting Deputy Principal Member of the Refugee Review Tribunal in a form of appointment document set out below:
“Commonwealth of Australia
Migration Act 1958
INSTRUMENT OF APPOINTMENT FOR ACTING DEPUTY PRINCIPAL MEMBER – REFUGEE REVIEW TRIBUNAL
I, STEVE ARTHUR KARAS, Principal Member of the Migration Review Tribunal and the Refugee Review Tribunal, acting under subsection 469(1) of the Migration Act 1958, appointed KERRY BOLAND to act as Deputy Principal Member of the Refugee Review Tribunal from 1 May 2002 to 31 July 2002 (inclusive).
Date 29 April 2002
Principal Member of the Migration Review Tribunal and the Refugee Review Tribunal”
On 3 May 2002 Ms Boland as Acting Deputy Principal Member constituted the applicant’s case to member Rosalyn Smidt.
Division 3 of the Migration Act deals with the exercise of Refugee Review Tribunal’s powers. Section 421 is in the following form:
“Constitution of Refugee Review Tribunal for exercise of powers
(1) For the purpose of a particular review, the Tribunal is to be constituted, in accordance with a direction under subsection (2), by a single member.
(2) The Principal Member may give a written direction about who is to constitute the Tribunal for the purpose of a particular review.”
Section 422 deals with a case of unavailability of members and is in the following form:
“Reconstitution of Refugee Review Tribunal—unavailability of member

(1) If the member who constitutes the Tribunal for the purposes of a particular review:
(a) stops being a member; or
(b) for any reason, is not available for the purpose of the review at the place where the review is being conducted;
the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.
(2) If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.
(3) In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 420(1).”
There is no dispute between the parties that Ms Boland had been properly delegated the powers contained in the instrument of delegation set out above. The applicant argues that this instrument of delegation does not empower Ms Boland to reconstitute Tribunals of members in Sydney which is what occurred in this case. When construing a document created pursuant to the provisions of a statute it must be interpreted having regard first to the plain meaning of the words. I draw on the comments of Santow JA (with whom Meagher JA and Stein AJA agreed) in Optus Vision Pty Ltd v Australian Rugby Football League [2004] NSWSC 61 who in relation to the interpretation of legal documents said at [24]:
“[It is axiomatic that] the starting point when considering a point of interpretation must be the text itself. As Lord Steyn observes the mandated point of departure must be the text itself. The primacy of the text is the first rule of legal interpretation for the judge considering a point of interpretation.”
His Honour went on to discuss circumstances where regard should be had to extrinsic evidence and notes that Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352-3 emphasises that where the plain meaning of a document is apparent it cannot be contradicted. Similarly, in IW v City of Perth (1997) 191 CLR 1 Brennan CJ and McHugh J after discussing s.18 Interpretation Act 1984 (WA), similar in its terms to s.15AA Acts Interpretation Act 1901, which gives preference to an construction that will promote the underlying purpose and object of the stated law noted at 12:
“Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural.”
In this regard I note the following. Firstly, the delegation is given to Ms Boland as a member of the Tribunal and that it had been given to her some five years before her appointment as Acting Deputy Principal Member. This was itself a limited appointment between 1 May 2002 and 31 July 2002. Second, the powers given to Ms Boland under instrument of delegation were limited. It was accepted by the Minister that the words utilised are not words which come out of the Migration Act referable to the duties of the Tribunal. The words appear to be directed at improving the quality of individual decisions by Tribunal members in Melbourne. That seems to me to be the purport of the general words and those general words are reinforced by the particular powers set out at [i] to [v]. Third, it is clear that when a statute confers both a general power, not subject to limitations and qualifications and a special power subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at [678].
The argument put forward by the applicant that the power to constitute cases given to Ms Boland was not a power to reconstitute cases because these matters were dealt with in two separate sections of the Act, one of which was headed “Reconstitution of Refugee Review Tribunal” does not seem to me to be tenable. I say this despite the fact there is a sub-s.3 to s.422 which there is not in s.421 and despite the heading. Section 13(3) Acts Interpretation Act 1901 states that the heading has to be disregarded in construing the statute:
s.13(3) No marginal note, footnote or endnote to an Act, and no heading to a section of an Act, shall be taken to be part of the Act
Sub-section 422(1) does not use the word “reconstitute” but the word “constitute”. If one gives a purposive construction to the instrument of delegation it is clear that in order to promote individual decision making productivity the delegatee may have to constitute cases to Tribunal members that have previously been in the hands of other Tribunal members who are no longer able to continue for the reasons set out in s.422(1)(a) and (b).
Having made that concession to the Minister I am unable to go further. I am satisfied from what appears on the face of the instrument of delegation that the delegator had very limited intentions. In particular the intentions were limited to the Melbourne registry of the Tribunal. There is nothing to indicate that the delegatee had any powers in relation to the Sydney registry or would have been expected to give instructions constituting cases to members in Sydney. This is particularly the case in relation to a matter that was originally constituted to a Sydney member, was heard in Sydney and was purportedly reconstituted to another Sydney member. The specific power to constitute cases to Melbourne members would be redundant if Ms Boland had power to constitute cases to any member in any registry.
It seems to me that what has occurred in this case is that Ms Boland’s career at the Refugee Review Tribunal has flourished since the original delegation in 1997 but her powers have not been adjusted to meet her new status. I am not satisfied that Ms Boland did have the necessary powers to constitute this case to Tribunal member Smidt during the period in which she was Acting Principal Member. It is accepted by the Minister that the powers found in Division 3 of the Act come from the Act and not from the position. In other words, by acting in the position of Deputy Principal Member Ms Boland did not obtain any greater powers than those previously given to her under the instrument of delegation.
This finding resolves the case. If there was no proper delegation then there was no valid decision. The decisions is one which falls within the exclusions to the privative clause found in s.474(4) Item 26. As the decision maker lacked the jurisdiction to make the decision the applicant is entitled to prerogative relief in relation to it and I am entitled to find that it is void and of no effect.
The second ground upon which the applicant seeks review of the decision of the Tribunal is that it involved a denial of procedural fairness when it failed to advise the applicant that the matter had been reconstituted to a new member. The letter from the Tribunal does not make any reference to a new member constituting the Tribunal. It refers to the member in the feminine and I have little doubt that objectively an applicant receiving such a letter could reasonably assume that the person being referred to was the original person who heard the applicant at the interview. The applicant in her evidence states that if she had known another person was going to make a decision she would have sought an opportunity to be heard. It is the failure to provide her with that opportunity that is impugned by the applicant.
The applicant’s case is very similar to that considered by both Wilcox J and the Full Bench in Liu v Minister for Immigration [2001] FCA 49 and 2001 113 FCR 541. In that case the Tribunal which interviewed Mr Liu was constituted by a Ms Akmeemana. She resigned and in her place the Tribunal was constituted by Mr Keher. Before making his decision Mr Keher listened to a tape recording of the hearing and read the transcript in the proceedings before Ms Akmeemana. Mr Liu was not invited to appear before Mr Keher to give evidence or make submissions, indeed Mr Liu was not told that Mr Keher had taken over the case. The case of Ahmed was heard at the same time as Liu, the only difference in the factual substratum was that Mr Ahmed was contacted by the Tribunal who informed him that the member previously dealing with the review had left the Tribunal and that a new member was now handling it. An opportunity to provide further information was given to him. This was similar to what occurred in the instant case. The essential difference being that whilst both applicants were given an opportunity to make representations Mr Ahmed could not say that he did not know that another member was going to finish off the hearing whereas the applicant before me could.

Ahmed and Liu are Full Court authority for the proposition that there is no obligation to invite an applicant to a further hearing when a new member reconstitutes the Tribunal. The applicant here argues that the decision in those cases, which was followed by Branson J in NADG of 2002 v Minister for Immigration [2002] FCA 893 were made pursuant to the now repealed s.476(1)(a) of the Migration Act in circumstances where review arising from a denial of procedural fairness was expressly excluded by the now repealed s.476(2)(a). It is argued that on this basis these authorities do not apply in the present case. So far as the decision in NADG is concerned it is argued that this decision was handed down prior to S157/2002 and may well have been different had Her Honour decided the case subsequent to that decision. There is a further point of distinction between NADG and the present case. That is that in NADG it could not be said that the applicant was denied procedural fairness by not being given an opportunity to request a further hearing because she did not know that the constitution of the Tribunal had changed. NADG was a case where the new member constituting the Tribunal had written to the applicant advising him that the matter had been reallocated, that the hearing tapes had been transcribed and had been read by him. As Her Honour says at [21]:
“There would seem to be little reason to doubt that the applicant learnt from the letter of the Tribunal dated 12 October 2000 that the Tribunal had been reconstituted.”
Her Honour notes that the applicant did respond to the invitation issued by the reconstituted Tribunal and thereafter at [23]:
“The submission that the applicant was denied procedural fairness by the Tribunal is untenable.”
I am satisfied that Her Honour’s views as to procedural fairness were made in the context of the applicant being advised of the change in the constitution of the Tribunal and did not relate in any way to the decision in Liu. That was not a decision on a procedural fairness question. I do not believe that NADG is persuasive authority which out of respect to the rules of comity I would be bound to follow. It does not deal with the same factual situation. If the factual situation was the same then I would make the same decision as Her Honour did because it is clearly correct.
In the instant case, whilst the applicant was provided with an opportunity to make representations, she was not effectively provided with an opportunity to make representations about a further hearing. This is because I have found that it would have been reasonable for her to assume that the membership of the Tribunal had not changed. I note that in Liu at first instance Wilcox J says at [16]:
“[16] I agree with Mr Diab about the desirability of the oral hearing being conducted by the member who makes the Tribunal’s ultimate decision. This is particularly important where there are issues of credibility, but it is desirable in other cases as well. The oral hearing provides to the Tribunal an opportunity to raise matters that seem to stand in the way of acceptance of an applicant’s case. Sometimes there is a simple explanation for an apparent difficultly in a party’s case or a witness’ evidence; once the problem is aired, the explanation is given and the difficulty disappears. It is obviously desirable that the person who has to make the decision be the person who had the opportunity to raise any perceived difficulties. Another person might not have seen any difficulty.
[17] There would seem to have been nothing to have precluded Mr Keher inviting Mr Liu to attend for an interview. … If that had been done, Mr Liu would at least have had the consolation of knowing his case had been fully explained to, and considered by, the person who determined his application.”
It was accepted by the respondent that this case was not covered by the provisions of s.422B of the Act so that the decision is one in respect of which the applicant is entitled to the full protection of the rules of natural justice and procedural fairness. The provisions of the Act setting out the procedures to be adopted by the Tribunal do not constitute a code so far as this case is concerned. In any event, the applicant before me is not going so far as to argue that she was entitled to the desirable procedures outlined by Wilcox J in Liu and articulated in Gleeson v New South Wales Harness Racing Authority [1990] 21 ALD 515 at [520]. But only that because she was misled by the letter from the Tribunal she was unable to avail herself of an opportunity to request this desirable outcome.
When looked at in this way it can be seen that the case has many similarities with those of Muin and Lie. Despite attempts by applicants to use the Muin and Lie decision to impute an obligation upon the Tribunal to demonstrate actual possession or consideration of Part B documents, the success of the applicants rested on the accepted fact that they would have conducted their cases before the Tribunal differently had they not been misled by the Tribunal in relation to the provision of Part B documents and had they been informed of new adverse material which had come before the Tribunal. In Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601Hayne J stated at [256] – [257]:
“The consequence of what has been agreed by the parties to each of the present actions is that each plaintiff was led to believe, by what the tribunal said, that it had material relevant to that plaintiff’s claim which it did not.
The agreed facts are silent about whether the Tribunal was aware of the information and opinions contained in the Part B documents. It may have been, but more importantly, it may not. It follows therefore, that in each case, the plaintiff was denied procedural fairness. Neither plaintiff was given an opportunity to place before the Tribunal the material and submissions, which, on the agreed facts, it is accepted that he or she would have submitted if not mistaken about what was before the Tribunal. Moreover, it also follows from the parties’ agreement that each plaintiff would have made further submissions and sought to adduce further evidence that the Tribunal did not comply with the statutory provisions governing its conduct of the reviews of the plaintiffs’ cases. It did not give each plaintiff the opportunity to make the submissions or give the evidence which the plaintiff wished to make and give. For these reasons [there was a failure to accord procedural fairness to the plaintiff].”
Just as the statements by the Tribunal in Muin and Lie resulted in the plaintiffs believing that it was not necessary for them to independently draw the tribunal’s attention to favourable aspects of the Part B documents, the applicant in the instant case was similarly misled in a crucial way which influenced how she responded to the Tribunal’s letter of 16 January 2003. Although, as noted above at [17], an applicant is not entitled to a further hearing following reconstitution of a tribunal, nothing in the Act prevents one from taking place. The applicant stated in her affidavit set out above at [5] that had she known of the changed circumstances surrounding her case she would have requested that the Tribunal exercise its discretion and grant a further hearing before the new member. The applicant indicated the importance she placed on personally meeting with the tribunal member ultimately charged with the determining her refugee application. Such a belief is not misguided. Both Gleeson CJ and Kirby J in Re RRT; Ex parte Aala (2000) 204 CLR 82 have acknowledged that matters of credibility are essential to the determination process. Gleeson CJ noted at [4]:
“It is possible that, even if the prosecutor had been given an opportunity to deal with the point, the Tribunal’s ultimate conclusion would have been the same. But no one can be sure of that. Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.”
This was echoed by Kirby J when he said at [130]:
“Many, if not most cases of this kind turn on the assessment of the credibility of the applicant for refugee status.”
Whether there has been a breach of procedural fairness is to be decided having regard to the circumstances of the individual concerned. This was articulated by Allsop J in NABC v MIMIA [2003] FCAFC 317 where he said at [98]:
“The question as to whether procedural fairness has been afforded depends on the circumstances of each case. The significance of the relationship between the relevant belief and what would have been done, and the identity and nature of the relevant unfairness or practical injustice, are to be assessed in every case by reference to the individual circumstances. These are the “difficult and factual and evidentiary issues” referred to by Hayne J in Muin at [256].”
When regard is had to the present case I am satisfied that the applicant did not receive procedural fairness. I am also satisfied that if she had (by being clearly told of the change of member) she would have requested another hearing. Being deprived of that opportunity was to treat her unfairly. I would therefore set aside the decision on this ground as well.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 10 September 2004