SZDBN v Minister for Immigration
[2004] FMCA 1049
•7 December 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDBN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2004] FMCA 1049 |
| MIGRATION – RRT decision – applicant not given notice of information on high frequency of false documents in Bangladesh – common law breach of procedural fairness – decision quashed. |
Migration Act 1958 (Cth), ss.91R(1)(b), 91R(2), 422B, 424A, 474, 479, 483A
Kioa v West (1985) 159 CLR 550
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30
NAAA v Minister for Immigration & Multicultural Affairs (2002) 117 FCR 287
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624
| Applicants: | SZDBN, SZDBO, SZDBP, SZDBQ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG814 of 2004 |
| Judgment of: | Smith FM |
| Hearing date: | 7 December 2004 |
| Final orders made: | 20 December 2004 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2004 |
REPRESENTATION
| Counsel for the Applicants: | Mr J Smith |
| Counsel for the First Respondent: | Ms K Morgan |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
Order for a writ of certiorari directed to the second respondent quashing the decision of the second respondent in the matter NO1/38807 dated 9 March 2004.
Order for a writ of mandamus directed to the second respondent requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 3 May 2001.
The first respondent pay the applicants’ costs set in the amount of $3,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG814 of 2004
| SZDBN, SZDBO, SZDBP, SZDBQ |
Applicants
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) (“the Act”) challenging a decision of the Refugee Review Tribunal (“the Tribunal”) which it is agreed was handed down on 9 March 2004. The Tribunal affirmed a decision refusing an application for protection visas for the applicants, who are husband and wife and their two children.
The applicant filed the application in person and the application shows no sign of legal input. However, the applicant has appeared today represented by counsel instructed on a direct client basis. Counsel has obtained leave for the applicants to file an amended application for an order of review, raising two grounds.
At the start of today’s proceedings counsel also sought to raise a further ground which did not appear in the foreshadowed amended application. This alleged that the Tribunal had acted under a misconception as to what had been said in the course of a hearing. Such a ground had not been foreshadowed to the respondent, and gave rise to a dispute about the admission of evidence concerning a tape and transcript of what had happened. Ultimately, the application to raise this ground was withdrawn by the applicant. Counsel said that his instructions to withdraw the ground arose from a serious medical concern threatening one of the applicants, which required that the hearing of today’s case should not be adjourned and that I should deliver a judgment today. I have accepted what was put to me, and the Court has sat beyond the usual Court hours to accommodate the applicants.
The application for a protection visa was made on behalf of the head of the household, his wife and two children, but I shall refer to the head of the household as the applicant. His claims to receive refugee protection were summarised by the Tribunal as follows (CB 176):
In summary, he claims that he came from a politically prominent family and became active in student politics with the Bangladeshi National Party in 1978 at university, from which he graduated at the end of 1979. He criticised party leaders who were given positions when the BNP came into government and as a result was targeted by local BNP gangsters; also by enemies in the Awami League. He became fearful and his mother advised him to leave the country which he did in January 1981. He went to Kuwait and later Dubai working for an international hotel chain. He returned to Bangladesh in 1986 to marry but concealed his presence by living away from home. He returned to Bangladesh during the Gulf War, from September 1990 to June 1991. He was asked by his mother to join her party (the Jatiya Party) and did so becoming the organising secretary of the Sutrapur unit and an executive member of the city unit. He became a prime target of the BNP and the Awami League and on 27 February 1991, was fired upon while leading a motorcycle group. He went into hiding for about 14 days, then became active again in efforts to free a detained party leader. He was attacked by BNP activists who beat him severely. He was hospitalised for four days. Soon afterwards, in March 1991, his wife was assaulted in a rickshaw by Awami League gangsters. She was severely burnt. He took his wife and children back to Kuwait in October 1992. Later he visited his mother and in-laws in Bangladesh on at least two occasions, including in 1999 in transit to Vanuatu with his hotel employers. He avoided trouble in Bangladesh by not staying in his home district. He claimed that, in 1999, when he returned to Bangladesh, his opponents learnt of his presence and his mother started to receive threatening phone calls, at which time he contacted the hotel firm who employed him. A position in Vanuatu was offered, which he accepted with a view to going to Australia. He believed that, because of his family’s political prominence, he would always be regarded as a threat to his political enemies in the BNP and the Awami League, because if he went for election, he would succeed. His adviser included a claim of false charges laid by the BNP outstanding against the applicant, as did his supplementary submission dated October 2003.
On the basis of those claims, the Tribunal has considered the application against the Convention ground of political opinion.
I think this is a fair summary of claims made in a written statement attached to the original application, in a further statement that was submitted to the Tribunal at the hearing, in oral statements to the Tribunal (assuming that the Tribunal’s account of the hearing set out in its reasons is accurate), and in a submission and documents that were submitted subsequent to the hearing.
I should, however, also note that in his first documents the applicant said (CB 38):
8.I do not want to return to Bangladesh, as there is no security of life. Many cases against me were filed by my political opponents. My wife was also brutally oppressed by them. If I am forced to return home I will be killed by my political opponents, as there is a high chance during political upheavals.
This aspect was also briefly referred to in a lengthy statement submitted by the applicant’s migration agent to the Tribunal (CB 91):
Because of [the applicant’s] false case, police still searching him to arrest. His family is scared too much that if he goes back then he would be arrested and he would not get a bail or the Chattra Dal supporters would kill him to take revenge. They are still serious about his whereabouts. Police force in Bangladesh is bias and actively took part in many extra-judicial killings.
The submission made reference to a passage in a 2001 US State Report referring to the use of powers to arrest and detain persons arbitrarily to harass political opponents, and also “the government filed numerous criminal cases against opposition leaders and activists; at least some times, these charges were false”.
The question of the false case against the applicant does not seem to have been addressed at all in the course of the hearing which occurred on 13 March 2003.
However, according to the Tribunal, at the end of the hearing it drew attention to the absence of corroboration (CB 165):
The Tribunal commented that the extent of his political activity was relatively small. That was for a couple of years as a university student, ending with his graduation in about 1980 and a second period during his nine months return in 1990/1991. There had been nothing in the ten years since. The offices he held were at a low level. There was no evidence of those offices, activities, or of the incidents, injuries and charges against him he claimed, other than his own unsupported assertions.
After the hearing there was a lengthy delay before the Tribunal gave its decision, in circumstances that are not explained in the material before me. Nearly one year elapsed before the Tribunal gave its decision. During that period, on 16 October 2003, the Tribunal received the applicant’s additional submission with further documents. The applicant described how these had been obtained (CB 95):
Sir, my Brother-In-Law in Bangladesh (my wife’s brother) had risked his life to collect the documents by going through our old belongings and contacting my Lawyer and Doctor with whom I had been in touch during my political involvement period. I do realize that it is not that of highly intensified documents but could be a drop in the ocean to justify my claim.
Within those documents was one from a person whose letterhead describes him as an advocate of the Supreme Court of Bangladesh, which said (CB 104):
This is to certify that [the applicant], son of late [applicant’s father], [applicant’s age], [applicant’s address] was an active leader of JATIYA PARTY of Bangladesh. After the fall of president Ershad (the chairperson of Jatiya Party) on December 1990, Bangladesh Nationalist Party (B.N.P), the ruling party of that time, putted case against [the applicant] according to Criminal act. 143, 448, 427, 385, 380, 323 and 506 P.Code. Not only that the cadres of B.N.P (ruling party) attacked him and beaten him severely. Simultaneously, the cadres of the opposition party Awami League, attacked his wife and little daughter and wounded them. At that time I was the Legal Adviser of him. [The applicant] went to local Police Station to submit a case, but police refused to take the case. So, his life became to the risky point at that time. I think, for that reason [applicant] gone out from Bangladesh. Still his cases are active and if he come back he may arrested.
Accompanying the submission, there was also a handwritten letter from a person whose letterhead identified him as a medical doctor, stating that the applicant attended on his chambers in 1991 for treatment of personal injuries which are described, two newspaper extracts and a further report from a doctor concerning the applicant’s wife. There was also a bulk of irrelevant material concerning the current employment and circumstances of the applicant and his children.
The Tribunal’s reasons set out at length and verbatim the applicant’s claims, and a lengthy history of politics in Bangladesh, as well as a summary of what the Tribunal said had happened at the hearing. At the end of a discussion under the heading, “Independent Information”, the Tribunal set out the following (CB 174):
Document Fraud
(From “Bangladesh Assessment”, October 2002, Country Information and Policy Unit, Home Office, United Kingdom)
The independent evidence indicates that there is a very high level of document fraud in Bangladesh, with fraudulent documents able to be obtained with the assistance of the police. It is also common to pay bribes to officials. In addition, lawyers will provide, for a fee, a letter advising that it is unsafe to return to Bangladesh.
Other independent evidence refers to the prevalence of Bangladeshi asylum seekers providing fraudulent documents. In its February 1998 report entitled, “Bangladesh: Profile of Asylum Claims and Country Conditions” (CX31417), the US Bureau of Democracy, Human Rights and Labor states:
Asylum applicants from all [political] parties submit voluminous documentation to support their claims, including in particular outstanding warrants for their arrest if they return to Bangladesh and other alleged court and police documents. Arrest warrants are not generally available to the public, and all such documents should be scrutinised carefully. Many “documented” claims of outstanding arrest warrants have proved to be fraudulent. As of December 1997, the Embassy had examined several hundred documents submitted by asylum applicants; none proved to be genuine … Altered or counterfeit newspaper articles are another less frequent but notable example of document fraud.
The Tribunal then set out seven pages of findings and reasons, in which it first refers to general legal propositions concerning the assessment of claims under the Convention, and then sets out the summary of the applicant’s claims that I have quoted above. I note that the last sentence refers to the applicant’s claim that there were outstanding false charges.
The Tribunal then starts its reasoning (CB 177):
Discussion
The Tribunal first considered the additional information provided in October 2003, to support his claims. The documents have been described earlier. From the independent information, which the Tribunal accepts, it is aware of the high frequency of false documents produced in Bangladesh to bolster refugee claims. That is not to say, however, that all such documents are false, but it does encourage caution before reliance.
The Tribunal’s findings on the documents provided are as follows:
a.The report from a Dr Sarker describing treatment administered on 24 March 1991 following an assault. The report is handwritten and dated (twice) as 24 March 1991. The paper and the ink used is new and the document is clearly not ten years old it purports to be. Because of this the Tribunal does not accept that the medical report is genuine.
b.The two newspaper articles in Bangla, with accompanying (but not certified English translations). One translation is dated 25 March 1991. The other is not dated.
(1)The first text (25 March 1991) says that the applicant (named), was ‘bitten by the opposition leaders’, that he was ‘now in hospital’ and that his family were also attacked at the same time. That account, which in suspicious detail for a small incident only the day before, is not consistent with the medical report or the applicant’s oral evidence. For these reasons, the Tribunal is not satisfied that that report is genuine.
(2)The second text describes a meeting between President Ershad and some students, including amongst whom is the applicant. The independent information, which the Tribunal accepts, reports that President Ershad came to power on 24 March 1982, by which time, according to his evidence, the applicant was working in Kuwait. The Tribunal accordingly finds that the document is false.
c.The letter dated 4 July 2003 from the staff reporter of the Daily Dinkle, supporting the applicant’s claims in 1990 and 1991 of his involvement with the Jatiya party. The letter includes the comment, ‘And I think he is still abroad’. That comment and the suspiciously close coincidence of the detail with the applicant’s claims about events 12 years ago destroys credibility. For that reason, the Tribunal is unable to place any reliance on that document.
d.The letter from an advocate dated 2 June 2003 describes that applicant as active in 1990 in the Jatiya party, assault against himself and later his wife and daughter, a refusal of the police to accept his complaint of those assaults, and false charges laid against him under the criminal code and says that those charges are still active against him, preventing his return to Bangladesh. The Tribunal noted that there was no other corroborative evidence of charges laid against the applicant by the BNP as claimed, which had only just come into power. Further, that the applicant provided no detail on those charges, nor did he include them in his oral evidence. For those reasons, the Tribunal has placed no weight on this document.
The Tribunal also was satisfied, from the facts of his repeated return journeys to and from Bangladesh without travel documents or local police difficulty, and the re-issue of his passport, that the claim of false charges outstanding, impeding his return after ten years and several changes of government, was also not credible.
In making that finding, the Tribunal was aware of the country information, which is to the effect that the judiciary in Bangladesh are independent and have a record of dismissing politically motivated (false) charges.
The Tribunal is thus left with the unsupported assertions of the applicant, or the unsatisfactorily corroboration provided, about his political involvement, the incidents in which he was threatened and the injuries he and his wife sustained.
After these findings which put out of consideration the corroborative material presented by the applicant, the Tribunal then assessed the individual parts of the applicant’s own evidence by starting with an assessment of his claimed student activities prior to taking up employment in Kuwait in January 1981. In respect of this part of the claims, the Tribunal concluded as follows (CB 179):
The Tribunal notes from the independent information which it accepts, the high unemployment rate then and now in Bangladesh. It does not find as credible his claim that he left Bangladesh solely because of his political stance as opposed to the career opportunity offered. Noting his then age, his party profile and the few months as a student he would have been a protester about appointments, the Tribunal does not accept, from the evidence it has, that he was ever targeted by senior BNP party figures. The Tribunal notes that, from his own evidence, the harm he claimed then consisted of telephone calls and abuse shouted at his home. The Tribunal finds that does not meet the level of serious harm described in the legislation.
In relation to the applicant’s “second series of claims” relating to his return to Bangladesh in September 1990 until June 1991, the Tribunal concluded as follows (CB 179):
The Tribunal does not find as credible the claim that someone who had been away from the country for ten years and had no recent political activity would be given (local) high office so quickly. Further that, with such a political novice background, he would have been targeted by both the BNP and the Awami League, at a time when those parties, fierce opponents in pursuit of government, had more important things to use their resources on.
The Tribunal then regarded the applicant’s adviser’s claim that the current BNP government “has engaged all its forces to find him out” as “in the Tribunal’s view, and without any supporting evidence, frankly, ludicrous”.
The Tribunal then deals with the claim that the applicant’s wife had been assaulted, and says (CB 179):
Again there is no independent evidence of that incident or that her assailants were political opponents of her husband, rather than criminals.
The Tribunal concludes (CB 180):
The Tribunal is required to make its decision in light of the situation in the circumstances at the time of the decision and in the reasonably foreseeable future. The Tribunal has found that the applicant’s claim of false charges is not credible, as evidenced by his trips to and from Bangladesh without difficulty and the issue and renewal of his Bangladeshi passport. His claim that to avoid trouble he did not stay in his home district is noted. That strategy would not, the Tribunal finds, protect him if there were outstanding charges against him since 1991. Since that time, there would have been ample opportunity when the Jatiya Party was in coalition for those charges (if existing) to be quashed. If there were such charges that had survived a number of changes of government, then the independent information on Bangladesh, which the Tribunal accepts, is to the effect that legal recourse is available to him through the Court system.
As to the applicant’s claim that he will always be at risk in Bangladesh because of the threat his family history offers to his BNP and Awami League opponents, the Tribunal does not find that claim credible. His now dead maternal uncle held high office in Pakistan before Bangladesh independence in 1971. His father was a political. His mother, now also dead, was a Jatiya Party worker, a teacher and later an office secretary in a women’s centre. That is not a family history, which the Tribunal finds would lead to her son suffering continuing disadvantage.
For the reasons given above, the Tribunal is satisfied that the applicant does not have a well-founded fear of persecution for reasons of political opinion, or for any other Convention reason, should he return to his country now or in the foreseeable future.
The grounds of appeal that were argued before me today were two, of which the first was:
The Tribunal denied the applicants procedural fairness.
Particulars
The Tribunal relied on material or information which was relevant, credible, and did not give the applicants any opportunity to comment on that information; namely
(a)there is a high frequency of false documents produced in Bangladesh to bolster refugee claims [CB 177.4]; and
(b)the judiciary in Bangladesh is independent and has a record of dismissing politically motivated (false) charges [CB 178.5].
Counsel for the applicant submitted, and it was conceded by counsel for the respondent, that an assessment of the procedural fairness of the Tribunal’s proceedings in relation to the foreign country information identified in the pleading was not governed by s.422B of the Act, so that it was not necessary for the applicant to show a breach of a procedural right given under one of the sections in Division 4 of the Act such as s.424A.
Counsel for the applicant did not attempt to bring what had happened under any of those sections. Instead he submitted, and it was not disputed, that if a breach of what is often referred to as “common law” procedural fairness could be established, then that would amount to a jurisdictional defect in the proceedings before the Tribunal which would allow the Court to give relief in the present proceedings, notwithstanding that otherwise the Tribunal’s decision would be a privative clause decision. (See Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 and subsequent cases).
As to the relevant principle of common law procedural fairness, counsel for the applicant referred me to Kioa v West (1985) 159 CLR 550 at 557, 559, 569, 570, 582 and 602‑603, and in particular Brennan J’s statement at 628 and 629:
A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v. Government of Malaya [1962] A.C. 322 at 337; Ridge v. Baldwin [1964] A.C. 40 at 113‑114 per Lord Morris; De Verteuil v. Knaggs [1918] A.C. 557 at 560, 561. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v. Environment Secretary [1981] A.C. 75 at 97:
“To ‘over-judicialise’ the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair.”
Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account.
Counsel for the applicant submitted that the principle as framed by Brennan J remained good authority and had been applied in relation to adverse foreign country information by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [26], [89], [125‑126], [140] and [147], and in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 at [30], [123] and [234]. He also cited a recent Full Court decision, Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264, where Merkel and Hely JJ adopted a statement of principle from another Full Court case where Brennan J’s statement in Kioa’s Case (supra) was applied by the Court. (See the discussion at [140‑144]).
I accept the applicant’s submission. On these authorities, the test which I must apply is whether there was information that had not been put to the applicant or that the applicant had not had an opportunity to deal with which was “adverse information that is credible, relevant and significant to the decision to be made”. Counsel for the respondent, as I understood her submissions, did not seek to persuade me that any different test should be applied by me in relation to the present situation.
Counsel for the Minister argued, however, that in the present case, document fraud in Bangladesh was not the basis on which the Tribunal rejected the documents. In this respect, Counsel submitted that the Tribunal’s discussion of the documents to which it gave no weight identified inherent flaws in those documents, and did not rely on the adverse country information. It was submitted that this approach was open to it and would not have given rise to an obligation on the Tribunal to put those concerns back to the applicant in accordance with the principles established in the cases recently discussed by French J in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 at [51‑56]. Counsel for the Minister submitted that the basis for rejection of each document was the Tribunal’s evaluation of the genuineness of the document from the face of the document, and its failure in putting its concerns to the applicant did not involve anything inherently unfair.
I accept that submission as far as it goes. However, I do not accept that the Tribunal’s discussion of the documents and its assessment of the documents was unaffected by the foreign country information which it has expressly identified and which it has expressly described as showing “the high frequency of false documents produced in Bangladesh to bolster refugee claims”. The Tribunal’s opening paragraph, in my opinion, must be read to have probably coloured and influenced the Tribunal to refuse to give weight to the various documents. The Tribunal, after referring to this “independent information, which the Tribunal accepts” says “that is not to say however that all such documents are false, but it does encourage caution before reliance” (emphasis added). I consider that I should read its ensuing assessment of the documents as having been influenced, perhaps highly influenced, by the caution induced by the “independent information”. In my view, its opening statement leaves it impossible to conclude that the Tribunal’s findings in relation to the various documents were unaffected by the foreign country information that it identifies and accepts. I consider that the reasons of the Tribunal show that the information has been treated as “credible, relevant and significant” in its assessment of the corroborative material presented by the applicant.
Counsel for the Minister conceded that the information had not been put to the applicant in any fashion, subsequent to the applicant submitting the documents in October 2003. The Tribunal had ample time to do that since it did not rush to make a decision. It did not make its decision until March of the following year.
I do not consider that the Tribunal was absolved from the obligation of procedural fairness by reason of the submission of the corroborative documents after the hearing and not earlier, particularly in circumstances where the tender of the documents appears to have been prompted by statements of the Tribunal in the course of the hearing. In my view, there was a departure from an obligation of procedural fairness in the Tribunal’s failure to indicate to the applicant that it proposed to give weight and reliance on the independent information showing a high frequency of false documents produced in Bangladesh to bolster refugee claims.
Counsel for the Minister also submitted that the Tribunal’s reasoning showed, apart from the rejection of the corroborative documents, “numerous bases open to it to conclude that the applicant did not have a well-founded fear of persecution for a Convention reason”. Counsel submitted that neither the documents nor the Tribunal’s findings on the judiciary and false charges would, in any significant way, have altered the Tribunal’s conclusion. She sought to distinguish Miah’s Case (supra).
I do not accept this submission insofar as it seeks to persuade me that the denial of procedural fairness in relation to the information about false documents produced in Bangladesh was not given weight by the Tribunal as “credible, relevant and significant” adverse information when the Tribunal came to weigh up all the evidence before it. In my view, the structure of the Tribunal’s reasoning described above makes it plain that it has seen the assessment of the corroborative documents as the starting point for its reasoning, and only by rejecting all those documents was it “thus left with the unsupported assertions of the applicant”. Its subsequent reasoning has proceeded on the basis that the assertions of the applicant were in fact “unsupported”, and it has proceeded down that pathway after having rejected the documents for reasons influenced by the “independent information”.
Counsel for the Minister may well indeed have a telling point that there were aspects of the applicant's narrative which gave rise to inherent difficulties for his application for a protection visa, and I accept that another Tribunal might have regarded these as full and sufficient reasons for arriving at the same conclusion as this Tribunal. However, there is, in my view, a real risk that the information that was not put to the applicant has affected this particular Tribunal’s decision making, and I am not prepared to conclude that the outcome was inevitable and that the breach of procedural fairness was immaterial to the Tribunal’s decision.
For these reasons I have concluded that the Tribunal’s decision was vitiated by a failure of procedural fairness amounting to jurisdictional error, and that the applicant has made out an entitlement to relief by way of orders of certiorari and mandamus directed at the Tribunal. I can find no persuasive discretionary reason for refusing relief.
A procedural problem prevents my making those orders today because the Refugee Review Tribunal was only joined as a respondent to the proceedings in the course of today's amended application for leave to amend. It has not yet been served, nor filed a submitting appearance. The current Court forms and procedures have commonly assumed that it is not necessary to join the Tribunal, and indeed there was authority that by reason of the effect of s.479 of the Act the only relevant respondent was the Minister (see NAAA v Minister for Immigration & Multicultural Affairs (2002) 117 FCR 287). However, in my view, the effect of the interpretation of s.474 taken by the High Court in Plaintiff S157 (supra) is that the provision of s.479 only applies where relief is being sought “of a privative clause decision”. In the present case, the applicants have established an entitlement to relief on the basis that the Tribunal’s decision is not a privative clause decision, so that s.479 has no application. In this situation, I consider that the normal procedure in judicial review matters should be followed, and that the government agency against whom the Court’s orders are directed should be joined as a party, and, in the case of a Tribunal such as the present, make a submitting appearance.
I therefore propose to adjourn the case for a short period to allow the amended application to be served on the Tribunal and a submitting appearance to be entered before I formally make the orders I foreshadowed.
Before concluding these reasons I should note that I have not found it necessary to address the second ground of review argued by counsel for the applicant. This was that the Tribunal had disclosed a misconception of the effect of s.91R(1)(b) and (2) of the Act in the course of its reasons concerning the applicant’s claims based on his student activities set out above. My short opinion was that there was no substance to these arguments, and that the Tribunal’s reasons did not disclose any error of law in this respect.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 24 January 2005
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