SZEEF v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FMCA 661

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEEF v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 661

MIGRATION – Application to review decision of Refugee Review Tribunal – procedural fairness – s.422B of the Migration Act 1958 (Cth) – whether Tribunal obliged to make inquiries – whether Tribunal failed to comply with s.424A – whether court should exercise discretion to decline relief sought – matter remitted.

Migration Act 1958 (Cth), ss.351, 422B, 424A, 427
Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)
Commonwealth of Australia Constitution Act (Cth), s.75(v)

Abebe v The Commonwealth (1999) 197 CLR 510
Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 11
Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72
Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 KB 223
Commissioner for Australian Capital Territory State Revenue v Alphaone (1994) 49 FCR 576
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
Das v Minister for Immigration & Multicultural Affairs [2004] FCA 489
Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Hassen v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1036
Gararth v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 316
Kioa v West (1985) 159 CLR 550
Lay Lat v Minister for Immigration & Multicultural Affairs [2006] FCAFC 61
M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131
M162 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1146
M212 of 2003 v Refugee Review Tribunal [2004] FCAFC 293
Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27
Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1
Minister for Immigration & Multicultural Affairs v Mohammed (2000) 98 FCR 405
MZWPK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1256
Ozmaman v Minister for Immigration & Multicultural Affairs [1997] FCA 256
NAZYvMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744
Paul v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 113 FCR 396
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 451
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
Santhikumar v Minister for Immigration & Multicultural Affairs [1999] FCA 1082
Somaghi v Minister for Immigration & Local Government & Ethnic Affairs (1991) 31 FCR at 117
SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493
SZBNK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 998
SZBTC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 260
SZCJY v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 556
SZDMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1034
SZDWF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 56
SZEAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1394
SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514
SZEIE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 987
SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1138
SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435
STKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 251
Testamichael v Minister for Immigration & Multicultural Affairs [1999] FCA 1661
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
VXDC v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 146 FCR 162
W396/01 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 103
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277
WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 79

Applicant: SZEEF

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG2534 of 2004

Judgment of: Barnes FM

Hearing dates: 23 February 2006, 3 April 2006 & 11 April 2006

Last submission: 7 July 2006

Delivered at: Sydney

Delivered on: 11 July 2006

REPRESENTATION

Counsel for the Applicant: Mr S. Prince

Solicitors for the Applicant: Turner Freeman

Counsel for the Respondent: Mr S. Lloyd

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That a writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 5 November 2003.

2. That a writ of mandamus issue requiring the Refugee Review Tribunal to redetermine the applicant’s application according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2534 of 2004

SZEEF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 5 November 2003 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.  The applicant, who is a citizen of Ghana, arrived in Australia on 2 April 2002 with other members of a cultural group.  He applied for a protection visa, claiming to fear persecution because he was a member of a cultural performance group which had been established and sponsored by Nana Kwaku Obour, a family head of the Tafo Ashanti traditional area of Ghana.  He claimed that after a chieftancy dispute arose between Nana Kwaku Obour and the newly ‘enstooled’ King of Tafo, his group was harassed by Nana Obour’s opposition and their lives were threatened because they were sponsored by Nana Obour.  He claimed that the group feared persecution because it was perceived as promoting the ideas of Nana Kwaku Obour and gave him a forum at which to speak.  He claimed Nana Obour wanted Baffour Owusu to be installed as chief and this was opposed by Nana Oponi’s group which was trying to install his nephew. 

2. The applicant claimed that since leaving Ghana he had been informed that opponents of Nana Obour were still looking for them and that this had led him to believe that he may come to some harm.  The applicant claimed that he and his colleagues had a great fear for their lives as chieftancy disputes usually resulted in chieftancy contestants and identifiable supporters losing their lives.  He claimed that as identifiable supporters of Nana Obour the members of his group feared members of the opposition group (Nana Oponi’s supporters) who were trying to install Nana Oponi’s nephew as the new chief and that the authorities had tried and failed to solve this dispute.  He did not expect them to be able to offer him protection.

3. A delegate of the first respondent refused the application.  The applicant sought review by the Refugee Review Tribunal by application lodged on 16 July 2002.  In his application for review the applicant took issue with a number of aspects of the decision of the delegate of the first respondent, contended that his claims were plausible and that he was unwilling to return to Ghana because of his fear that he would be killed.

4. On 28 August 2002 the Tribunal received several documents (a statutory declaration of a Nana Kwaku Owusu, a letter said to be from Nana Kwaku Owusu’s lawyer and a letter from ‘I Nana’) by fax from a Sydney fax number under cover of a letter which purported to come from a named person writing on behalf of Nana Kwaku Obour stating that four named members of the cultural group to which the applicant claimed to belong (not including the applicant) were ‘concerned with the case’ and pleading for their protection.  A covering letter also stated that two named persons, including the applicant, were not concerned with the case and “can come to Ghana at any time” as they “have nothing to explain or any more judgment to face in Ghana and it is very very safe for them to come back”.

5. On 15 August 2003 the Tribunal wrote to the migration agent for the applicant advising him that as four named applicants (including the applicant) had closely related claims, she had scheduled hearings for those applicants to commence at the same time on the same day, although each applicant would have an opportunity to give evidence in private. 

6. A response to hearing form was completed for the applicant in which it was indicated that the applicant wanted the Tribunal to take evidence from two named persons, another applicant whose hearing was to be conducted at the same time and a named person in New Zealand who had allegedly just come back from Ghana and told them the mob was still looking for them and that a similar case had happened in northern Ghana.  The applicant provided a handwritten submission to the Tribunal referring to the situation in Ghana, suggesting that state protection was limited especially when one was not a supporter of the government and taking issue with the independent information relied on by the first respondent’s delegate. 

7. The applicant attended a hearing on 15 September 2003. A transcript of the hearing is before the Court, from which it is apparent that the Tribunal engaged in a general overview of the process with all the applicants present and then proceeded to interview each applicant separately while the other waited outside the hearing room. It then continued with the hearing with each of the applicants present in the room at the same time. At that point it raised with them the material received by the Tribunal on 28 August 2002. Subsequently the Tribunal again dealt with each applicant individually. The Tribunal then invited all of the applicants back to the hearing room together with their adviser and raised a number of issues with him. It has not been suggested that there was any failure to comply with s.425 or any other provision of the Migration Act 1958 (Cth) in relation to the hearing.

8. On 17 September 2003 the Tribunal wrote to the applicant’s adviser inviting comment on certain country information about chieftancy disputes and the names of the past and current chiefs of the relevant area in Ghana.  The adviser responded in relation to the country information and enclosed handwritten submissions from each of the four applicants, what is apparently a joint submission about the country information and another in relation to the information the Tribunal had received on 28 August 2002 that asked the Tribunal to have regard to the information received by fax as it could be ‘one of the channels’ their enemies could use to get them back to Ghana. 

Tribunal decision

1. In its reasons for decision the Tribunal referred to the fact that the applicant had arrived in Australia with five other members of the group and that they had lodged identical applications.  The applicant claimed to fear he would be killed or face other serious harm in Ghana because of his involvement in a chieftancy dispute.  However the Tribunal found that the applicant was not a truthful or credible witness.  It found serious inconsistencies in the claims he made to the Department and to the Tribunal, that some of his claims were at odds with other information before the Tribunal and that some of the evidence he gave at the hearing was vague and unconvincing.  The Tribunal referred to a number of areas of concern, including the fact that in the applicant’s written submissions to the Department he had indicated that he and other members of his group had been harassed and threatened in Ghana because they supported Nana Obour and his nephew and that the problems were so serious that he had reported them to the police, whereas the hearing he had said that he had not experienced any problems prior to his departure from Ghana.  The Tribunal also referred to the fact that the applicant’s written submissions indicated that Nana Obour went on the run while the applicant was still in Ghana, whereas at the hearing he said that Nana Obour had gone on the run after he left Ghana. 

2. Further, the applicant’s written submission to the Department had spoken of a “newly enstooled King of Tafo” at the time of the dispute which caused him problems in Ghana and indicated that the previous occupant of the position had died shortly before this time, whereas at the hearing he had said that the position of Tafohene had been vacant for many years and remained vacant until after his departure from Ghana.  This information was said not only to contradict the applicant’s earlier evidence but also to be at odds with other information before the Tribunal. 

3. The Tribunal observed that the applicant was unaware that Nana Baffour held the position of Tafohene in 1999.  It did not accept his subsequent explanation for failing to acknowledge at the hearing that Nana Baffour held this position.  It found this explanation (that he did not recognise Nana Baffour as the ‘real’ Tafohene) to be concocted to overcome difficulties posed by the fact that his claims were at odds with other evidence before the Tribunal.  The Tribunal also rejected the applicant’s submission that he was under pressure and did not understand the questions at the Tribunal hearing very well.  It had no doubt that he understood the questions asked in relation to Nana Baffour. 

4. The Tribunal also had regard to the fact that the applicant was unaware that the position of Tafohene had been occupied by Nana Frimpong II for at least six months before the applicant left Ghana and around the time the claimed dispute allegedly arose.  It did not accept the applicant’s explanation for this lack of knowledge (that he had been preparing for a trip) given his claimed involvement in a campaign to support a candidate for the position to such an extent that his life was in danger. 

5. The Tribunal also found that when asked about the chieftancy dispute at the hearing, the applicant was unable to give a “convincing account” of the dispute or of his role in it despite his claim “that he had been involved in a campaign to support his sponsor’s candidate for Tafohene. 

6. The Tribunal took note of the fact that there was no mention in the Ghanian Chronicle newspaper of serious violence (involving eight deaths) which the applicant claimed occurred as a result of the chieftancy dispute between October 2001 and March 2002, despite the fact that there were numerous articles on other chieftancy disputes and that such claimed violence was uncommon.  The Tribunal found that it would have expected this to be reported in the media.  It considered that this was another indication that the applicant had concocted the claims regarding his involvement in a chieftancy dispute in Tafo prior to his departure from Ghana.  The Tribunal concluded:

   After considering all of the relevant evidence, I do not accept that [the applicant] was involved directly or indirectly in a chieftancy dispute prior to his departure from Ghana.  It follows that I do not accept that his life is in danger or that he faces any other problems in Ghana because of his involvement in this dispute.  As he has made no other claims against the Convention, I am not satisfied that he has a well-founded fear of persecution for any of the reasons contained in the Convention.

7. The Tribunal had indicated at the hearing that it proposed to ignore the documents faxed to it on 28 August 2002.  However in its reasons for decision it stated that it had considered the applicant’s claim that the correspondence was sent by his enemies to force him to return to Ghana.  It found that even if it accepted the applicant’s claim about involvement in the dispute at face value (which it stated that it did not), this claim about his enemies was far-fetched.  It found that it was not plausible that the applicant’s alleged enemies in Ghana would be so concerned about his relatively minor role in the dispute that they would go to such lengths to force him to return to face punishment or that they would be sufficiently well informed of the progress of his application to know to send documents to the Tribunal.  It found that the documents did not alter its conclusion that the applicant concocted his claims regarding his involvement in the alleged chieftancy dispute. 

8. The applicant sought review by application filed in this Court on

   
   

   13 August 2004.  The application was originally set down for hearing on 12 January 2005 before Federal Magistrate Smith.  The respondent agreed to an adjournment on the basis that the applicant pay the respondent’s costs thrown away.  The matter was adjourned for directions by a registrar and subsequently relisted for hearing before me. 

9. The applicant now relies on a further amended application filed in Court on 23 February 2006.  Counsel for the applicant indicated that Particular 2(e) in the further amended application was not pressed.

Procedural fairness

1. It is contended that the applicant was denied procedural fairness in that:

   1.  The Tribunal did not give to the applicant an opportunity to respond to its adverse findings on the applicant’s sur place claim (CB 132.8-10).  That claim was made by the applicant on 17 September 2003 in further submissions following the hearing and it concerned the facsimile received by the Tribunal on 18 August 2003 (sic) (CB 83 to 86) which was provided to the applicant at or after the hearing.

   2.  The Tribunal did not make any or any adequate attempts to inquire into the material contained in the facsimile received by the Tribunal on 18 August 2003 (sic).

2. It is clear that the references to the facsimile of 18 August 2003 are intended to refer to the facsimile received by the Tribunal on 28 August 2002. 

3. In written submissions it was submitted for the applicant that because the application for protection visa was made on 2 May 2002, s.422B of the Migration Act 1958 (Cth) (the Act), which came into operation on

   
   

   4 July 2002 had no application.  However, as contended for the respondent, pursuant to the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) Schedule 1, Item 7(5), s.422B is applicable if the review application was made after 4 July 2002. It is not disputed that the review application was made after this date. A copy of the complete review application was tendered by the respondent as an exhibit. It is signed and dated 15 July 2002.

4. In oral submissions counsel for the applicant conceded that s.422B did apply. However he suggested that if the then pending decision of the Full Court of the Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 took the view that there was but one application from the protection visa application stage to the completion of the review by the Tribunal then similarly s.422B should take effect as at the date of the original protection visa application. It is not necessary to consider this issue further as the Full Court in SZEEU followed Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27 in finding (albeit in the context of a consideration of the language of s.424A(3)(b) which refers to information that the applicant gave for the purposes of the application) that ‘application’ in this context meant the protection visa application. This argument does not assist the applicant.

1. On the basis that s.422B did apply, counsel for the applicant nonetheless pursued the second basis on which the claim of denial of procedural fairness was put, that being that the Tribunal did not make any or any adequate attempts to inquire into the material contained in the facsimile received by the Tribunal on 28 August 2002. It was contended that the Tribunal could have used its powers to ascertain the provenance of the telephone number printed on the top of the facsimile. In particular, it was submitted that, consistent with the decisions of the Full Court of the Federal Court in WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 and WAJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 79, as s.427(1)(d) of the Act (which provides that for the purpose of a review of the decision the Tribunal may require the Secretary to arrange for the making of any investigation or any medical examination that the Tribunal thinks necessary with respect to the review and to give the Tribunal a report into that investigation or examination) did not deal with the duty to inquire, then the common law in this respect would be left to operate because a duty to inquire would not be a matter which was within the scope of the provision. In support of the proposition that a duty to inquire could arise at common law reference was made to the decision of Wilcox J in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 and to SZDWF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 56.

2. Counsel for the respondent submitted that under s.427 of the Act Parliament had conferred a power to inquire without a duty to inquire, that this covered the field and that s.422B meant that natural justice could not be relied upon to supplement this issue. In any event it was contended that there was no duty to inquire at common law arising in the manner contended for by the applicant. It was submitted that Prasad did not stand for the proposition that an unreasonable failure to make an inquiry amounted to jurisdictional error as appeared to be submitted.  Rather it was said that in Prasad, in determining whether a decision-maker’s ultimate exercise of jurisdiction was Wednesbury unreasonable (Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1KB 223), Wilcox J had found that the Court should consider not only evidence before the decision-maker, but also any evidence that would have been before the decision-maker but for an unreasonable failure to obtain the evidence. It was not contended by the applicant that there was Wednesbury unreasonableness in this case.  Hence it was suggested that Prasad was not relevant.  In any event it was contended that the Tribunal did not act unreasonably in dealing with the documents in the way it did. 

3. Mr Lloyd for the respondent drew the Court’s attention to the recent decision of the Full Court of the Federal Court in Applicant M164/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 11 in which Lee (with whom Tamberlin J agreed), found that where a Tribunal had disregarded documents as “contrived” where it had rejected the credibility of the appellant’s claims based on the implausibility of elements of her account. Lee J found that the Tribunal’s power to make inquiries about the genuineness of the documents should have been used – not because there was a duty to exercise the discretion in s.427(1)(d) (see [75]) but as part of the Tribunal’s obligation to accord procedural fairness (see [69]). In that context Lee J observed at [76]:

   “If the material before the Tribunal and the circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such inquiry is apparent, the failure of the Tribunal to exercise the power and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding.  In particular that issue will arise where the Tribunal is prepared to draw adverse inferences from material before it on grounds that are slight and in the absence of the assistance to the hearing process that would be provided to the Tribunal by reasonable use of the powers provided under s.427(1)(d).” 

4. However, his Honour noted (at [78]) s.422B did not apply to that case so that it was unnecessary to consider whether that section had any bearing on the steps the Tribunal may have to take to accord procedural fairness.

5. At the time of the hearing there was a difference of opinion in Federal Court authority as to whether the effect of s.422B was that Division 4 of Part 7 covered the field in relation to the Tribunal’s obligation to afford procedural fairness (see in particular SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493, SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514, SZBTC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 260) and VXDC v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 146 FCR 562 at [22] – [31. In Lay Lat v Minister for Immigration & Multicultural Affairs [2006] FCAFC 61 the Full Court of the Federal Court held (at [60] – [70]) that the equivalent of s.422B (s.51A) excluded the common law natural justice hearing rule (although not other aspects of the common law of natural justice such as the bias rule). Hence on the basis that s.427(1)(d) does not impose a duty to inquire, this ground cannot succeed.

6. In any event even if there is still room for the operation of aspects of the rules of natural justice, no lack of natural justice is established in this case.  The Tribunal has no duty to make inquiries to make out the applicant’s case (Abebe v The Commonwealth (1999) 197 CLR 510 at [178] per Gummow and Hayne JJ). In this instance, while the applicant asked the Tribunal (in a post-hearing joint submission of

   
   

   17 September 2003) to see if it could trace the origin of the fax, the Tribunal did not represent that it would make inquiries about the faxed material.  Nor was anything said which would “have reasonably created an expectation that it would do so”SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [61] per Moore J, at [172] per Weinberg J and [251] per Allsop J and cf Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1. Further, whatever the precise scope of Prasad, it has not been established that this is a case in which it was obvious that material was readily available to the Tribunal which was “centrally relevant to the decision” in the Prasad sense (cf SZDWF and see STKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 251 at [25]).

7. Further, this is not a case in which the Tribunal rejected the applicant’s credibility based on mere implausibility or inconsistency in recollection or, indeed, where it rejected the documents faxed to it on 28 August 2002 as fabricated for the purpose of the claims.  Nor is this a case in which the applicant sought to rely on documents in corroboration of his claims.  Rather he contended that the document which suggested that it was safe for him to return to Ghana must have been sent by his enemies.  In all the circumstances, no lack of procedural fairness is established. 

8. Insofar as the applicant still contends that there was a lack of procedural fairness in that the Tribunal did not give the applicant “an opportunity to respond to its adverse findings on [his] sur place claim” made after the hearing, this is not established.  Whether or not this claim is correctly characterised as a sur place claim, the Tribunal was not obliged to invite comment on its mental processes and provisional views.  It cannot be said that the findings in issue constituted an “adverse conclusion which has been arrived at which would not obviously be open on the known material” in the sense considered in Commissioner for Australian Capital Territory State Revenue v Alphaone (1994) 49 FCR 576 at 591 – 592.

Section 424A

1. The next ground in the further amended application is that the Tribunal did not comply with the requirements of s.424A of the Migration Act 1958 in that it did not put to the applicant a number of items of information being:

   (a) It did not provide the applicant with the material contained in the facsimile received by the Tribunal on 18 August 2003 prior to the hearing (the “facsimile information”)

   (b) That an earlier statement (presumably in the Protection Visa application) that problems were faced by the group prior to leaving Ghana (which was compared with [the applicant’s] statement at the hearing that he had not experienced any problems prior to his departure) (the “earlier problems information”).

   (c) The applicant’s “written submissions” (presumably in support of the protection visa application) indicate that Nana Obour went on the run while he (presumably the applicant) was still in Ghana, (which was compared with the Tribunal’s view that the applicant said Obour went on the run after he left Ghana (the “on-the-run” information))

   (d) The written statement in support of the protection visa which the Tribunal took to speak of a “newly instooled king of Tafo” at the time of the dispute and that the previous occupant of the position died shortly before this. (The Tribunal found this inconsistent with its view that the applicant’s evidence at the hearing was that the position of Tafo Hene had been vacant for many years (“the vacancy information”)). 

2. Section 424A(1) is as follows:

   Applicant must be given certain information

   (1) Subject to subsection (3), the Tribunal must:

   (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

   (c) invite the applicant to comment on it.

   (2) The information and invitation must be given to the applicant:

   (a) except where paragraph (b) applies – by one of the methods specified in section 441A; or

   (b) if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.

   (3) This section does not apply to information:

   (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b) that the applicant gave for the purpose of the application; or

   (c) that is non-disclosable information.

the ‘facsimile information’

1. The first aspect of this ground is that the documents received by the Tribunal on 18 August 2003 constituted information within the meaning of s.424A which was provided by someone other than the applicant and related personally to the applicant. It is apparent the reference to 18 August 2003 is meant to be a reference to 28 August 2002. It was submitted that such information formed part of the reason for the Tribunal rejecting the application and that hence it ought to have been put to the applicant in writing for comment.

2. In particular it was contended that s.424A applied not only to positive information but also to the rejection of the claim that the information of 28 August 2002 indicated a sur place claim because of the attitude taken to the document by the Tribunal.  In other words it was said that the information was used as a reason to refute the claim that there was a sur place ground of entitlement to a protection visa under the Refugees Convention and hence that the information in the documents was the reason or part of the reason for the decision under review.  It was contended that this was not a case in which there was simply an absence of information in the sense considered by Finn and Stone JJ in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [26] – [29] and that the knowledge of the Tribunal of the content of the information provided by the facsimile was part of the reason for dismissing it and hence rejecting the sur place claim.  (See SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200 at [34]). It was clarified that the reference to a sur place claim was to the claim made after the Tribunal hearing in the statement signed by the four visa applicants annexed to the adviser’s letter of 25 September 2003:

   We want to remind her [the Tribunal member] once again that the letter bears a seal from Ghana judicial service which is an indication that the writer or sender sworn an affidavit for the authorities to know how serious the letter is.

   We therefore pleaded on you to consider and also if you can traced the origin of the facts for our safety.  It can be one of the channels our enemies want to use to get us back to Ghana.  We trust you can do it counting on your co-operation.

3. In submissions made after the decision in SZEEU, counsel for the applicant submitted that the broad approach taken by Allsop and Weinberg JJ (see in particular Weinberg J at [158] – [164]) supported his submissions. However, counsel for the applicant did not elaborate on the question of whether (in light of the word “would” in s.424A(1)) there could be a failure to comply with s.424A “at some point prior to the making of the decision” (as discussed by Allsop J in SZEEU at [209]) although this ground was expressed to refer to a contravention of s.424A in failing to put the information to the applicant prior to the hearing. In the absence of submissions on this issue I consider it appropriate to proceed on the basis that, as Allsop J stated in SZEEU at [208]:

   “In circumstances where (as is usually the case) the complaint is in the context of a decision of the Tribunal that has been made by a set of reasons generally [the identification, by ‘unbundling’ of the reason or part of the reason for the lack of satisfaction as to the existence of protection obligations] this is to be undertaken by reference to the reasons of the Tribunal in the context in which one finds them.” (Also see Paul v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 113 FCR 396 and VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471)

4. Counsel for the respondent took issue with the characterisation of the claim in issue as a “sur place” claim, on the basis that what the applicant was saying in relation to the material that had been faxed to the Tribunal in August 2002 was not that it related to a fresh event after he had left his country of origin such as to establish a separate basis for a fear of persecution, but rather that it should or could be construed as supporting his existing claim.  It was contended that it was open to the Tribunal to find that the applicant’s claim that the correspondence was sent by his enemies (that is, people who opposed Nana Obour in the chieftancy dispute) to force him to return to Ghana was far-fetched that aspects of the claim were not plausible and hence that the document did not alter its conclusion that the applicant concocted his claims regarding his involvement in the alleged chieftancy dispute. 

5. It was contended for the respondent that while it was clear that the Tribunal was under an obligation to give written notice of particulars of information that it considered to be the reason or part of the reason for its decision, in this case the Tribunal “unambiguously” did not consider the documents faxed to it on 28 August 2002 to be even “part” of its reasons and that as the Tribunal found that the documents did not alter its conclusion that the applicant concocted his claims no obligation arose under s.424A. It was suggested that in making this finding the Tribunal declined to give the information any weight and declined to accept the applicant’s submission as to inferences that should be drawn about and that in so doing the Tribunal was not making that information the reason or part of the reason for affirming the decision under review. Rather, the reason for affirming the decision under review was said to be because the applicant was not believed about his claims to fear harm by reason of his association with the cultural group and being an identifiable supporter of Nana Obour and that such status would lead to persecution.

6. Counsel for the respondent also referred to what was said (admittedly obiter) by the High Court in Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 at [11] – [12]. That case concerned the question of whether there had been a denial of procedural fairness. However the Court observed that neither party had contended that s.424A applied. Their Honours stated at [12]:

   It is as well to explain why that was so.  As for 424A, it is enough to notice that that provision is directed to “information that the Tribunal considers would be the reason, or a part of the reason, for affirming a decision that is under review”.  The Tribunal said, in its reasons, that it did not act on the letter or the information it contained.  That is reason enough to conclude that s 424A was not engaged.

7. In this case it is not disputed that the material in the documents faxed to the Tribunal on 28 August 2002 was information for the purposes of s.424A(1) or that the Tribunal did not give the applicant a s.424A written notice in relation to such information. Section 424A does not require that where the obligation arises the notice must be given before any Tribunal hearing (see SAAP and see SZEEU per Allsop J at [208]) but there remains the issue of whether the obligation under s.424A(1) did arise in relation to the documents. The critical issue is whether the information in the documents was information that the Tribunal considered would be “the reason or part of the reason” for affirming the decision under review.

8. In SZEEU Allsop J (with whom Weinberg J agreed) considered in some detail the impact of the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 on the meaning of the concept of “information that the Tribunal considers would be the reason or a part of the reason for affirming the decision”.  His Honour found (at [215]) that:

   “In my view, in the light of SAAP in circumstances where one is faced with a decision of the Tribunal with reasons and the complaint is a contravention of s.424A(1), the question to ask, by reference to the reasons of the Tribunal in the context in which one finds them (as revealing what would be the reason or a part of the reason for affirming the decision immediately prior to the making of the decision), is whether the information in question was a part (that is any part) of the reason for affirming the decision. To the extent that the reasons of the relevant majorities in Paul and VAF can be seen to require that the relevant part of the reason have a stature or importance, or be of a character, which would make it unfair not to invoke the procedures of s.424A, I think SAAP requires that such an approach be rejected.  It is only necessary that the information be a part of the reason.”

9. However, his Honour went on to say at [216]:

   “That said, it is necessary to recognise the guidance that one nevertheless receives from aspects of [33] in VAF. One always needs to analyse and interpret the reasons of the Tribunal in order to understand the reason for the ultimate reason or conclusion of the lack of satisfaction of the existence of protection obligations. Merely because something is contained in the text of the reasons of the Tribunal which involves “information” does not conclude the question whether it was (and, in the relevant sense, would be) a part of the reason for affirming the decision. The whole of the written reasons must be analysed and interpreted in their context to assess why it was that the Tribunal acted as it did (and so, in the relevant sense, to assess what would be, prior to making the decision, the reason or a part of the reason). Having thus ascertained the reason or reasons (if there be more than one) why the Tribunal was not relevantly satisfied, any information that was (and thus, in the relevant sense, would be) a part of the reasoning process to explain such reason engages the operation of s.424A, without any additional requirement (for which Paul and VAF appear to call) that the relative importance of the information to the reasoning process be assessed to form a judgment as to whether fairness requires the engagement of s.424A. The above tasks of assessment or interpretation of the Tribunal’s reasons, of ascertaining what was any reasoning process and of assessing the relevance of any information thereto may not be straightforward and may lead to conclusions about which minds may differ.

1. Weinberg J agreed with the analysis of Allsop J, stating (at [158] – [159]) that he had in mind “the quite rigorous approach that has been taken by the High Court when considering the consequences of a breach of natural justice” and expressing the view that (at [163]):

   “the strict view that the courts have  taken in relation to breaches of the rules of natural justice can, in my view, inform the application of the expression ‘a part of the reasons’ in s.424A.  The cases suggest that this expression should be read benevolently, in favour of an applicant for review.  If there is any doubt as to whether information that is adverse to an applicant did form a part of the reason for decision, that doubt should generally be resolved in favour of an applicant.”

2. The decision of the High Court in Applicant VEAL of 2002 was after SAAP.  It is notable that the reason their Honours gave in VEAL (at [12]) for the view that s.424A did not apply was that the Tribunal “said, in its reasons, that it did not act on the letter or the information it contained.”  In contrast, in considering whether the Tribunal was obliged as a matter of procedural fairness to put the same information (a ‘dob-in’ letter) to the applicant for comment as “adverse information that was credible, relevant and significant to the decision to be made” (see Brennan J in Kioa v West (1985) 159 CLR 550 at 669 and Applicant VEAL at [15] – [18]) their Honours took a different approach, pointing out that as Brennan J had stated in Kioa v West at 662, the principles of natural justice or procedural fairness “are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise” and that such principles “govern what a decision maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised.”  In that context it was held that the fact that the Tribunal stated that it gave no weight in reaching its decision to the dob-in letter or its contents, did “not demonstrate that there was no obligation” to put the information to the appellant for comment.  In other words the fact that in its decision a Tribunal ultimately characterised information was irrelevant in relation to the claim of a lack of procedural fairness as it was as not determinative of whether that information was of a kind that could not be dismissed from further consideration before the decision was made (see Applicant VEAL at [17] – [18]). In the present context there is no suggestion that procedural fairness is in issue in relation to giving the applicant an opportunity to comment on the facsimile information. Whatever the effect of s.422B, the Tribunal did raise the facsimile information with the applicant in the hearing.

3. As Allsop J suggested in SZEEU it is relevant to have regard to the whole of the Tribunal reasons to determine why the Tribunal acted as it did and whether the information was (or would be prior to making the decision) part of the reason for affirming the decision.  In Applicant VEAL the Tribunal was able to put information aside and did so because it reached a conclusion that the applicant was not entitled to a protection visa on other bases.  In other words it first reached the conclusion that the application should be refused and then stated at the end of its reasons that it had been unable to test the claims made in the letter in question and accordingly gave it “no weight”.  It stated expressly that it had “decided this matter solely for reasons outlined above” (see Applicant VEAL at [5]). While the Tribunal in this case did not make a clear statement such as that considered in VEAL, what it did must be seen in context.

4. In this instance the Tribunal recorded receipt of the documents and the discussion at the hearing in which the applicants were advised that, given that the Tribunal had “no idea who had sent the documents or why”, the Tribunal intended to ignore them.  It also recorded the request of the four applicants in post-hearing submissions that the Tribunal reconsider its decision to ignore the documents, their suggestion that the letter was sent by enemies as a means to get them to return to Ghana and their request that the origin of the letter be traced. 

5. In its findings and reasons the Tribunal found, for reasons unrelated to and independent of these documents, that the applicant was not a truthful or credible witness.  The credibility finding was based on inconsistencies in the applicant’s claims, the fact that some of his claims were at odds with other information before the Tribunal and because some of the evidence he gave at the hearing (which is described in the Tribunal reasons) was vague and unconvincing.  The Tribunal did refer to the information in question in outlining the material put before it and at the end of its decision (after it had found, based on its rejection of the applicant’s credibility, that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason).  However, neither the fact that the information was “contained in the text of the reasons” (Allsop J at [216] in SZEEU) or, on the other hand, that it was addressed in the paragraph following the Tribunal’s ultimate finding, is of itself determinative. 

6. It is necessary to consider the relevance of the information to the applicant’s claims.  Counsel for the applicant contended that he made a ‘sur place’ claim.  A person can become a refugee because of a fear of persecution arising out of events occurring in his or her country of origin after departure as well as a result of the person’s activities outside that country.   In Somaghi v Minister for Immigration & Local Government & Ethnic Affairs (1991) 31 FCR at 117 per Gummow J and in Ozmaman v Minister for Immigration & Multicultural Affairs [1997] FCA 256 reference was made to the United Nations High Commission on Refugees, Handbook on Procedures and Criteria for Determining Refugee Status which explains the concept of a refugee ‘sur place’ not only by reference to the actions of a person outside his country but also by reference to circumstances arising in the country of origin during such person’s absence. 

7. As French J stated in Minister for Immigration & Multicultural Affairs v Mohammed (2000) 98 FCR 405 at 412:

   “Turning back to the terms of the Convention, Art 1A is sufficiently widely expressed to allow for claims of refugee status which derive from events occurring while the claimant is outside the country of origin.  Persons making claims based on such events, designated generally as “refugees sur place”, may seek protection based upon post-departure change of circumstances or dramatic intensification of existing conditions in the country of origin or because of the consequences of their own activities while abroad: J.C. Hathaway, the Law of Refugee Status (1991), pp 33-34.  It is a particular application of that general proposition and of the ordinary meaning of Art 1A(2) that political opinion, wherever and however expressed may give rise to a well-founded fear of persecution in the country of nationality which will attract Convention protection.  This is not a controversial proposition.  It is well recognised in writings on the topic and in authority: A Grahl-Madsen, The Status of Refugees in International Law (1966), Vol 1, p.248; Hathaway, p33; United Nations High Commission on Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (1992), par 96; Somaghi at 116.”

8. The applicant did not claim that he had become a refugee ‘sur place’ because of new circumstances that had emerged since his departure from Ghana or that he had a fresh claim in addition to the claim based on events before his departure (cf Testamichael v Minister for Immigration & Multicultural Affairs [1999] FCA 1661, Santhikumar v Minister for Immigration & Multicultural Affairs [1999] FCA 1082, W396/01 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 103). Rather he provided a response to the Tribunal after he was made aware of the documents faxed to the Tribunal on 28 August 2002. Those documents did not suggest that any new events had occurred, but rather confirmed that certain named people (not including the applicant) were present at an event in Ghana when they showed their opposition to rivals of their patron and also that they were regarded as the cause of death of a rival chieftan by voodoo. The only reference to the applicant is in the covering letter (not purporting to come from the patron or the lawyer in Ghana), in which it was stated, allegedly on behalf of Nana Kwaku Obour, that 4 named people were concerned with the case and should be protected but that the applicant and another named person “were not concerned with the case and can come back to Ghana at anytime” and that they had “nothing to explain or any more judgment to face in Ghana and it is very very safe for them to come back.”

9. The joint submission of 17 September 2003 is from four protection visa applicants including two of those named as at risk in the information of 28 August 2002.  That submission referred to a seal on one of the documents said to be from Ghana and suggested that the fax “can be one of the channels our enemies want to use to get us back to Ghana.”  It did not suggest, nor does the material raise, a claim that whether or not the applicant was a refugee at the time he left Ghana there had been a post-departure change of circumstances in Ghana or even an intensification of existing conditions in Ghana or that his activities in Australia provided a basis for his claim to fear persecution. 

10. The only basis for the applicant’s claim was that he feared persecution because of his direct or indirect involvement in a chieftancy dispute prior to his departure from Ghana.  Hence it is not the case that the Tribunal had to deal with a separate ‘sur place’ claim, such that its reasoning in relation to such claim would form a reason or part of the reason for affirming the decision under review.  Rather, having rejected the basis for the applicant’s claims to fear persecution for a Convention reason in its entirety for reasons unrelated to the documents, the Tribunal nonetheless addressed his post-hearing evidence (which depended on acceptance that he had been involved in a chieftancy dispute) that the correspondence was sent by his enemies “that is people who opposed Nana Obour in the chieftancy dispute” to force him to return to Ghana. 

11. While the Tribunal addressed this aspect of the applicant’s evidence, in doing so it made it clear that for the reasons already given, it did not accept the applicant’s claims regarding his involvement in the chieftancy dispute and that it had already concluded that he concocted these claims.  It is apparent that it reached that conclusion without taking into account the documents or the applicant’s claims about the involvement of his enemies.  In rejecting the applicant’s credibility it did not rely on what the documents said about it being safe for this applicant (as distinct from other named protection visa applicants) to return to Ghana.    

12. Hence as in Applicant VEAL, the Tribunal’s finding in relation to this aspect of the applicant’s evidence played no part in its reasons for affirming the decision that he was not entitled to a protection visa.  It did not accept his claims about involvement in the chieftancy dispute.  Its finding that the documents did not alter the conclusion it had already reached that the applicant concocted his claims regarding his involvement in the alleged chieftancy dispute cannot be seen to have been “a part of the reason” for affirming the decision.  While the Tribunal did not go so far as to state that the information had played no part in its reasoning, reading the decision as a whole and in context, the Tribunal’s findings that it did not know who sent the documents or why they did so and that they did not alter its conclusion are, consistent with the approach of the High Court in Applicant VEAL of 2002, a clear indication that such material played no part in why the Tribunal acted as it did (in the sense considered in SZEEU at [216]). That is not to say that in some other circumstances information referred to after a conclusion was expressed rejecting certain claims might not form a part of the reason for a Tribunal’s lack of satisfaction and in that sense a part of the reason for affirming the decision under review. However in the particular circumstances of this case it has not been established that the information was part of the reasoning process to explain the reasons why the Tribunal was not satisfied of the existence of protection obligations.

Inconsistencies and s.424A

1. It was further contended that s.424A was breached in that inconsistencies between information in the protection visa application and the applicant’s evidence at the hearing in relation to the “earlier problems”, “on the run” and the “vacancy” information was not put to the applicant for comment in accordance with s.424A of the Act.

2. It was contended generally for the applicant that in light of the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 the information in the applicant’s protection visa application which was in issue ought to have been put to the applicant in compliance with s.424A of the Act. It was submitted that this information was clearly a part of the Tribunal’s reason for affirming the decision under review, that it was personal to the applicant and that it did not fall within the exception to s.424A(3)(b) because it was provided in support of the protection visa application and not the review application (Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27).

3. It was submitted first that it was clear from the Tribunal reasons for decision that the claims in the protection visa application (which was in a common form filed in relation to each of the applicants who attended the hearing) were an amalgam of each of the applicant’s claims and did not appear to be solely attributable to the applicant.  In these circumstances it was contended that it could not be said that the information in this application was given by the applicant for the purposes of the application as it was not sourced from the applicant himself. 

4. The Tribunal did observe that the members of the cultural group had lodged identical protection visa applications.  However as part of his application the applicant swore a statutory declaration as to the completeness and correctness of the information supplied on or with the application form.  There is no evidence before the Court to suggest that the applicant did not understand that he was putting forward the information in the application form in support of his visa application.  In these circumstances I am not persuaded that the fact that a common form was used by a number of applicants means that the information in the form signed by the applicant was not given by him. 

5. However any information in the protection visa application was given to the Department and, as established in Al Shamry and confirmed in SZEEU, without more such information is not given for the purposes of the review application within the s.424A(3)(b) exception to the s.424A(1) obligation.

6. In submissions provided after SZEEU was decided, counsel for the applicant pointed out that Moore J (with whom Allsop J at [219] and Weinberg J at [157] agreed in this respect), found at [20] that he did not accept that by adopting a statement made in connection with a protection visa application at the hearing before the Tribunal that information was “transformed into information provided by the appellant in his application for review”.  His Honour accepted that the approach of Jacobson J in NAZYvMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744 was correct. Moore J continued:

   “If the Tribunal comes to know of what was said by an applicant at a point before any application for review was made, and views what was said at that time as material to its assessment of what was later said by an applicant, then the mere adoption of the earlier statement during the review process would not result in the knowledge (and relevantly information in the present appeal) being comprehended by s 424A(3)(b).”

7. It was contended that this view was supportive of the applicant’s case.  Further, insofar as there was an issue as to whether or not the information in question was merely a defect or gap in the  information provided by the applicant, counsel for the applicant contended that any tension between decisions such as MZWPK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1256 and SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1138 on the one hand and the decision of Allsop J in SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200 on the other hand had been relevantly resolved in SZEEU Allsop J, with whom Weinberg J agreed (at [169]), discussed the scope of s.424A at [221] adhering to and adopting what he had stated in SZECF as follows:

   “I do not regard the operation of s.424A(1) as limited to circumstances where the information imports some positive factual findings. To the extent that cases such as MZWPK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1254 at [14] and SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1138 at [19] – [23] say as much, in my respectful view, they limit too narrowly the operation of the section. That, of course, is one way that the information is a part of the reason. Another would be the inconsistency between the information and what was now being said. If the Tribunal considers that inconsistency relevant to the assessment of the claims, it may be that the information would be part of the reason. If a Tribunal says that it does not believe an applicant for reasons that can be seen to include the fact that one thing was said in the prior statement and another at the hearing, or the fact that if what is now being asserted at the hearing is true it would have been in the prior statement in that form, the information would be part of the reason. The information is the knowledge imparted to the Tribunal of a prior statement in a particular form. The significance given to it by considering it in the light of evidence is the product of mental processes. The significance in those mental processes are not information, but rather, are why the information is relevant for s 424A(1)(b).”

   His Honour went on to suggest (at [223]) that statements on a visa application form constituted information that a document in that form was provided and that such information may have relevance:

   “for all sorts of reasons.  Such relevance is not limited to whether the information leads to a positive factual finding based on its terms.  It may be relevant because it plays some part (as here) in the conclusion as to the truthfulness of the applicant”.

8. Counsel for the respondent submitted that the Tribunal was under no obligation to put such information to the applicant for comment because the applicant had given the information to the Tribunal for the purposes of the review within s.424A(3)(b) when he invited the Tribunal to have regard to his original claims or case (see SZDMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1034 and SZEAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1394). In his review application the applicant stated that the “decision-maker admits that he was unable to research my claims”.  This was said to be an unambiguous reference to the claims to be a refugee as previously put to the delegate.  Reference was also made to the decision of Gyles J in SZDMJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1034 at [5] in which his Honour accepted an argument that the applicant had republished his original claims to the Tribunal and relied upon them for the purposes of review by the Tribunal in making a statutory declaration which consisted of a:

   “critical examination of the reasons given for the decision by the delegate of the Minister to refuse the appellant’s application for a visa.  In the course of that declaration the appellant referred several times to the claims that he had originally made and which were the subject of the delegate’s decision.  Those claims were those set out in the statutory declaration provided with and incorporated in the original application and to which the Tribunal made reference”.

1. It was contended that in his review application the applicant clearly republished and relied on his original claims and that in asking the Tribunal to consider his case that could only sensibly refer to the information he put to the delegate as well as fresh information put to the Tribunal. In support of this proposition, reference was also made to the post-hearing submission provided to the Tribunal by the applicant referring to the absence of state protection and the area from which he came in Ghana, which was said to add further details in relation to his claims. It was acknowledged that unless the applicant put forward such information and republished the claims to the Tribunal there would be “a difficulty” under s.424A.

2. In his submissions after SZEEU Mr Lloyd for the respondent relied on M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131 in support of the contention that the applicant adopted the information in the protection visa application in his review application.  It was contended that nothing in SZEEU was inconsistent with or overruled that line of cases and that the decision in NAZY could be distinguished because it related to a mere adoption at a hearing and not to what occurred in SZDMJ and M55 where in the review application or in other communications to the Tribunal an applicant embraced or referred the Tribunal to claims previously made. 

3. It is clear that there were inconsistencies between the information the applicant provided to the Department and his account to the Tribunal of the problems he had experienced prior to departure from Ghana (“the earlier problems information”), the different accounts about when Nana Obour went on the run (the “on the run” information) and also about whether and when the new king of Tafo had been enstooled (the “vacancy information”) which the Tribunal took into account. 

4. The Tribunal referred to the applicant’s account in “written submissions to the Department”. The Court Book contains no “written submission to the Department” other than what is contained in the protection visa application and in a response from the migration agent dated 18 June 2002 to concerns raised by the Department in a letter of 16 May 2002. It is not disputed that the information described as provided in “written submissions” is information contained in the protection visa application or in such response. In response to the question in the visa application “why did you leave that country” the applicant referred to problems experienced in Ghana such as harassment and threats to their lives by Nana Obour’s opponents, to the fact that Nana Obour was “on the run” and to the “newly-enstooled King of Tafo”. The indication that the previous occupant of this position (described as a chief of Tufu (sic)) had died recently is contained in the agent’s submission of 18 June 2002. The Tribunal had regard to this information and its inconsistency with the information about such matters provided at the hearing. The information in question is within s.424A(1) as part of the reason for the decision.

5. Hence it is necessary to consider whether s.424A(3)(b) applies, in particular whether the applicant republished or otherwise gave the information in question to the Tribunal. In the review application the applicant stated that his reasons for making the application were as follows:

   “(1) The fact that Ghana is a constitutional democracy does not mean that there is no abuse of human rights or torture or persecution in Ghana.

   (2) The decision maker admits that he was unable to research my claims.  He should therefore have interviewed me before proceeding to refuse my application.

   (3) I believe that my life would be at risk if I return to Ghana Chieftancy disputes in Ghana usually result in death.

   (4) My profession as a mechanic is not inconsistent with my membership of a cultural group.  It is true that the group was invited to Fiji to perform.

   (5) My claims are plausible and I am unwilling to return to Ghana because of my fear of persecution.

6. In a statement provided with the response to hearing invitation the applicant asked the Tribunal to consider, for reasons he gave, that state protection for life threatening cases like his was ‘very little’.  He sought to “remind” the Tribunal that his case happened in a particular part of Ghana and also asked the Tribunal to consider his case because he had lost his parents and the group was “no more”. 

7. After the hearing the Tribunal put certain independent evidence to the applicant for comment.  In response his adviser stated that the four applicants stood by their claims of involvement in the chieftancy dispute.  A handwritten unsigned statement addressed events in Ghana and general concerns of the Tribunal about the applicant’s evidence at the hearing.  Individual statements from each applicant and a signed joint statement about the faxed information were annexed.  In his statement the applicant said that Nana Obour had more or less adopted him and provided an explanation for his fears, jitters and the pressure he was under at the hearing. 

8. Both M55 and SZDMJ can be distinguished on their facts.  Contrary to the position in M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131, the applicant did not (either in his review application or in written submissions) state that the detail of his claims was set out in material provided to the Department including his protection visa application. It cannot be said that he “relied expressly on the terms of his protection visa application” as occurred in M55.  (See M55 at [25]).

9. In SZDMJ v Minister for Immigration & Multicultural  Indigenous Affairs [2005] FCA 1034 Conti J found that where a statutory declaration provided to the Tribunal consisted of a critical examination of the delegate’s reasons and contained several references to the applicant’s original claims (which were said (at [5]) to be those set out in a statutory declaration attached to the original visa application, the appellant “clearly republished the original claims to the Tribunal and relied on them for the purposes of the review by the Tribunal” (at [6]) and that such information was given to the Tribunal by the appellant for the purposes of the application within s.424A(3)(b). However the content of the statutory declaration provided to the Tribunal in that instance is not set out in SZDMJ.  There is, in any event, no critical examination of the delegate’s reasons in the review application in this case.  The references to the applicant’s claims are in general terms unrelated to the specific items of information in issue under this ground. 

10. On the day on which this matter was first listed for judgment (25 May 2006) the Court received a facsimile letter from the solicitors for the respondent drawing the Court’s attention to the matter of SZCJY v Minister for Immigration & Multicultural & Indigenous Affairs (which, it was suggested, may have some hearing on the outcome of the case in relation to s.424A(3)(b)).  SZCJY was a decision of Tamberlin J sitting as the Full Court of the Federal Court.  As the written reasons were not yet available I did not deliver judgment but allowed time for the parties to make written submissions.  On 16 June 2006 the solicitors for the respondent provided a written submission advising that the reason for judgment in SZCJY v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 556 had been published and simply stating “the Respondent relies upon paragraphs [3] – [6]”. The applicant submitted that SZCJY was clearly distinguishable, that the law had already been thoroughly canvassed by both Counsel and that nothing turned on the case. 

11. In SZCJY Tamberlin J considered an issue raised by counsel for the respondent in that case about the application of s.424A(3)(b) to material in the file before the Department. Tamberlin J found (at [4]) that in the application for review to the Tribunal, under the heading “Your reasons for making this application” there was:

    “… an express reference and request by the appellant for reference to be made to a specific DIMA file, namely, CLF2003/22764.  The applicant there stated that:

    ‘I strongly believe that the decision made on the above file is incorrect as all the material facts on the record has not been considered and is liable to be set aside.’”

12. His Honour found at [5] that in making this statement the applicant had incorporated all the material in the Departmental file in his application to the Tribunal “by requesting that the RRT refer to the file reference and all the contents in the file.” 

13. Tamberlin J also stated at [6] that he was not persuaded that a number of recent Full Court cases referred to by counsel (including SZEEU) varied the position from that taken in NAZY or in M55 and found no basis for a contention that there had been a breach of s.424A.

14. As Rares J stated in SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435 at [42], each case depends on its own facts and not every applicant for review should be treated as asking the Tribunal to review all previously put to a delegate (and in that sense giving the information consisting of and referred to in the delegate’s decision to the Tribunal).

15. I am satisfied that, as submitted by counsel for the applicant, SZCJY is distinguishable on its facts.  In this case there was no express reference to a Departmental file, no request that the Tribunal refer to a specific file and its contents, nor any claim that all the material facts on the record had not been considered.  While the application for review took issue with aspects of the delegate’s decision, the applicant did not refer to his claims to the Department in a manner which constituted incorporation of all such material in his review application.

16. I note that in SZCJY at [6] Tamberlin J expressed the view that recent cases, including SZEEU, did not vary the position from that taken in NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744 and M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131. As indicated above, the circumstances in this case differ from those considered in M55.  NAZY (in which an “express” adoption was required by Jacobson J) does not advance the respondent’s contentions. 

17. In the particular circumstances of this case, in the absence of any express reference either to all of the applicant’s claims to the Department or to the particular information in issue under this ground (the “earlier problems”, “on the run” and “vacancy” information), it cannot be said that there was a republication or incorporation of the material relating to such matters.  Even taking a broad view of the effect of the statements in the review application, the fact that the applicant claimed generally that his claims were plausible cannot be said to constitute a critical examination of the delegate’s reasons.  There is no reference to the detailed aspects of the applicant’s claims beyond his involvement in a cultural group and chieftancy dispute (cf SZEAQ v Minister for Immigration & Multicultural & Indigenous [2005] FMCA 1394). Neither the review application or the applicant’s submissions to the Tribunal repeated the content of his protection visa application and submissions (cf SZBNK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 998). Nor did he refer to his protection visa application or to prior explanations or statements (cf SZEIE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 987 and SZGGT v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 435).

18. There is no suggestion that the applicant gave any of the information in question to the Tribunal during the hearing.  In these circumstances I am not satisfied that the applicant gave the particular information in his protection visa application and submission to the Department to the Tribunal. 

19. Hence the s.424A obligation arose. It was not met. The failure to comply with s.424A constitutes a jurisdictional error.

Whether Tribunal failed to exercise jurisdiction

1. The next ground relied upon in the further amended application is that the Tribunal failed to exercise jurisdiction in respect of the applicant’s claims for a number of reasons.  First it is said that it incorrectly characterised the applicant’s claim to protection as being based on his involvement in a chieftancy dispute, when his claim was that he had a well-founded fear of persecution due to his involvement as a member of a successful named cultural performance group based within the Tafo traditional area of Ghana in circumstances where that was patronised by and inextricably connected with Nana Kwaku Obour a local tribal leader.  This was said to be a claim based on a particular social group and imputed political opinion.

2. Secondly it was contended that the Tribunal misconstrued the applicant’s application as being on the basis that he had supported Nana Obour and his nephew and had been involved in a campaign to support Nana Obour and his nephew for the latter’s installation as Tafohene.  It was contended that by reason of the Tribunal’s misconception of the applicant’s true claim it failed or it refused to exercise the jurisdiction conferred on it by the Act. 

3. Further it was submitted that the Tribunal misconstrued the applicant’s “sur place” claim arising from the material contained in the facsimile received by the Tribunal on 28 August 2002 in that the Tribunal only considered whether the material supported or did not support the main claims advanced by the applicant in his principal application and did not consider the separate issue of an additional sur place claim.

4. Finally in relation to this ground it was contended that the Tribunal misconstrued the applicant’s sur place claim in that it considered whether the material contained in the facsimile revealed an intention by the authors to force the applicant to return to Ghana and did not consider whether the fact of the letters and their contents indicated that the applicant had a legitimate fear of persecution as a result of matters arising whilst he had been outside of Ghana. 

5. In written submissions it was contended briefly that it was clearly established that a failure to consider the applicant’s claim or to correctly characterise the claim would lead the Tribunal into jurisdictional error (Dranichnikovv Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389). Counsel for the applicant contended that the Tribunal had erred in expressing the view that the applicant’s claims could be characterised as involvement in a chieftancy dispute and in proceeding on the basis that this was the only basis for the applicant’s claim for protection. It was contended that this misconceived the true nature of the applicant’s case, which was always based on his membership of a cultural group, a dance group associated with one participant in the chieftancy dispute.

6. It was suggested that the mere fact that the Tribunal had referred to a direct or indirect involvement in the chieftancy dispute did not indicate that it had understood the applicant’s claim, because when the reasons were read as a whole the Tribunal clearly expected the applicant to exhibit  the level of comprehension of the chieftancy dispute of someone “so involved in a campaign to assist a candidate” (CB 131) whereas the applicant never claimed to be such a person, but, on the contrary, made it clear that he was just a dancer who had become caught up in a chieftancy dispute by association. 

7. It was contended that in taking this approach the Tribunal had failed to consider the claim made by the applicant’s adviser at the hearing on the basis of membership of a particular social group, namely those people under the sponsorship of the chief. 

8. However, as counsel for the respondent contended, the applicant’s claim was that because of his involvement in the particular cultural group and his other association with Nana Obour he was identified as a supporter of Nana Obour not simply someone under the sponsorship of the Chief.  It has not been established that the Tribunal misunderstood any aspect of the applicant’s claims or failed to deal with them in a manner constituting jurisdictional error. 

9. Further, given the Tribunal conclusions in relation to the credibility of the applicant’s claims there is no relevant difference whether the basis for the claims is characterised as a claim based on membership of a particular social group or as or imputed political opinion.  That the Tribunal understood the applicant’s claims is consistent with what occurred in the Tribunal hearing.  The Tribunal summarised the applicant’s claims as follows:

   TRIBUNAL MEMBER:  …Correct me if I am wrong … but essentially what your claim is that sometime in the past this position of Tafohene became vacant; there has been a long-term ongoing dispute; um … sometime in 2001 the dispute rose up again; nothing really happened to you apart from perhaps once in 1998 until after you left the country when you heard that there were threats against you so you don’t want to go back. I know that’s very brief but is that essentially what you are saying now today?

   APPLICANTS:  Yeah.

10. While it is not clear which applicant responded, there was no suggestion from the applicant in the hearing or in post-hearing submissions that the Tribunal misconstrued the basis for his claim.  Rather the Tribunal understood the claim and rejected it.  No error is disclosed in the manner contended. 

11. The applicant also argued that while the Tribunal dealt with the documents of 28 August 2002 it appeared to be looking at them to determine whether they somehow overcame its conclusion that the applicant had concocted his principal claim about involvement in the chieftancy dispute.  It was submitted that the Tribunal did not appear to have considered separately whether the document indicated that a sur place to protection existed.  It was contended that by focusing on whether the documents were designed to secure the return of the applicant to Ghana, the Tribunal failed to ask whether the central question of whether the documents (coming into existence as they did once the applicant had left the country) revealed that the applicant had a well-founded fear of persecution if he were to return to Ghana.  It was suggested that the documents were clearly probative of issues beyond whether they would force the applicant to return to Ghana.  The documents were said to demonstrate that the applicant’s presence in Australia was known in Ghana as while they had been faxed from Australia they had been sealed in Ghana and the Tribunal did not find that the documents were not authentic. 

12. It has been established that the Tribunal misconstrued the applicant’s claims in this respect.  As discussed above, the applicant did not assert that he was a refugee based on significant changes or events in Ghana since his departure.  The documents said to be from Ghana did not in fact refer to him – his name appeared only in the covering letter.  The Tribunal did not misunderstand or mischaracterise the applicant’s submissions on the significance of the documents faxed to the Tribunal in August 2002, but just did not accept that they had that significance. 

Irrelevant considerations and other grounds

1. Further, and in the alternative, it was contended for the applicant, without elaboration in submissions, that the Tribunal took into account irrelevant considerations, namely the applicant’s lack of direct knowledge of the history of the chieftancy dispute involving Nana Obour and/or his nephew and a report by the Department of Foreign Affairs and Trade dated 12 August 1995.  It has not been established that the Tribunal was bound to disregard this material.  It was open to the Tribunal to have regard to the applicant’s evidence in relation to past chieftancy and particular items of country information. 

1. In the alternative it was contended that the Tribunal failed to take into account relevant considerations being the applicant’s sur place claim arising by reason of the facsimile of 28 August 2002 and a paper by Dr Ray and in particular country information in relation to the fact that chieftancy disputes may become violent and chiefs may face the possibility of a daily challenge to their political legitimacy and that disputes may go through peaceful or violent phases or a combination. 

2. The Tribunal was not bound to take into account particular country information and in any event the Tribunal did have regard to the report of Dr Ray as well as to other independent evidence on similar topics in reaching its understanding of the situation in Ghana.  The weight to be given to particular items of country information was a matter for the Tribunal.  It addressed the applicant’s claims about the facsimile of

   
   

   28 August 2002 as discussed above. 

3. The final ground in the further amended application is that the Tribunal failed to exercise the jurisdiction conferred on it by the Act, in that it did not consider the substance of the applicant’s claims.  This is a rephrasing of the grounds referred to above.  For the reasons discussed above it is not established. 

Discretion

1. Finally counsel for the respondent contended that even if the Tribunal did fall into jurisdictional error there was an unexplained delay in bringing the present proceedings which were significantly out of time and that this delay was sufficient to justify an exercise of the discretion to refuse relief. 

2. The Tribunal handed down its decision on 5 November 2003.  The application to this Court was filed on 13 August 2004.  The respondent raised the issue of delay in written submissions.  The applicant swore an affidavit on 20 March 2006 in which he addressed the delay.  The affidavit was filed after the time allowed.  In correspondence between the solicitors for the parties provided to the Court it was foreshadowed that the respondent would object to leave being granted to admit the affidavit into evidence for reasons of relevance, hearsay and on the basis that the affidavit was bad in form.  The respondent admitted certain matters in relation to relevant dates, but indicated that if the applicant intended to rely on his affidavit to establish facts beyond the dates of the Tribunal and judicial review applications, that the applicant applied to the Minister to exercise discretion under s.417 on 1 December 2003 and that the Minister refused to exercise the power on 6 August 2004, he would be required for cross-examination (the hearing having been adjourned to a date when an interpreter could be available for that purpose.)  Subsequently the solicitors for the respondent advised that the applicant was not required for cross-examination.

3. When the hearing resumed, objections to the admissibility of a large part of the affidavit were maintained on the basis that the Court should rule on them in the course of the judgment.  In particular it was contended that there was authority that a delay arising from a s.417 application does not excuse delay in seeking judicial review and on this basis that the explanations in the affidavit in this respect were not relevant.  For reasons given below I do not accept that the making of s.417 application is not something that cannot be taken into as an explanation for delay.  Whether or not the Court finds a proferred explanation to be an acceptable explanation in determining not to withhold relief on discretionary grounds, the fact that the respondent submits that the explanation is not an acceptable excuse is not such as to render any part of the applicant’s affidavit evidence as to what occurred after the decision, and before the judicial review application, irrelevant.  However the last paragraph of the affidavit does not provide such an explanation.  Rather it makes a claim to fear harm if the applicant is returned to Ghana and seeks relief from the Court.  Strictly speaking it is not “relevant” in judicial review proceedings in which merits review is not available.  I uphold the respondent’s objection on the basis of relevance to the last paragraph of the affidavit. 

4. While foreshadowing that there would be objections to hearsay evidence, in oral submissions the respondent’s objections were otherwise confined to form.  It was contended generally that paragraphs 3, 4, 5, 9, 11 and 14 of the affidavit were not in proper form as they did not sufficiently describe what was said and in effect just gave the conclusion of what was said.  Counsel for the applicant submitted that the Court should exercise its discretion to admit statements of fact by the applicant as part of the background.  I agree. 

5. In any event the respondent admits the critical facts attested to in the applicant’s affidavit, that is, that shortly after the Tribunal decision was handed down the applicant applied to the Minister to exercise discretion under s.417 of the Act, that the decision not to consider exercising the power was notified to him by letter dated 6 August 2004 and that the applicant filed the application in this Court on 13 August 2004.  These admitted facts of themselves raise the issue of whether the circumstances are such that relief should be refused or whether in the particular circumstances of this case an acceptable explanation for the applicant’s delay in seeking judicial review has been provided. 

6. Counsel for the respondent relied on a number of authorities in support of the proposition that a s.417 application would not excuse the delay and that the Court should exercise its discretion to withhold relief. 

7. Unlike the circumstances before this Court, Das v Minister for Immigration & Multicultural Affairs [2004] FCA 489 did not relate to the issue of whether the discretion to withhold relief should be exercised where jurisdictional error was established and where statutory time limits are not applicable. Rather it were considered to whether the periods for application for writs of mandamus and certiorari prescribed in the High Court Rules should be extended (as to which see generally Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at [13] – [16] per McHugh J). It was in that context that Sundberg J considered whether the case was exceptional and the reason for delay, referring, at [8] – [10], to earlier cases in which the view had been expressed that making a s.417 application did not provide an adequate explanation for delay where an extension of the time in which to make an application was sought. His Honour found at [11] that:

   “The making of the s.417 applications are not a special circumstance excusing the delay and warranting an enlargement of time in circumstances where the making of the applications implicitly accepted the Tribunal’s decision would not be challenged.”

   In Das the applicant had also discontinued an earlier judicial review application, which the court said was a positive election not to challenge it.  Importantly in Das Sundberg J also considered the applicant’s prospects of success, finding there to be no real prospect.  In contrast in this case a jurisdictional error is apparent. 

8. Reference was also made to Hassen v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1036. That case also involved an application for enlargement of time. A s.417 application was not accepted as a reasonable explanation for a 21 month delay where there was no reasonably arguable case for judicial review. Again there is a critical difference. This is not an application for an extension time and a jurisdictional error has been established.

9. In M162 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1146 Goldberg J considered an application for an extension of time in circumstances where there was a six year delay. His Honour expressed the view at [22] that the s.417 application was “only explicable” on the basis that the applicants were not challenging the correctness of the Tribunal decision. However, he pointed out, at [23], that the factors and principles explained in Marks “were not rigid rules to be applied inflexibly.  Rather, they are a guide or a set of beacons to be taken into account in determining how a judicial discretion should be exercised”.  Indeed Goldberg J found that there were exceptional circumstances consisting of the consequences of what might happen to the applicants if they returned to their home country and the nature and consequences of the jurisdictional error relied upon.  His Honour noted that the issue of delay was relevant not only in relation to the extension of time application before him, but also in relation to the application for the issue of writ of prohibition as the exercise of the discretion to grant relief pursuant to s.75(v) of the Constitution Act was discretionary.  As pointed out by Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 106 – 107 there are two separate questions, first whether the officers of the Commonwealth acted in want of or in excess of jurisdiction, and secondly whether prohibition should not issue “having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances.”

10. In M162 of 2002 Goldberg J stood the application for an extension of time in which to make an application for writs of certiorari and mandamus over to the hearing of the substantive application. At that time (see [2004] FCA 23), unlike the situation in this case, his Honour found no jurisdictional error and hence that it was not necessary to address the extent to which delay was a disqualifying factor (see [23]).

11. Finally the respondent drew the Court’s attention to M212 of 2003 v Refugee Review Tribunal [2004] FCAFC 293 in which the Full Court considered a decision at first instance in which the primary judge had found it unnecessary to resolve the issue of whether there was any excuse for the applicant’s delay in seeking relief (in the context of considering whether there should be an enlargement of time) as there was no arguable case disclosed. On appeal the Full Court set out the principles in relation to extension of time in relation to an application made to the High Court. In that case the application had been made over three years after the Tribunal decision. The court noted the absence of any “real explanation”, for the delay, referred to authorities which had not regarded a s.417 application as an adequate explanation but also, importantly, found the applicant’s prospects of success on appeal to be very poor.

12. This case is not an application for an extension of time.  Rather the issue is whether, even though the Tribunal fell into jurisdictional error, the application should be dismissed on discretionary grounds.  As the decision is affected by jurisdictional error it is not a ‘privative clause decision’ and the time limit in s.477(1) as it stood at the time of application does not apply.  A similar situation was considered by Wilcox J in Gararth v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 316. His Honour noted that in proceedings such as these the applicant does not required leave to commence the proceedings (at [60] – [61]). He considered at [62] whether there was “excessive, unexplained delay” such as to justify a court refusing constitutional relief “even to an applicant who has otherwise made out a good case”.  His Honour stated:

    “In determining, for this purpose, what amount of delay should be considered excessive, it will always be necessary for the court to examine all of the circumstances of the case.  The longer the delay, the more difficult it will be for an applicant to resist a respondent’s invocation of the court’s discretion.  Although there is not, and should not be, a rigid rule, a delay of five years would ordinarily be extremely difficult to excuse.  So the result in S58 is not surprising.  Similarly, in relation to Marks.  Although the delay in that case was less (17 months), that delay had to be examined in the context that it was a delay in litigation concerning termination of employment, an area in which expedition has always been thought particularly important, and the delay was being measured against the particular times specified by the High Court Rules.”

13. Wilcox J found that the delay in Gararth of a little under two years called for explanation, but found, in circumstances where the appellants had applied to the Minister under s.351 of the Act (the equivalent of s.417 in relation to the decisions of the Migration Review Tribunal):

    “In the present case, there is an explanation.  Fifteen days after the MRT’s decision, the appellants applied to the Minister under s.351 of the Act.  That was not an application at law; it was not capable of invalidating the MRT’s decision.  However, it was a clear indication to the Minister, and his advisers, that the appellants were unwilling to accept the MRT’s decision as the final resolution of their rights.  It was not unreasonable for the appellants to hold off any legal challenge to the MRT decision until they had ascertained whether the Minister would be prepared to override the decision pursuant to s.351.”

14. In all the circumstances his Honour found that it would not be appropriate to refuse discretionary relief. 

15. Similarly in this case, shortly after the Tribunal decision was notified the applicant made a s.417 application.  In the particular circumstances of this case I prefer the view that this was an indication, not that the applicant was not challenging the correctness of the decision, but that he was “unwilling to accept the Tribunal decision as the final resolution of his rights”.  After that application the applicant, not unreasonably, waited for a response.  Meanwhile he became aware of the possibility of pro bono legal assistance.  He sought judicial review very soon after being notified that he had failed in his s.417 application.  The ‘delay’ from the time of notification of the Tribunal decision to the application to this Court was nine months, eight months of which was the time it took for a response from the Minister. 

16. Moreover, importantly, a jurisdictional error is established.  The applicant is an applicant for a protection visa.  Without in any way determining the merits of his claim, nonetheless (as Goldberg J pointed out in M162 of 2002) it is relevant to bear in mind the consequences of what might happen to the applicant if he returned home (based on the nature of his claim which is a claim to fear persecution). Moreover the jurisdictional error established is a failure to comply with s.424A of the Act which is “a statutory obligation accord procedural fairness” (SAAP at [77] per McHugh J). A failure to comply with such a provision “goes to the heart of the decision-making process” [ibid].  (Also see SAAP at [83] – [84] per McHugh J suggesting that, as a breach of s.424A was a failure to observe fair decision-making procedures, the bearing of the breach upon the ultimate decision “should not itself determine whether the constitutional writs of certiorari and mandamus should be granted”, Kirby J at [174] – [176] and Hayne J at [211]).  In all the circumstances I am not satisfied that the conduct of the applicant is inconsistent with the application for relief or that it otherwise warrants a refusal of relief.  The application should be remitted to the Tribunal for redetermination according to law. 

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  11 July 2006