SZEEM v MIMIA
[2005] FMCA 27
•27 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEEM v MINISTER FOR IMMIGRATION | [2005] FMCA 27 |
| MIGRATION – RRT affirming cancellation of protection visa – alleged false statement that applicant feared persecution – powers of Tribunal on review – whether confined by particulars of falsity in s.107 notice – applicant entitled to relief from Court. |
Migration Act 1958 (Cth), ss.101, 107, 107A, 107(1)(a), 108, 108(b), 109, 109(1)(a), 110, 111, 112, 129, 411(1)(d), 412, 414, 415, 479, Part 8
Judiciary Act 1903 (Cth), s.39B
Adams v Yung (1998) 83 FCR 248
Applicants S134/2002 (2003) 211 CLR 441
Australian Securities and Investments Commission v Donald (2003) 77 ALD 449
Etherton v Public Service Board [1983] 3 NSWLR 297
Gribbles Pathology (Vic) Pty Ltd v Cassidy (2002) 122 FCR 78
Jankovic v Minister for Immigration (1995) 56 FCR 474
Kumaraperu v Minister for Immigration (1998) 88 FCR 381
NAAA v Minister for Immigration & Multicultural Affairs (2002) 117 FCR 287
Nguyen v Minister for Immigration (1998) 88 FCR 206
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167
Re Donald and ASIC (2001) 64 ALD 717
Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Re Shortis and Secretary, Department of Community Services and Health (1991) 13 AAR 544
Re Uniway Pty Ltd and Chief Executive Officer of Customs (1999) 29 AAR 289
Re Western Australian International Education Marketing Group (Inc) and Australian Trade Commission (2003) 77 ALD 192
Saleem v Minister for Immigration [2004] FCA 234
Samad v District Court of NSW (2002) 209 CLR 140
SHJB v Minister for Immigration [2003] FCAFC 303
WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511
X v Commonwealth (2000) 200 CLR 177
Yung v Adams (1997) 80 FCR 453
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248
| Applicant: | SZEEM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2546 of 2004 |
| Delivered on: | 27 January 2005 |
| Delivered at: | Sydney |
| Hearing date: | 13 January 2005 |
| Judgment of: | Smith FM |
REPRESENTATION
| Counsel for the Applicant: | Mr L J Karp |
| Solicitors for the Applicant: | Simon Jeans & Associates |
| Counsel for the Respondent: | Mr G T Johnson |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Direct the parties to file short minutes of orders giving effect to these reasons.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2546 of 2004
| SZEEM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This application for judicial review of a decision of the Refugee Review Tribunal concerns the powers of the Tribunal when reviewing the cancellation of a protection visa under ss.108 and 109 of the Act. Put shortly, the question is whether the Tribunal has power to affirm a decision which found that the visa holder’s original statement that he feared persecution was false, only if the Tribunal is satisfied of the falsity of the statement upon a particular which was put to the visa holder in a s.107 notice initiating the cancellation procedure. Counsel for the parties have taken me to judgments of the Federal Court which may have left this point undecided. In the present case, it is argued by the applicant’s counsel, and I accept, that the Tribunal’s finding that the visa holder’s original claim to fear persecution was false was partly based upon matters which had not been particularised in the notice.
The background to the case is described by the Tribunal in its reasons, and I need only indicate the context of the present application.
The applicant is the son of Palestinian refugees who became Jordanian citizens. He was well educated in Jordan and had employment in a family business. In 1997 he came to Australia on a student’s visa and soon lodged an application for a protection visa. In a lengthy statutory declaration he described an association with members of an Islamic Liberation Party and encounters with Jordanian intelligence authorities, culminating in several months of detention and torture during 1995. His declaration concluded:
101. I fear that if I am forced to return to Jordan I will be arrested again because I have been labelled as a Liberation Party member. I know that I have been put on the Intelligence blacklist. I fear that I will be arrested during a round up as a known party member and that I can then be made a scapegoat for some anti-government events.
102. I fear that if I am arrested again my treatment will only be worse that what I have already experienced. I fear that I will be tortured again.
A delegate of the Minister accepted his claims and on 1 October 1998 granted a Protection Visa (866). The delegate’s conclusion was:
Given the applicant’s relatively high profile and active role with the Liberation Party, I consider that he would be at risk of harm from the authorities if he were to return. I accept that he has already faced persecution at the hands of the authorities. I cannot rule out his claim that he would face ongoing harassment from the authorities if he were to return to Jordan.
The letter advising the applicant of the visa noted that he had acquired the rights and responsibilities of “other permanent residents of Australia” and encouraged him to seek citizenship after two years. It told him that “you are allowed to travel outside Australia and re-enter for a period of 5 years.” It also warned him that “it is not recommended that you use a passport or travel document issued to you by your country of nationality as this can be seen as a voluntary re-availment by you of the protection of that country.”
On 29 January 2002 a delegate of the Minister sent to the applicant a letter headed “Notice of Intention to Consider Cancelling a visa under s 109 of the Migration Act 1958”, which alleged that the applicant’s “claims of persecution by the Government of Jordan from 1995 to 1997 and fear of further persecution if returned to Jordan may have been false”. It gave two particulars upon which this was based: (i) “information that you have may have worked for the General Intelligence Directorate” in Jordan; and (ii) Departmental records showing that he had travelled back to Jordan on at least three occasions since being granted protection. I shall set out in full the relevant part of the letter:
It has come to the Department’s attention that you may have not complied with section 101 of the Migration Act 1958, which states:
Section 101. Visa applications to be correct
101.A non-citizen must fill in his or her application form in such a way that:
(a)all questions on it are answered; and
(b) no incorrect answers are given.
because the Department has received information that you have provided false refugee claims lodged on 16 December 1997, on the basis of which you were granted a protection visa on 30 September 1998.
You have claimed in your statutory declaration dated 12 December 1997 that:
·you have been an active member of Hizb Al-Tahrir, the Islamic Liberation Party opposed to the government of King Hussein of Jordan, during your university years from 1990 to 1994 and have been persecuted by reason of your membership of such political party;
·after your graduation in 1994, you continued to be involved with the Islamic Liberation party until 1997, which also resulted in torture and persecution;
·in 1997, you were able to obtain a Certificate of Good Behaviour from the Intelligence service to enable you to leave Jordan for Australia as a student; and
·you have been put on the Intelligence blacklist that you feared worse persecution if forced to return to Jordan.
However the Department has received information that you may have worked for the General Intelligence Directorate, the Intelligence service in Jordan known as the “Mukhabarat”, from 1995 to 1997. As the information indicates that you may have worked for the Government of Jordan from 1995 to 1997, your claims of persecution by the Government of Jordan from 1995 to 1997 and fear of further persecution if returned to Jordan may have been false.
Departmental records also show that you have travelled back to Jordan on at least three occasions since you were granted protection by Australia in 1998. During your visit to Jordan from 9 December 1999 to 15 February 2000, you inquired at the Australian Embassy in Amman, Jordan about spouse sponsorship. On your next visit to Jordan from 30 May 2000 to 22 June 2000, you got married and subsequently lodged a spouse migration application. Most recently, you departed Australia on 30 November 2001 and upon your return to Australia on 12 January 2002, you have indicated in your passenger card that you have spent most of your time abroad in Jordan. Evidence of your return to your country of claimed persecution may indicate that your refugee claims may have been false and/or you may have re-availed yourself of the protection of your country of nationality.
If you did not comply with section 101, your visa may be cancelled. It does not matter whether you deliberately or inadvertently did not comply.
The Migration Act 1958 gives you the opportunity to comment on these possible grounds for cancellation and to give a written answer why your visa should not be cancelled. Your answer should state:
·why you think you have complied, of why you have not complied with Section 101; and
·why you think your visa should not be cancelled (even if your think you have complied).
You must provide your response within 14 days, ie by the close of business on 19 February 2002. If you respond within the specified time, the issue of cancellation will then be considered taking into account your response.
The letter then referred to the relevant statutory provisions, which the delegate described as setting up a “two-step process” in which compliance with s.101 would first be decided, and, if this was decided adversely, the delegate would then consider the prescribed discretionary factors bearing on whether to cancel the visa.
The applicant responded in a submission presented by a migration agent on 18 February 2002. He refuted the claim that he had worked for the General Intelligence Directorate. He also explained several family circumstances which had compelled him to risk making visits to Lebanon, and how he had avoided official notice by bribery. It is unnecessary for me to detail the material he presented.
By letter dated 15 March 2002, the delegate responded to a request for further particulars of the allegation concerning the GID, and gave some clarification of the Department’s information concerning the two matters particularised. I do not read the letter as seeking to raise any additional basis for finding the “alleged non-compliance”. There was discussion before me whether the letter also extended the second particular (the return visits to Jordan) so as to include the fact that at least one of the visits involved the use of a renewed Jordanian passport, and I shall consider this issue further below. The letter also suggested that a possible inconsistency in the applicant’s statements about his employment history in Jordan might “be used as evidence in the assessment” of the applicant’s case.
On 22 April 2002, the applicant’s agent presented further material seeking to corroborate his response in relation to the two matters particularised, and to clarify his employment history.
On 12 August 2003, the delegate made a decision to cancel the visa. He concluded that there was non-compliance with s.101 because the applicant’s claims in his visa application of being wanted by Jordanian intelligence and fear of further persecution if returned to Jordan were untrue. He based this conclusion upon the two matters particularised in the s.107 Notice, especially by making an adverse assessment of the applicant’s three return visits to Jordan. It is unnecessary to analyse his reasoning about this.
The applicant then appealed to the Refugee Review Tribunal on 8 September 2003, and in the course of its proceedings presented further submissions and material in response to the delegate’s reasoning. He also attended a hearing on 15 April 2004 to which he was invited by the Tribunal. On 20 July 2004 the Tribunal handed down a decision affirming the delegate’s cancellation decision. The present application for judicial review was then filed promptly, on 16 August 2004.
It is unnecessary for me to detail the content of the applicant’s submissions to the Tribunal and the procedures followed by the Tribunal. These are described by the Tribunal in its reasons. It is apparent that at the hearing the Tribunal explored with the applicant numerous aspects of his original refugee claims and the material he had presented to the Department at that time and subsequently. Many of its concerns were distinct from the two matters particularised in the s.107 Notice and upon which the delegate had based his cancellation decision. As I shall describe below, the Tribunal made adverse findings upon these concerns and relied upon its totality of adverse findings both when deciding that there was a non-compliance under s.101, and also when assessing discretionary considerations.
In submissions to me, the applicant attacked the Tribunal’s reliance upon additional matters at the “first step” – when concluding that he had falsely claimed a fear of persecution. His argument is not that he was denied procedural fairness by not being given an adequate opportunity to respond to the Tribunal’s new concerns in the course of the Tribunal’s proceedings. Rather, it is that as a matter of law, the Tribunal’s powers on review did not permit it to take them into account when reaching the required satisfaction as to a non-compliance. It is argued that, by taking them into account in its decision on the “first step”, the Tribunal misconceived its power and constructively failed to exercise its statutory jurisdiction.
I shall examine the legal basis for this contention, before examining the Tribunal’s reasoning more closely.
The relevant provisions of the Act controlling the Minister’s first instance decision are:
107 Notice of incorrect applications
(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non compliance:
(A) shows that there was compliance; and
(B) in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non compliance—shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non compliance:
(A) give reasons for the non compliance; and
(B) shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii) if the holder gives the Minister a written response within that period—when the response is given; or
(iii) otherwise—at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i) to tell the Minister the address at which the holder is living; and
(ii) if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non compliance by the holder—to tell the Minister the changed address.
(1A) The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b) otherwise—14 days.
(1B) Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a stated class; or
(b) visa holders in stated circumstances; or
(c) visa holders in a stated class of people (who may be visa holders in a particular place); or
(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
107A Possible non compliances in connection with a previous visa may be grounds for cancellation of current visa
The possible non compliances that:
(a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
(b) if so specified, can constitute a ground for the cancellation of that visa under section 109;
include non compliances that occurred at any time, including non compliances in respect of any previous visa held by the person.
108 Decision about non compliance
The Minister is to:
(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b) decide whether there was non compliance by the visa holder in the way described in the notice.
109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non compliance by the holder of a visa; and
(b) considering any response to the notice about the non compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
110 Cancellation provisions apply whatever source of knowledge of non compliance
To avoid doubt, sections 107, 108 and 109 apply whether or not the Minister became aware of the non compliance because of information given by the holder.
111 Cancellation provisions apply whether or not non compliance deliberate
To avoid doubt, sections 107, 108 and 109 apply whether the non compliance was deliberate or inadvertent.
112 Action because of one non compliance not prevent action because of other non compliance
(1) A notice under section 107 to a person because of an instance of possible non compliance does not prevent another notice under that section to that person because of another instance of possible non compliance.
(2) The non cancellation of a visa under section 109 despite an instance of non compliance does not prevent the cancellation, or steps for the cancellation, of the visa because of another instance of non compliance.
The right to apply to the Tribunal for review of a decision under s.109 is conferred by s.412 by reason of s.411(1)(d) which makes “a decision to cancel a protection visa” a “RRT-reviewable decision”. Once a valid application for review is made “the Tribunal must review the decision” (s.414).
The Tribunal’s substantive powers in its review are both conferred and confined by s.415:
415 Powers of Refugee Review Tribunal
(1) The Tribunal may, for the purposes of the review of an RRT reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision.
(3) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.
Both counsel before me accepted that s.109(1) sets up in paragraph (a) an initial essential precondition before the Minister at first instance “may cancel the visa”. That is, that the Minister must as a first step decide in terms of s.108(b) “whether there was non-compliance by the visa holder in the way described in the notice” under s.107. This is clearly so in my opinion. The Minister has no power to cancel a visa under s.109 by reaching satisfaction that there was non-compliance in some other “way” or “ways” which were not “described in the notice”. The discovery of other “ways” of “describing” the non-compliance may not be used as a basis for cancellation in the procedure initiated by the s.107 notice. However, if desired by the Minister, a fresh procedure may be initiated by a further notice (see s.112). The argument before me seemed to accept this construction of the s.109 power of cancellation in the hands of the Minister.
The dispute between the parties is, firstly, whether the Tribunal was similarly confined by s.108(b) when exercising under s.415 “the powers and discretions that are conferred by this Act on the person who made the decision”. Counsel for the Minister argued in his written submissions to the Court that the Tribunal “in an application under s 411(1)(d) may review generally on the merits whether there has been non-compliance with s 101 and whether the visa should be cancelled. It is not confined to the matters included in a prior notice under s 107 of the Act.”
Counsel for the applicant accepted that, if this interpretation were correct, his ground of review could not succeed. However, he submitted that I was bound to take a contrary view of the Tribunal’s power by reason of decisions of the Full Court in SHJB v Minister for Immigration [2003] FCAFC 303 and of Allsop J in Saleem v Minister for Immigration [2004] FCA 234.
Confronted with these authorities, counsel for the Minister described his argument that the Tribunal was not obliged to decide non-compliance by making any reference to “the way described in the notice” as a “fall-back” position. His principal oral argument accepted that the power of cancellation in the hands of the Tribunal was preconditioned upon a decision that there was non compliance “in the way described”, but argued that these words required the Tribunal to identify and address the non-compliance (the false statements) identified in the notice, but not the particulars given in the notice of the matters upon which the allegation of falsity was based. This gives rise to the second question of interpretation.
Counsel for the applicant conceded that on the Minister’s interpretation of “non-compliance …in the way described”, the Tribunal made no error by relying upon findings on matters which had not been particularised in the s.107 notice when upholding the delegate’s opinion that the applicant’s visa claim to fear persecution was false. This must be so, since the “non-compliance” under s.101 which both decision-makers addressed was the falsity of the general statements by the applicant that he feared persecution if returned. However, counsel for the applicant argued that this construction (which would free the Minister as well as the Tribunal from being confined to the particulars of falsity given in the notice) could not be the intended meaning of s.108(b), since it would render nugatory an important policy reflected in s.107 and the scheme of the subdivision of the Act in which it appears.
It is convenient to address the Minister’s “fall-back” argument first.
Does 108(b) apply to the Tribunal’s re-exercise of the Minister’s power?
I consider that the Minister’s contention that the Tribunal can decide whether there has been a non-compliance with s.101 unfettered by s.108(b) should be rejected.
First, it is inconsistent with the clear language of the s.109 power of cancellation which is exercisable by the Minister and then the Tribunal. That power is expressly made available only “after … deciding under s.108 that there was non-compliance by the holder of a visa”. The reference to s.108, rather than 101, makes it clear that the “first-step” decision is the decision described in s.108(b) and not a decision at large as to whether there has been non-compliance with s.101.
Secondly, I consider that this construction is consistent with the opinions of the Full Court in SHJB (supra) when rejecting a contention that the Court itself in a judicial review proceeding could determine the question of non-compliance with s.101 as a “precedent” or “jurisdictional” fact conditioning the s.109 power to cancel. Their Honours said:
[17] However, in our view the appellant has wrongly identified the jurisdictional fact which gives rise to the power conferred by s 109(1). In our opinion, the relevant jurisdictional fact is to be found by a proper construction of ss 108(b) and 109(1)(a). The jurisdictional fact is a decision by the Minister that there was non-compliance by the holder of the visa with the requirements of s 108. That decision gives rise to the power to cancel the visa.
…
[21] … Parliament has decided that the jurisdictional fact is not whether the appellant failed to comply with s 101, but whether the respondent’s officer or the Tribunal had decided that there was such non-compliance.
Their Honours’ reasoning does not suggest that the “jurisdictional” decision about s.101 which is to be made by the Minister under s.108, changes its character when the matter reaches the Tribunal on review.
Thirdly, the situation is stated more clearly by Allsop J in Saleem (supra). At [22] his Honour rejected the proposition that the Tribunal on review of a decision under s.109 was limited in its function to the exercise of the discretionary power in s.109. He said: “when the Tribunal comes to the review of the decision to cancel the visa it too must decide whether there has been non-compliance for the purposes of s 108(b).”
At [43] his Honour approaches the s.109 power through an understanding of the s.107(1)(a) requirement that the originating notice must “give particulars of the possible non-compliance”. He rejects a submission that such particulars may merely be a reference to the section number which is alleged not to have been complied with, saying “it is the specifics (the particulars) of that non-compliance that are required to be given.” He then reasons:
[45] As a matter of ordinary English usage the words “in the way described in the notice” is apt to pick up what has been and was required to be particularised under s 107(1)(a).
[46] Thus, I accept the submissions of Mr Godwin that in exercising its powers of review under the Act, the Tribunal must decide as the jurisdictional fact (c.f. Eshetu and SHJB) whether there was non-compliance by the visa holder in the way described in the notice, being the manner particularised in the notice.
His Honour analysed the particulars in the notice given in the matter before him, so as to consider whether the Tribunal in fact had addressed those particulars notwithstanding that it had mistakenly thought that it was at large when considering non-compliance with s.101. His Honour held at [59-62] that the Tribunal’s findings that the applicant had provided incorrect information to the Department did not direct themselves to the occasions when this was alleged in the notice to have happened. He concluded that “the Tribunal failed to direct itself to answering the appropriate question called for by s 108(b)”, and that the Tribunal had not “appropriately directed itself to its task and has not answered the appropriate question, to the extent it can be answered, dictated by the terms of the notice under s 107(1)(a).” He granted relief on the basis that the Tribunal had acted beyond jurisdiction.
I consider that I am bound by the above opinions expressed by Allsop J upon which he decided Saleem, and also respectfully agree with them. They conclude that the Tribunal will not validly exercise its jurisdiction in a review of a s.109 cancellation decision unless it directs its findings at the particulars of non-compliance which were given in the initiating notice. His Honour’s opinions are clearly against counsel for the Minister in his “fall-back” submission. Whether they also resolve the second issue of construction, I shall consider below.
Before turning to that issue, I should note that counsel for the Minister supported his “fall-back” argument by reference to the Full Court decision in Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248. In that case, the Full Court considered the Migration Review Tribunal’s powers on review of a decision to cancel a visa under a power contained in a different part of the Act and governed by different procedural provisions (compare Part 2 Division 3 subdivision C “visas based on incorrect information may be cancelled” with subdivision D “visas may be cancelled on certain grounds” and the procedures under subdivision E and F). Under s.116 “the Minister may cancel a visa if he or she is satisfied that … the holder has not complied with a condition of the visa” or another specified event occurred. This power is not preconditioned in the manner of ss.108 and 109, but “show cause” procedures are provided for under ss.119 and 129.
In Zubair, it was conceded (see [19] of the judgment) that the delegate did not follow mandatory requirements of providing sufficient particulars of the grounds on which “the Minister is considering cancelling a visa”, nor allow a reasonable opportunity to respond to such information as was put to him. It was conceded that these defects rendered the delegate’s decision invalid. The visa-holder’s contention was, in effect, that the invalidity meant that both the delegate’s decision and a decision by the Tribunal affirming it were of no legal effect. The Court at [32] rejected the contention that the invalidity of the delegate’s decision deprived the Tribunal of its jurisdiction to review, citing well established authority in relation to Commonwealth merits review structures. It also expressed the opinion that “the Tribunal was, in consequence, able to “cure” the defect in the delegate’s decision”, citing authority which held that a review body decision may cure defects in procedural fairness affecting first instance decision-making.
In my opinion, neither Zubair nor the line of case upon which it is based, requires me to depart from the (previously expressed) opinion of Allsop J on the statutory provisions currently concerning me. The line of cases upholding a review tribunal’s jurisdiction to review invalid decisions does not support an argument that a review Tribunal acquires substantive powers which were not available to the primary decision-maker, i.e. freed from substantive pre-conditions. There are numerous authorities holding that a merits review tribunal of the present type has no greater or different substantive powers than the primary decision-maker (c.f. Re Shortis and Secretary, Department of Community Services and Health (1991) 13 AAR 544 at 548; Re Uniway Pty Ltd and Chief Executive Officer of Customs (1999) 29 AAR 289 at 295; Re Western Australian International Education Marketing Group (Inc) and Australian Trade Commission (2003) 77 ALD 192 at [46]; Re Donald and ASIC (2001) 64 ALD 717 at [28] and on appeal in the Full Court (2003) 77 ALD 449 at [30] and [59], and the other cases discussed in Pearce (ed) “Australian Administrative Law” at [267]). A jurisdiction to “cure” procedural grounds of invalidity affecting a primary decision does not carry this implication. Where the ground of invalidity of the primary decision arose from misconception of the substantive power, the review Tribunal remains equally bound to apply the laws defining the power of the primary decision-maker, and it may only substitute a decision which could have been made within confines of the decision-maker’s power. Thus, in the Brian Lawlor Case, the Tribunal’s only power in relation to a decision made without substantive power was to set aside that decision (c.f. Brennan J in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 176). I therefore consider that the reasoning in Zubair is not relevant to the present issue.
To the extent that Zubair is based on a construction that the “show cause” and procedural fairness provisions relating to the s.116 cancellation power are procedural requirements governing decision-making by the primary decision-maker and not by the review body, I consider that it should be distinguished from the issue arising in the present case in relation to the s 109 power. The scheme of cancellation under subdivision C adopts a clearly different approach to the scheme considered in Zubair. As the above discussion of ss.107, 108, 109 and 112 shows, the ambit of a s.107 notice defines the “first step” decision under ss.109(1)(a) and 108(b) in a substantive way, and this is not just a procedural matter. In my opinion, Allsop J’s holding that the Tribunal was bound to direct its s.101 non-compliance finding at the issue defined by s.108(b) remains authority binding upon me.
What is the meaning in s.108(b) of “non-compliance … in the way described in the notice”?
In the passages from Saleem which I have quoted above, Allsop J gave the opinion that these words refer back to “the manner (of non-compliance) particularised” in the s.107(1)(a) notice. In my respectful opinion this must be so. The scheme of decision-making is that the decision-maker must address only the particulars of non-compliance which were formally notified to the applicant in the notice which initiated the cancellation action. The statutory context, in which a person may be deprived of permanent rights of residence and citizenship, explains the legislature’s concerns: (i) that proper notice must be given; (ii) that the notice must contain “particulars”; and (iii) that the power of decision should be defined by reference to a finding based on those particulars and no others.
Moreover, in my opinion this context confirms that the “particulars” referred to in s.107(1)(a) are not only particulars which “specify” (c.f. the language used in s.107A) the “possible non-compliances”, in the sense of identifying the statements made in documents or otherwise which are alleged to have been made incorrectly. Such a reading might on occasions provide sufficient notice of the allegations of falsity, but will not do so if the falsity is alleged to relate to a general statement such as “I fear persecution”. In relation to an allegation that a general statement was made falsely, the requirement of “particulars” must, in my opinion, also encompass particulars of the basis upon which the falsity is alleged, and these must be given with enough detail to allow the recipient a real opportunity to understand and attempt to answer the non-compliance allegation.
There are many authorities concerning situations where the potential consequences of the decision-making are a serious deprivation of rights, which have interpreted a statutory requirement of particularity in a manner which ensures that the person in question has a real opportunity to understand and deal with the matters alleged. On these authorities, I consider that in notices under s.107 it is “necessary for the notice to identify in clear terms: all charges to be relied on, the relevant legislative provisions or rules giving jurisdiction; the particular grounds relied upon where there are several alternatives; and particulars of the act, matter or allegations forming the basis for the charge” (c.f. the extract from Aronson and Dyer, Judicial Review of Administrative Act, 2nd ed, quoted by Weinberg J in Gribbles Pathology (Vic) Pty Ltd v Cassidy (2002) 122 FCR 78 at 100, and the cases cited by his Honour). The presenter of a s.107 notice must bear in mind the procedural fairness objectives of the requirement to give particulars: the recipient must be told “precisely what he has to meet” (c.f. Hunt J in Etherton v Public Service Board [1983] 3 NSWLR 297 at 445 and other cases cited by Davies J in Yung v Adams (1997) 80 FCR 453 at 455-457, approved in Adams v Yung (1998) 83 FCR 248 at 297). The importance of this in the present procedure is strengthened, rather than weakened, because the legislature has made satisfaction of non-compliance “in the way described in the notice” a precondition to the powers of the decision-makers at first instance and on appeal.
Support for this interpretation of the “particulars of the possible non compliance” required to be given under s.107(2)(a) is found in the Full Court’s explanation of what is required under s.119(1)(a) in a notification “that there appear to be grounds of cancelling” a visa under s.116. In Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235, the Court said at [25]:
“Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open. The supporting information will include a description of any evidence upon which the grounds are based. The grounds, as particularised, may be inferences from the evidence and in that sense conclusionary.”
In my opinion, the second issue of interpretation should be answered in favour of the applicant.
Counsel for the parties differed in their submissions whether Allsop J in Saleem indicated the same opinion as to the extent of the “particulars” required under s 107 and defining the first-step decision under s 108(b). Counsel for the Minister submitted that he did not. He argued that his Honour’s reasoning addressed only the requirement that the particulars must identify the “occasions” on which the alleged false statements were made, and did not address whether they must also indicate the bases upon which the falsity is alleged. It was not submitted that Allsop J thought that particulars clarifying an allegation of falsity did not form part of the “way described in the notice” which must be addressed by the decision-makers, but only that his Honour was not required, and did not, decide the present point. I am inclined to accept this submission. However, I consider his Honour’s opinions extracted above are not inconsistent with the interpretation I adopt, and, indeed, that they are consistent with my interpretation.
I therefore consider that a Tribunal would fail to exercise its jurisdiction if it decided that there was “non-compliance by the visa holder” by reason of the falsity of statements identified in the s.107 notice, where its conclusion as to falsity relied wholly or in part upon adverse findings concerning matters which had not been squarely raised by particulars provided in the notice. I consider in the present case that s.108(b) required the Tribunal, when deciding whether the applicant’s statements falsely claimed a fear of persecution if returned to Jordan, to confine the basis for its decision to the particular allegations which were raised in the s.107 notice as discussed above.
I turn to consider whether it failed to do so.
Was the present Tribunal’s finding of non-compliance based upon particulars not described in the notice?
The Tribunal did not discuss the extent to which it was entitled to have regard to its various concerns about the falsity of the applicant’s refugee claims. It is therefore necessary to infer its opinion on this from the manner in which it answered the first question which it posed for itself: “Was 101 of the Act breached? Did the applicant give incorrect answers on his application form on 29 May 2000 in the ways described in the notice sent under s 107?”
I consider that it is clear that the Tribunal shared the construction of s.108(b) which was principally argued by the Minister: that it was bound to address the incorrect answers identified in the s.107 notice, but that it was not bound to decide their falsity within the particulars provided in the notice. This emerges in what the Tribunal said at the beginning and end of its lengthy discussion on the “first step” decision. Its reasoning was as follows:
a)The Tribunal presented its ultimate conclusion and summarised the basis for its conclusion at the start of its discussion:
“I find that s.101 was breached as I consider that the applicant made false claims at the time of making his protection visa application of being wanted by Jordanian Intelligence and of facing persecution if returned to that country. This is made clear by evidence given by the applicant’s father to Embassy officials in Amman and by the solicitor alleged to have written a letter supporting the applicant’s protection visa claims, and it is also evident from other factors such as the applicant’s ability since 1997 to travel in and out of Jordan and to spend long visits there without encountering trouble, and his ability to renew his Jordanian passport. These issues are detailed below.”
b)The Tribunal then addressed each of these four “issues” under separate italic headings.
c)It first addressed “the father’s evidence”: something which was not referred to in the s.107 notice and which the delegate had not raised nor relied upon. It compared a record made in Amman by an Embassy official of an interview with the applicant’s father which suggested that the applicant had no problems in Jordan before he left, with other evidence from the father presented to the Tribunal. The Tribunal rejected the latter evidence, concluding: “I am of the firm opinion that the evidence given in writing by the father in 2002 was fabricated in an effort to prevent cancellation of the applicant’s protection visa.”
d)The Tribunal then addressed a document on the letter-head of a Jordanian solicitor which had been presented in corroboration of the applicant’s refugee claims, but which the solicitor subsequently disclaimed knowledge of to Embassy officials. The Tribunal said: “The matter of the bogus letter from the solicitor clearly shows that the applicant has no qualms about fabricating evidence to suit his purposes.” This matter had not been raised in the s.107 notice, and the delegate expressly disclaimed reliance upon it.
e)The Tribunal then addressed the applicant’s ability to renew his Jordanian passport, and found that “the applicant’s ability to renew his passport in 2000 for five years does not support his claims of 1997 that the Jordanian authorities regarded him as a wanted person or are trying to force his return to Jordan to enable consequent arrest etc., allegedly arresting his brother and bullying his father as means of coercing the applicant’s return.” The Tribunal did not accept the applicant’s evidence as to why he thought this renewal was necessary to enable him to travel outside Australia, nor that it was effected through a corrupt official. As I have indicated above, the s.107 notice did not refer to the renewal of the passport at all. The renewal was referred to in the delegate’s subsequent clarification, but not as evidence of falsity of the earlier refugee claims. Rather, it was suggested that the applicant might be found to have withdrawn his claim to Australia’s protection. The delegate was subsequently given legal advice that this could not provide a ground for cancellation. I consider that the renewal of the passport was never given to the applicant as a particular of the falsity of his statements in his visa application.
f)The Tribunal then addressed the second matter which had been raised in the s.107 notice and relied upon by the delegate: the applicant’s decision and ability to travel repeatedly to Jordan. The Tribunal at the start of this discussion said:
“Given the applicant’s decision to visit his country of claimed persecution thrice since obtaining a protection visa I find that he gave incorrect information in his protection visa application that he had a subjective fear of persecution in Jordan and believed that he faced a real chance of persecution there.”
g)The Tribunal refers to the explanations given for these visits by the applicant, and did not accept that they were consistent with his earlier claim to fear persecution. It did not accept that he would have been able to have avoided detection and arrest by Jordanian security authorities in the manner claimed. The Tribunal then expressed its conclusion on this fourth issue and weighed it with its other findings as follows:
“In the light of the above, I find that the applicant gave incorrect information about being wanted for arrest by Jordanian Intelligence in 1997 because his subsequent ability to repeatedly re-enter and exit Jordan using his own national passport, and his ability to stay in Jordan for considerable periods free from harm, are at odds with this claim.
Given all of the issues explored under the italicised headings above I find that the applicant am not satisfied that the applicant left Jordan out of a well-founded fear of persecution or that he faces a real chance of persecution if returned to that country. I find that his claims of persecution are (? sic: not) credible given the general lack of credibility in his evidence. I do not accept that he engaged in illegal political activity and was targeted over it. In all, I find to a high degree of satisfaction that the applicant has breached section 101 of the Act by providing incorrect information on his protection visa application of 11 December 1997 that he has a well-founded fear of persecution in Jordan.
Other matters in the applicant’s evidence support this finding.”
h)The finding in the first sentence of the middle paragraph is somewhat garbled, but has not been the subject of a ground of review arguing a misapprehension as to the applicable standard of satisfaction. The opening words of the sentence do, however, confirm that the Tribunal considered that it could and should base its s.108(b) conclusion upon its cumulative findings on all of the four matters which it thought established the falsity of the applicant’s visa application claim of a fear of persecution.
i)The Tribunal’s discussion then dealt with “other matters” which had been raised by the applicant in his response to the s.107 notice or to the delegate’s decision. The Tribunal made further adverse findings in relation to many aspects of his response, finding that some of his responses were implausible and that some documents he presented were fabrications designed to support his claims of persecution. Counsel for the applicant did not seek to argue that it was not open to the Tribunal to address this material so as to test its adverse s.101 finding, since the material formed part of the “response” which s.108(a) expressly requires a decision-maker to “consider”.
j)The Tribunal completed its discussion of these matters and of its “first step” decision as follows:
“In all, I am not satisfied as to the credibility of the evidence presented by the applicant as rebuttal of the Department’s finding that he had presented incorrect information in his protection visa application, and therefore my finding that he has breached s 101 of the Act remains in place.”
k)The Tribunal, finally, addressed the first particular raised by the s.107 notice: the allegation that the applicant was an agent for Jordanian Intelligence. The Tribunal gave no weight to evidence suggesting this, and made no credibility findings about the applicant in relation to the evidence. Conversely, it refused to accept the applicant’s argument that it revealed a plot by Jordanian Intelligence to force him back to Jordan.
I consider that the Tribunal’s reasoning examined above implicitly shows that it misconceived the effect of s.108(b) on its power to make a finding under s.109(1)(a). As a result, its finding that the applicant’s general statement that he feared persecution was false was based partly on adverse findings on matters which were not particularised or “described” in the initiating s.107 notice. Although the Tribunal did address the two particularised bases for the non-compliance alleged in the notice, these were not identified as the necessary focus or foundation of the Tribunal’s conclusion. One of them was given no weight, and the other matter was seen as only one of four matters supporting the Tribunal decision. At least two significant matters centrally relied upon by the Tribunal had not been particularised in the s.107 notice nor raised in response by the applicant.
I do not consider that, on a fair reading of the Tribunal’s reasons, it is possible to isolate its discussion of the applicant’s visits to Jordan so as to conclude that the Tribunal’s misconception about the effect of s.108(b) was immaterial to its decision. Although it is possible that, had the Tribunal correctly instructed itself on this, it might have been satisfied of the falsity of the applicant’s claim solely by reference to this matter, I cannot be satisfied as to this with the confidence required by the authorities (c.f. X v Commonwealth (2000) 200 CLR 177 at 210 [112]). On my own assessment of the material which was before the Tribunal (confidential parts of which are not in evidence before me), I am far from satisfied that an adverse conclusion was “virtually inevitable” (c.f. Samad v District Court of NSW (2002) 209 CLR 140 at [44-46], see also Jankovic v Minister for Immigration (1995) 56 FCR 474 at 477, Nguyen v Minister for Immigration (1998) 88 FCR 206 at 213, Kumaraperu v Minister for Immigration (1998) 88 FCR 381 at 396). I do not consider that there is any discretionary reason to deny relief to the applicant.
For the above reasons, I consider that the applicant has established that the Tribunal’s decision proceeded upon a significant error of law as to the effect of s.108(b), and that he has made out an entitlement to writs of certiorari to quash the Tribunal’s decision. His application also seeks writs of mandamus to compel the Tribunal to rehear the application for review according to law, and of prohibition to restrain the Minister from giving effect to the Tribunal’s current decision.
The court’s jurisdiction to grant this relief under s.483A of the Migration Act and s.39B of the Judiciary Act 1903 (Cth) is subject to the limitations under Part 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Applicants S134/2002 (2003) 211 CLR 441 at [15] and [76-7], and in subsequent cases, Part 8 requires me to be satisfied that the error of law I have identified amounts to a “jurisdictional error.” However, counsel for the Minister did not argue that it was not, and I am satisfied that the Tribunal’s error caused it to “ask a wrong question” and “rely on irrelevant material in a way that affects the exercise of power” (see cases cited in WACO v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 511 at [60-1]).
For the above reasons, I consider that the applicant is entitled to the relief he seeks. I do not, however, consider that it is appropriate to make orders directed at quashing the Tribunal’s decision and ordering it to rehear the matter, without the Tribunal being joined as a party and (as would be inevitable) filing a submitting appearance. It has not been joined due, no doubt, to an opinion that the Minister is the only proper respondent in migration matters (see NAAA v Minister for Immigration & Multicultural Affairs (2002) 117 FCR 287). However, the statutory direction in s.479 of the Migration Act which was thought to have this effect applies only in “a review of a privative clause decision”, and the effect of my above conclusions is that the present Tribunal decision is not a privative clause decision. In my opinion, the normal requirement of joinder of the decision-maker subjected to the court’s order should therefore be observed.
I shall grant the applicant leave to join the Tribunal, and stand the matter over to allow the Tribunal to enter an appearance and the parties to bring in short minutes of orders. If questions of costs cannot be agreed, I shall also hear submissions on that topic.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 27 January 2005
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