SZEGT v Minister for Immigration
[2005] FMCA 442
•9 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEGT v MINISTER FOR IMMIGRATION | [2005] FMCA 442 |
| MIGRATION – Review of Refugee Review Tribunal decision – whether Tribunal under a duty to make enquiries – whether the applicant was denied procedural fairness – no jurisdictional error – application dismissed. |
Migration Act 1958 (Cth), ss.65, 91X, 422B, 423, 424, 424(1), 424A, 425, 427, 474, Division 4 of Part 7, (s.476(2), Part 8 – repealed)
Judiciary Act 1903 (Cth), s.39B
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Luu v Renevier (1989) 91 ALR 39
Tickner v Bropho (1993) 40 FCR 183
Minister for Immigration v Teoh (1995) 183 CLR 273
Andary v Minister for Immigration & Multicultural Affairs [2003] FCAFC 211
Re Minister for Immigration & Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59
Minister for Immigration & Ethnics Affairs v Eshetu (1999) 197 CLR 611
WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Parramatta City Council v Pestell (1972) 128 CLR 305
Commission for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Re Minister for Immigration; Ex parte Aala (2000) 204 CLR 82
Kioa v West (1985) 159 CLR 550
University of Ceylon v Fernando [1960] 1 ALL ER 631
Furnell v Whangarei High Schools Board [1973] AC 660
Wiseman v Borneman [1971] AC 297
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
Annetts v McCann (1990) 170 CLR 596
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32
Abebe v Commonwealth (1999) 162 ALR 1
Luu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 369
Minister for Immigration & Multicultural Affairs; Ex parte Cassim [2000] HCA 50
Minister of Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231
| Applicant: | SZEGT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 2645 of 2004 |
| Delivered on: | 9 June 2005 |
| Delivered at: | Sydney |
| Hearing date: | 10 March 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Legal Aid Commission |
| Counsel for the Respondent: | Mr G Kennett |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2645 of 2004
| SZEGT |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 25 June 2004 and handed down on 20 July 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 18 September 2003 to refuse to grant the applicant a protection visa.
Background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEGT”.
The applicant, who claims to be a citizen of Nigeria, arrived in Australia on 25 May 2003. On 12 June 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 18 September 2003 the delegate refused to grant a protection visa and on 27 October 2003 the applicant applied to the Tribunal for a review of the delegate’s decision.
In his visa application, the applicant stated he was born in November 1953 in Ebudin in Nigeria. He stated he entered into a de facto relationship in 1986 and that his wife and three sons and two daughters remain in Nigeria. The applicant claimed that he was employed as a primary school teacher during the periods 1973 to 1981 and 1985 until his departure from Nigeria in 2003. He stated that he undertook undergraduate studies in 1981 to 1984 and was then employed by the National Youth Service from 1984 to 1985 (Court Book p.6) (“CB”).
The applicant stated that he arrived in Australia in May 2003 on a Nigerian passport issued in March 2003. Certified photocopies from the applicant’s passport which were supplied with his visa application confirmed these details and indicated he was granted a temporary business visit visa for travel to Australia by the Australian High Commission in Lagos on 17 April 2003 (CB p.205).
Applicant’s claim
In his visa application, the applicant stated he fled Nigeria because he had been a target of ongoing persecution and ill treatment by the State security services because he was a political activist and Urhobo by birth. The applicant claimed his life had become insecure because of incessant police interrogation and maltreatment (CB p.7). The applicant stated he had lived on Kokori Island in the Niger Gulf region. He claimed that on 10 January 2003, due to continued tension in that region, there was widespread protest against oil companies and the Federal Government on the issues of environmental degradation and the lack of compensation and development assistance to local communities. The applicant stated that there had been a permanent deployment of army and naval troops to protect oil companies against so called saboteurs which led to a series of clashes between the armed forces and local students, youths and activists. The applicant claimed that on 15 February 2003 several hundred women staged a peaceful protest outside the operational headquarters of the oil companies, Shell, Chevron and Texaco in Warri Town in the Delta State. However, this protest was broken up by soldiers and police officers and the women subsequently suffered scars and bruises as a result of beatings (CB p.206).
The applicant stated he feared incarceration and possible murder if he were returned to Nigeria. He claimed his fellow activists had been and were still being killed. The applicant claimed that on 15 March 2003 he was picked up from his house before dawn by uniformed men who took him to an unknown destination where they threatened to kill him. He claimed that after slapping, kicking and making him do a frog jump; he was taken to a police station in Ughelli. The applicant stated he was then placed in a cell housing hardened criminals who began torturing him. While he was in the cell, the applicant claimed people obtained documents for him to travel to Australia and eventually he escaped from the police cell through “an act of God” (CB p.206).
The applicant stated that the state and federal government security agents (police, SSS and the army) would harm or mistreat him if he returned to Nigeria. He also stated that the circumstances surrounding his flight from Nigeria and stated that as long as the problem in the Niger Delta remained unresolved the police and army brutality would continue. The applicant claimed that the authorities in Nigeria could not and would not protect anyone branded as a saboteur and if the indigenes of the Delta region remained opposed to the policies of the federal government there could be no protection guaranteed (CB p.206).
The Tribunal’s findings and reasons
Attached to a submission of the applicant’s adviser dated 7 May 2004 was a letter from a Nigerian lawyer, a Mr C R O Agbor, attesting to his assistance to the applicant after his arrest in February 2003 and to the fact of the applicant’s detention in March 2003. The letter stated:
“We write to inform you that our client was arrested on
17 February 2003 by agents of the State Security Service and detained at Ughelli Police Station where he was subjected to intense interrogation. We were called to assist in securing his bail, which we did promptly.
On 15 March 2003 our client was picked up again by agents of the State Security Service and dumped at the Ughelli Police Station for alleged involvement in the Warri crisis. He later escaped from custody.” (CB p.66)
At the Tribunal hearing the applicant gave further details and said his solicitor, Mr Agbor, obtained his release on bail after the detention on 17 February 2003 and that Mr Agbor’s services were retained by the applicant's brother (CB p.211). The Tribunal contacted Mr Agbor on
3 June 2004 to confirm he had written the letter and noted that:
“… Mr Agbor confirmed that he was familiar with the applicant’s case and had written the letter of 15 January 2004 concerning the applicant[s] detentions in February-March 2003, a copy of which was provided by the applicant’s adviser with his submission of
7 May 2004. As this information – i.e. the applicant’s lawyer’s confirmation of this letter – is not adverse to the applicant’s claims, it has not been referred to him for comment.”
(CB p.215).An affidavit of James Wallace Dagnall, Solicitor of the Legal Aid Commission of New South Wales affirmed on 29 October 2004 and filed in these proceedings on 3 November 2004 (“the affidavit of
Mr Dagnall”) was provided to evidence the fact the call to Mr Agbor was made and canvassed the fact that the letter of 15 January 2004 had been written by Mr Agbor.
The Tribunal accepted the applicant’s claims to have been detained and mistreated but did not accept that those detentions were attributable to political opinion for the following reasons:
a)the applicant stated his concerns in a general way;
b)the applicant failed to provide specific documentation to corroborate his individual claims, specifically of being selected for a committee;
c)certain parts of the applicant’s evidence, particularly those regarding the alleged escape from detention and current interest in him, were “unconvincing and contrived”;
d)the claimed manner of departure from Nigeria lacked credibility;
e)there was a lack of urgency in his departure from Nigeria and his subsequent application for a protection visa (CB pp.215-217).
In regard to the letter of 15 January 2004 from Mr Agbor, the Tribunal noted:
“[The letter] does not make any mention of the nature of the matter about which the applicant was detained and interrogated in February 2003. The lawyer arranged his release on bail and the applicant has confirmed that no further action … occurred as an outcome of that first detention.” (CB p.216)
The Tribunal also noted:
“[The letter] … describes the applicant’s March 2003 detention as being for ‘alleged involvement in the Warri crisis’ but in the absence of any claim by the applicant or the lawyer that the lawyer was involved in any way in that second detention I do not accept that the lawyer has any direct knowledge of the applicant’s second detention and therefore do not give that explanation the applicant’s second detention any credence.
I am therefore unable to find on the evidence before me that the applicant’s detentions arose from any political activity on his part.” (CB p.216)
Application for review of the Tribunal’s decision
On 25 August 2004, a Solicitor from the Legal Aid Commission of New South Wales, on behalf of the applicant, filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
1.The Tribunal failed to carry out its duty under s.424(1) of the Migration Act, and to afford the applicant procedural fairness, in that it failed to enquire of the applicant’s solicitor in Nigeria what personal knowledge the solicitor had as to the circumstances of the applicant’s arrest on 15 March 2003.
2.The Tribunal, in utilising its powers to obtain information under s.424, acted in a way that was so unreasonable that no reasonable person could so act, in that it failed to ask the applicant’s solicitor what personal knowledge he had as to the circumstances of the applicant’s arrest on 15 March 2003.
The Law
The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicants S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicants S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.
Applicant’s submissions
Mr L Karp of Counsel, appearing for the applicant, filed written submissions prior to the hearing which contained the following contentions:
a)It was clear that Mr Agbor’s knowledge of the applicant’s activities were central to the Tribunal’s decision. Mr Agbor’s letter clearly gave his telephone number and the Tribunal subsequently contacted him by telephone pursuant to its discretion under s.424(1) of the Act. Mr Dagnall’s affidavit evidenced the Tribunal’s conversation with Mr Agbor was very brief and limited to confirmation of the authorship of the letter of 15 January 2004. An obvious question is why, if the Tribunal had doubts about the contents of the letter, it did not resolve them on the telephone with Mr Agbor. The information was centrally relevant and readily available.
b)In Prasad v Minister for Immigration & Ethnic Affairs (“Prasad”) per Wilcox J at 169-170 sets out the obligation to enquire. The observations of Wilcox J have been applied by the Full Court of the Federal Court in Luu v Renevier; Tickner v Bropho per Black CJ, as well as in innumerable judgments of single judges of the Federal Court. The principle expressed by Wilcox J was cited, with approval, by the High Court in Minister for Immigration v Teoh per Mason CJ and Deane J.
c)These cases were decided under the Administrative Decisions (Judicial Review) Act 1977 (Cth). More recently, in Andary v Minister for Immigration & Multicultural Affairs the Full Court of the Federal Court found it unnecessary to resolve the question of whether “Wednesbury unreasonableness” founds jurisdictional error. The better view is that it does: Re Minister for Immigration; Ex parte S20/2002 (“S20/2002”) and, if so, the circumstances of this case would constitute a paradigm which fits perfectly within the principle as stated by Wilcox J in Prasad.
d)If Wednesbury unreasonableness is not available as a ground of judicial review per se, then the decision is amenable to other grounds of judicial review, and specifically to that of a denial of procedural fairness: see Minister for Immigration & Ethnics Affairs v Eshetu, (“Eshetu”) Gummow J at [125]-[126].
e)Whether stated as an obligation arising out of a duty to accord procedural fairness, or indeed an exercise of a discretionary power in a manner that was manifestly unreasonable, the decision under review is infected with jurisdictional error. It could not be otherwise in circumstances where:
i)Mr Agbor’s letter was centrally relevant to the Tribunal’s decision as to whether the applicant’s claims were accepted;
ii)the letter itself did not resolve the Tribunal’s doubts;
iii)the author of the letter was available by telephone; and
iv)the Tribunal telephoned the author to confirm the authenticity of the letter but not to ask simple questions which would have resolved those doubts.
f)Section 422B of the Act does not apply to this case because:
i)the applicant’s natural justice complaint does not pertain to “the hearing rule”; and
ii)Division 4 of Part 7 of the Act does not “deal with” the circumstances in which enquiry must be made.
Respondent’s submissions
Mr G Kennett of Counsel, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)
The applicant claimed he had been arrested and imprisoned by police on 17 February 2003 and again on 15 March 2003
(CB p.209). In support of this claim the applicant’s adviser submitted to the Tribunal a letter from Mr Agbor, being the applicant’s lawyer in Lagos. The letter indicated the applicant had been detained by police on two occasions; on the first occasion Mr Agbor had obtained his release on bail; and on the second occasion the applicant had escaped (CB p.66). In regard to Mr Agbor’s letter, the applicant claimed:
i)the Tribunal telephoned Mr Agbor after the hearing and confirmed “he was familiar with the applicant’s case and had written the letter of 15 January 2004 concerning the applicant’s detentions in February-March 2003” (CB p.215);
ii)the Tribunal remarked that the applicant’s claim to have been detained was “supported” by Mr Agbor’s letter and accepted that the detentions (and mistreatment) had occurred (CB p.215); and
iii)the applicant failed because the Tribunal was not satisfied that his detention had resulted from political activity. In that connection the Tribunal did not give Mr Agbor’s letter any weight, because:
·as to the February detention, the letter did not make any mention of the “nature of the matter about which the applicant was detained and interrogated”, and
·as to the March detention, the letter described it as occurring for “alleged involvement in Warri crisis”, but no indication was given that Mr Agbor had any direct knowledge of this (CB p.216).
b)
The Tribunal erred by not discussing the letter further with
Mr Agbor in order to “resolve” the “doubts” that it had about the letter and this failure is characterised as Wednesbury unreasonable and/or a denial of procedural fairness.
c)The respondent contended that the Tribunal’s treatment of the letter does not bear either characterisation and that, to the extent that the applicant’s case relied on procedural fairness, it cannot succeed in light of s.422B of the Act. It described, however, that the applicant could succeed if the Tribunal was under a duty to exercise its power under s.424(1) of the Act “to get information” from Mr Agbor. The existence of such a duty is precluded by the reasoning of the Full Court in WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs (“WAGJ”) (which concerned the parallel power to instigate ‘inquiries’ under s.427). The Court in WAGJ expressly disagreed with earlier decisions in which it was suggested that circumstances might arise in which there would be a duty to conduct inquiries or to consider doing so. It was accepted that a failure to inquire into an issue might be indicative of some form of error (e.g. bad faith); but WAGJ is binding authority against any argument that failure to inquire is an error per se. The applicant’s argument is of the latter kind. In any event, the applicant’s argument faces insurmountable difficulties of legal analysis and factual application.
d)As a matter of law, there are difficulties in applying the reasoning in Prasad and decisions following it (all of which concern statutory grounds of review) in the search for jurisdictional error:
i)“Wednesbury unreasonableness” is, of course, a doctrine which applies to the exercise of discretionary powers: Eshetu. Considerations of “reasonableness” bear upon the formation of a state of “satisfaction” (such as that required by s.65 of the Act) by requiring that the relevant state of satisfaction be one that could reasonably be reached on the material before the decision maker: Eshetu; Minister for Immigration & Multicultural Affairs v Jia Legeng per Gleeson CJ and Gummow J. The relevant limitation on power is therefore one which bears upon the quality of the opinion formed by the decision maker and not on his or her conduct anterior to forming the opinion.
ii)The doctrine of procedural fairness concerns itself with whether an applicant has had a proper opportunity to present his or her case (including an opportunity to answer adverse material). The doctrine loses its focus if it is expanded into a general obligation to “act judicially”. To the extent that some such expansion has been suggested: Australian Broadcasting Tribunal v Bond per Deane J; S20/2002 per Gleeson CJ and Plaintiff S157/2002 per Gleeson CJ, it goes to the rational analysis of what has been put before the decision maker rather than the exercise of information gathering powers (and remains, in any event, a minority view).
e)In the present case, there was nothing “unreasonable” or “unfair” about the Tribunal’s treatment of the letter from Mr Agbor.
i)The starting point must be that it is for an applicant before the Tribunal to make out his or her case: Prasad. The Tribunal was not obliged to construct the applicant’s case for him. Nor was it obliged to help the applicant by improving the case he had put.
ii)Mr Agbor’s letter was put before the Tribunal by the applicant, who at that stage was unrepresented. It was the applicant’s task to make the evidence supporting his claim as strong as it could be made. For the example, the applicant could have:
·asked Mr Agbor (who was, and apparently still is, his lawyer) to include details of what he knew about the reasons for the applicant’s detention and the basis of his knowledge; or
·made submissions of his own as to why Mr Agbor’s confirmation was reliable.
iii)
It should not be assumed that further material from
Mr Agbor was “readily available” to the Tribunal. As a lawyer retained by the applicant, Mr Agbor might have had reservations about saying anything further without instructions. In any case, further material was, if anything, more “available” to the applicant than the Tribunal and the proper source of such material was from the applicant. In fact, the Tribunal used its powers under s.424 to make any enquiry and confirm that Mr Agbor’s letter was genuine. That was more than the duties of the Tribunal required and was of assistance to the applicant. The Tribunal should not be criticised for not asking further questions which might have advanced the applicant’s case further.
f)The rules of “natural justice” have long been understood as comprising the “hearing rule” and the “rule against bias”: Judicial Review of Administrative Action. As a matter of construction, therefore the “natural justice hearing rule” must be understood as referring to all of the requirements of natural justice (or procedural fairness) that are not comprehended by the rule against bias. If it were held that the Tribunal had denied the applicant procedural fairness by failing to pursue inquiries, that would constitute a conclusion that the “hearing rule” had not been observed. The alleged error has nothing to do with bias; it comprises a failure to “hear” the case in the manner which (the applicant contends) fairness requires.
g)The “requirements of the natural justice hearing rule” are, by reason of s.422B of the Act, to be regarded as exhaustively stated by the provisions of Division 4 of Part 7 of the Act “in relation to the matters it deals with”. As to those “matters” the Tribunal will only breach a relevant “requirement” if it fails to comply with a provision of Division 4.
h)One of the “matters” with which Division 4 deals (in ss.424 and 427 of the Act), is the acquisition by the Tribunal of further information. It follows that a failure to acquire information only amounts to a breach of the “natural justice hearing rule” if there is a failure to comply with one or other of those provisions. However, that situation will not occur because the relevant provisions do not impose duties on the Tribunal.
Applicant’s reply
The applicant filed submissions in reply which contained the following contentions:
a)As the respondent noted in paragraph 19(c) above, the applicant contended that the Tribunal was under an obligation to exercise its power under s.424(1) of the Act. This stemmed not from the subsection itself, as was the case put by the appellant in WAGJ, but from the Tribunal’s duties to act reasonably and rationally and to accord natural justice. The respondent’s submission citing WAGJ failed for because the case was decided under the repealed Part 8 of the Act. The former s.476(2) of the Act precluded judicial review in the Federal Court on the grounds of denial of natural justice and manifest unreasonableness in the making of the decision. Those grounds were the crux of the applicant’s argument in this case.
b)The applicant contended that the respondent was wrong in the statement that there were difficulties in applying the reasoning in Prasad to this case (paragraph 19(d) above). Wilcox J’s observations in Prasad were consistent with the view that the statutory provision there being considered (s.5(2)(g) AD(JR) Act), and the common law test of unreasonableness were identical (6 FCR at 167-169). Indeed, the principles set out in Prasad were identical to those applied by the High Court in Parramatta City Council v Pestell – a case decided under common law.
c)In regard to “Wednesbury unreasonableness”, (paragraph 19(d)(i) above), this issue pertained to the exercise of discretionary powers of which s.424(1) was one and goes to the quality of the opinion formed. However, such an opinion may manifest itself in conduct and the dichotomy between opinion and conduct sought to be drawn by the respondent is false. Thus, as Wilcox J said in Prasad:
“… in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision making power in a manner so unreasonable that no reasonable person would have so exercised it”.
d)It was submitted that the respondent (paragraph 19(e)) was misconceived and there was no suggestion in Mr Agbor’s letter (CB p.66) that he did not have personal knowledge of the events described therein. If the Tribunal saw an ambiguity in the letter, the only question that it needed to have asked Mr Agbor was: “Do you have personal knowledge of this event?”. The failure to pick up a telephone and make the call is inexplicable. The case comes within the principle and so the decision must be set aside.
e)In discussing s.422B of the Act, the respondent sought to confine natural justice to categories and then to assign the applicant’s natural justice submissions within the category most suited to its purposes. Natural justice is not to be so confined. In Commission for Australian Capital Territory Revenue v Alphaone Pty Ltd at 591-592, the Full Court of the Federal Court stated the principle as follows:
“Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.” (Emphasis added)
Cited with approval in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah at 117-8 per Kirby J.
f)The emphasis added to the passage related to ambush, as does the judgment of the High Court in Re Minister for Immigration; Ex parte Aala. See also Kioa v West per Brennan J at [15].
In the Privy Council that passage was cited with approval in University of Ceylon v Fernando and again in Furnell v Whangarei High Schools Board where it was stated by
Lord Morris of Borth-y-Gest at p.679:
“Natural justice is but fairness writ large and juridically. It has been described as ‘fair play in action’.”
The same view was adopted in the House of Lords: Wiseman v Borneman (at pp.308-309, 311, 314-315).
In this Court the flexibility of the principles of natural justice was recognised by Kitto J in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation at p.504:
“What the law requires in the discharge of quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances.”
g)It was submitted that the term, the “natural justice hearing rule” simply requires the disclosure of material adverse to an applicant for comment, and the provision of an opportunity to put his or her case. In terms of Part 7 of the Act it encompasses ss.423, 424A, 425 and nothing else. It should not be taken by implication to extend further. Natural justice cannot be abrogated or restricted other than by clear words of necessary intendment (Annetts v McCann). Thus, the duty to enquire is not encompassed by s.422B or other sections in Part 7 of the Act.
Reasons
The applicant’s first ground was that the Tribunal did not afford him procedural fairness in that it failed to enquire of the applicant’s solicitor in Nigeria (Mr Agbor) what personal knowledge the solicitor had as to the circumstances of the applicant’s arrest on 15 March 2003. Mr Agbor’s letter (CB p.66) referred to the applicant’s arrest on
17 February and 15 March 2003. The applicant had been arrested on 17 February 2003 and taken to a police station at Ughelli for interrogation. The applicant’s brother had engaged, Mr Agbor, to assist the applicant. Mr Agbor was required to arrange bail for the applicant as the law in Nigeria does not permit the brother to make these arrangements (CB p.211). In the Tribunal’s decision under the heading of “Evidence at hearing”, the applicant was asked a number of questions concerning Mr Agbor and the nature of their dealings at the time of the applicant’s release from custody. The Tribunal member then made the following comment:
“I commented that a call to the telephone number in Lagos provided with a photocopied letter from Mr Agbor on 15 January 2004 provided by the applicant had been unsuccessful in finding anyone who could recall the applicant’s case, and asked whether the applicant would have any objection to the Tribunal making a further phone call to attempt to confirm these details. The applicant said he had no objection.” (CB p.211)
The Tribunal made a telephone call and recorded the details in its decision as follows:
“On 3 June to Tribunal contacted the applicant’s lawyer in Lagos, Mr C R O Agbor, by phone and Mr Agbor confirmed that he was familiar with the applicant’s case and had written the letter of 15 January 2004 concerning the applicant[s] detentions in February-March 2003, a copy of which was provided by the applicant’s adviser with his submission of 7 May 2004. As this information – i.e. the applicant’s lawyer’s confirmation of this letter – is not adverse to the applicant’s claims, it has not been referred to him for comment.” (CB p.215)
The affidavit of Mr Dagnall gave details of his examination of a cassette tape recording of a conversation between Ian Lincoln of the Tribunal and Mr Agbor. Mr Dagnall affirmed that he listened to the taped conversation which lasted for 65 seconds and an accurate record of that conversation is as follows:
“May I speak to Mr Agbor please? Hello. Mr Agbor? Is that
Mr Agbor?
My name’s Ian Lincoln. I’m calling from the Refugee Tribunal in Australia. I just wanted to ask about [the applicant]. Do you recall him?
OK. He’s given us a letter from you of the 15th of January 2004.
OK. Thank you very much for confirming that. That’s very helpful. Bye bye. Thank you. Bye bye.”
In the Tribunal’s decision under the heading of “Findings and Reasons” the member indicated the telephone call to Mr Agbor confirmed the letter of 15 January 2004 was genuine, that the detentions occurred and that the applicant was mistreated. However, the Tribunal member did not accept that the applicant’s detention arose from political activity. The Tribunal member stated in the decision:
“The letter dated 15 January 2004 from his lawyer does not make any mention of the nature of the matter about which the applicant was detained and interrogated in February 2003. The lawyer arranged his release on bail and the applicant has confirmed that no further action, such as any charge or conviction, occurred as an outcome of that first detention.” (CB p.216)
Counsel for the applicant submitted that if the Tribunal had any doubts about the content of the letter it did not resolve them on the telephone with Mr Agbor. It was submitted that the information was centrally relevant and readily available. Counsel submitted that in these circumstances the Tribunal was under a duty to make enquiries of
Mr Agbor to determine whether the applicant’s detention arose from political activities. The applicant Counsel submitted that, whether stated as an obligation arising out of a duty to accord procedural fairness or an exercise of a discretionary power in a manner that was manifestly unreasonable, the decision of the Tribunal as a result of the failure to enquire led the decision to be infected with jurisdictional error.
Sections 424 and 427 of the Act confer power on the Tribunal to obtain information but do not impose an obligation or duty to exercise such power: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB per Gummow and Hayne JJ at [43].
“… whilst s 427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so. Rather, s 426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire”.
The Tribunal has no general duty to make its own enquiries in order to make the applicant’s case: Abebe v Commonwealth per Gummow and Hayne JJ at [187]:
“… framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out”.
However, in Prasad Wilcox J suggests that where it was obvious that material was readily available which was centrally relevant to the decision to be made it would be unreasonable not to make the enquiry. At page 169-170 his Honour stated:
“The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision maker to make the applicant's case for him. It is not enough that the Court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the Court, on judicial review, should receive evidence as to the existence and nature of that information.” (Emphasis added)
This authority was followed in Luu v Minister for Immigration per Gray, North and Mansfield JJ at [28]:
“The learned judge at first instance then addressed the claims that the decisions of the respondent were unreasonable, both because he had failed to make certain inquiries which he should have made, and because the decisions were so unreasonable that no reasonable person could have made them. After referring to the limited circumstances in which a decision maker is required to make inquiries: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 per Wilcox J, his Honour noted that any duty on the decision maker to inquire is generally restricted to material that is readily available. He did not think that the inquiry for which the appellant contended, namely inquiries about the appellant’s risk of re-offending and about the risk of flight if released from immigration detention, readily fell within that class of inquiry. The inquiries suggested on behalf of the appellant involved a process of interviews and assessment about the appellant’s behaviour and possible propensities. His Honour therefore reached the view that the respondent was not required to initiate investigations into the appellant’s behaviour and actions, particularly having regard to the fact that he was at material times represented by solicitors: see the remarks of Toohey J in Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 at 170-171. His Honour, having regard to the reasons for the decisions, did not consider that the decisions were so unreasonable that no reasonable person would have made them.”
In a different context the same obligation was addressed in Eshetu per Gummow J at [137]:
“… where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way”.
The failure to make enquiries, although it may apply in only limited cases, may be an excess of power in an unreasonable manner and hence a constructive failure to exercise jurisdiction or be a breach of the rules of natural justice, whether or not it renders the ultimate decision unreasonable: Minister for Immigration & Multicultural Affairs; Ex parte Cassim per McHugh J at [12]-[14]:
“The applicant contended that the Tribunal had denied him natural justice by failing to investigate his claims that he had worked in the resort in the Eastern province and that the police letters were authentic. He asserted that the Tribunal’s failure to exercise its powers under s415(1), s424(1) and s427(1)(d) of the Act was a denial of natural justice. These provisions of the Act give the Tribunal wide discretionary powers to investigate the claims of an applicant.
Decisions and dicta in the Federal Court of Australia indicate that a failure by the Tribunal to make inquiries about the claims or the evidence of an applicant may sometimes be a breach of the rules of natural justice or render the decision unreasonable. Even if that proposition is valid, those cases and dicta recognise that the Tribunal has no general duty to make inquiries about an applicant’s claim. They declare that ordinarily the Tribunal should only make inquiries if the material is “readily available”.
Consistently with those decisions and dicta, the Tribunal had no duty to make inquiries to see whether in Sri Lanka or elsewhere there was evidence which would support the applicant’s claim for a protection visa. The powers conferred by s415(1), s424(1) and s427(1)(d) of the Act are discretionary, not mandatory ...”
Counsel for the respondent submitted that the argument that the Tribunal was under a duty to exercise its power under s.424(1) of the Act “to get information” or to make enquiries from Mr Agbor was precluded by the reasons of the Full Court in WAGJ. The decision in WAGJ concerns the parallel power to make enquiries under s.427. It was acknowledged in that decision that a failure to enquire into an issue might be indicative of some form of error and this is an issue
I will return to later in my reasons. In WAGJ, the joint judgment of Heerey, R D Nicholson and Mansfield JJ, it was stated at [24]:
“… it is clear that s427(1)(d) does not impose any legal obligation on the Tribunal. It is not a procedure ‘required by the Act’ within the meaning of s476(1)(a).”
It was further stated at [25]:
“By a parity of reasoning, it seems to us that if there is no legal obligation to make enquiries, there is no legal obligation to consider whether one should exercise that power. Moreover, there is either a legal obligation to exercise the power or there is not. If there is not, we do not agree that there could be some ‘confluence of circumstance and claim’ which somehow enlivened some dormant residual obligation under s427(1)(d).”
This line of authority was confirmed by the Full Federal Court in Minister of Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 (“VSAF of 2003”) per Black CJ, Sundberg and Bennett JJ at [20]-[21]:
“If his Honour meant that the Tribunal should have sought information from other sources available to it under s424, the existence of such an obligation is denied by a substantial body of authority. See Minister for Immigration & Multicultural
& Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (with whom Gleeson CJ agreed) and at [124] per Callinan J, Minister for Immigration & Ethnic Affairs v Singh (1997) 74 FCR 553 at 561 and SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 at [8]; SJSB v Minister for Immigration
& Multicultural & Indigenous Affairs [2004] FCAFC 225.
The respondent submitted that having identified matters it would have liked to explore, it was open to the Tribunal under s424 of the Act to obtain information it considered relevant in performance of its duty to review. That is true. But as indicated at [20], it was under no obligation to do so.”
The decisions of WAGJ and VSAF of 2003 are binding authority against any argument that failure to enquire is an error per se.
I accepted the respondent’s submissions set out in paragraph 19(e) above as being the correct approach that was required by the applicant in respect of submissions relating to the role of Mr Agbor and the information that he may have been able to relay in support of any claim that the applicant was endeavouring to establish. For the reasons
I discuss below, the applicant has not been able to demonstrate that the enquiries he claimed the Tribunal should have made would have established a significantly different outcome in the reasoning of the Tribunal. Further, the applicant had not provided the Tribunal with any evidence to support the view that Mr Agbor had a detailed or intimate knowledge of the applicant’s involvement in the political movement in the Niger Delta that the applicant was claiming. On his own evidence, Mr Agbor was not known to the applicant prior to his arrest and the only meeting that they had had was at the police station during the arrangement of bail. The applicant had never visited the offices of
Mr Agbor and there was no indication that the applicant had conveyed to Mr Agbor the details of his involvement in the political movement, nor was there any evidence that Mr Agbor was aware of the applicant from independent sources. A confirmation from Mr Agbor that the applicant had been arrested for alleged “political reason” did not substantially strengthen the case for the applicant before the Tribunal.
As indicated in paragraph 32 above, it was acknowledged in WAGJ that a failure to enquire into an issue might be indicative of some other form of error. Their Honours stated at [25] that:
“… It is conceivable that failure by the Tribunal to make some particular enquiry might be relevant to a finding by the Court on review that there was a lack of good faith and that as a consequence the Tribunal's decision was beyond jurisdiction.”
Counsel for the applicant raised the issue of “Wednesbury unreasonableness” as a ground of jurisdictional error and relied on S20/2002. This raised the question of whether manifest unreasonableness is an example of jurisdictional error, giving rise to an entitlement to prerogative relief. The doctrine applies to the exercise of discretionary powers. Considerations of reasonableness are usually focussed on the relevant state of satisfaction that the decision maker must achieve in reaching the ultimate decision. Counsel for the respondent drew the Court’s attention to the limitations in respect of Wednesbury unreasonableness as it bears upon the quality of the opinion formed by the decision maker not the decision maker’s conduct anterior to forming the opinion. The question of whether manifest unreasonableness is an example of jurisdictional error is addressed by the Full Federal Court in SFGB v Minister for Immigration & Multicultural & Indigenous Affairs per Mansfield, Selway and Bennett JJ at [19]:
“…If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error.”
Considering Wednesbury unreasonableness in isolation in respect of this case is inappropriate and the preferred approach is to consider the issue in conjunction with other areas of possible jurisdictional error. This is the approach suggested in Eshetu per Gummow J at [125]:
“… statutory review apart, ‘Wednesbury unreasonableness’ may overlap with other more clearly developed grounds for judicial review. For example, in Minister for Immigration and Ethnic Affairs v Wu Shan Liang ((1996) 185 CLR 259 at 273), it was held, with respect to the Act in an earlier form, that the determination of refugee status which was at issue in Chan v Minister for Immigration and Ethnic Affairs ((1989) 169 CLR 379) was best understood as flawed by an error of law in the application of the test of refugee status. Again, in Australian Broadcasting Tribunal v Bond, ((1990) 170 CLR 321 at 367), Deane J treated “Wednesbury principles” as being “encompassed by the obligation to act judicially in cases where that obligation exists”.
It was then stated at [126]:
“Finally, it may be that the basis of “Wednesbury unreasonableness” is found in the proposition adopted by Brennan J in Kruger v The Commonwealth ((1997) 190 CLR 1 at 36); cf the statement of the obligation to afford procedural fairness by Mason J in Kioa v West (1985) 159 CLR 550 at 584-585) that “when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised”. The result, as identified by the late Professor de Smith (de Smith’s Judicial Review of Administrative Action, 4th ed (1980), p.346), is that “an authority failing to comply with this obligation acts unlawfully or ultra vires”. Further, the decision of the authority in question may be tantamount to a refusal to exercise its discretion (see Williams v Giddy [1911] AC 381 at 385-386, an appeal from the Supreme Court of New South Wales in which the judgment of the Privy Council was delivered by Lord Macnaghten). If the matter be looked at in that way, then there appears more readily a footing for judicial review by way of prohibition or mandamus or injunctive relief under s75(v) of the Constitution in an appropriate case.”
The remaining area of review contained in the submissions was the obligation arising out of a duty to accord procedural fairness. The doctrine of procedural fairness requires that a person be afforded a fair and unbiased hearing before decisions are taken which affect them. It is part of the fabric of the common law and the only areas of doubt that arise are its scope of application and the procedures it entails. The focus of the doctrine is whether the person before the decision making body has been provided a proper opportunity to present his or her case and an opportunity to respond to any adverse material in the possession of the decision maker. The scope of procedural fairness is very much dependent on the context of its standards: Kioa v West per Brennan J at [15]:
“The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power. The variable content of the principles of natural justice was articulated by Tucker LJ in an oft-cited passage in his judgment in Russell v Duke of Norfolk [1949] 1 ALL ER 109 at 118
“The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.”
However, the doctrine of procedural fairness is not normally expanded into a general obligation “to act judicially” although some expansion has been suggested: Australian Broadcasting Tribunal v Bond per Deane J at 366, S20/2002 per Gleeson CJ at 62 [9], Plaintiff S157/2002 per Gleeson CJ at 489-490. Despite this expansion, the focus has not moved from what has been put before the decision maker for analysis as opposed to exercise of information gathering or duty to enquire. The various authorities quoted by the Counsel for the applicant in paragraph 20(f) above support this proposition.
In the applicant’s submissions (paragraph 18(e) above), the duty to accord procedural fairness was breached by the Tribunal member by not making a further enquiry of Mr Agbor as to the reasons behind the applicant’s arrest in February and March 2003. It was contended that if the Tribunal member had made a further telephone call to Mr Agbor to enquire as to the reasons for the applicant’s detention on those two occasions, then the Tribunal member could have had confirmed that the applicant had been detained because of his involvement in the political unrest associated with the Warri crisis. The weakness in this submission was that the Tribunal reached its conclusion as a result of the applicant being unable to provide a convincing and coherent explanation of the political uprising in the Niger Delta. This was reflected in the passage of “Findings and Reasons” in the Tribunal’s decision:
“However, I am unable on the basis of any of this material to be satisfied that the applicant’s detentions arose from political activity. In discussion of my concerns in this regard in the course of a lengthy hearing, the applicant re-stated his claim to have become involved in support of the public expression of the concerns of the people of the Niger Delta, but when asked for information to support that claim was not able to go beyond the provision of general information about those concerns. Nothing in that material makes any link between the applicant and the political campaign of the people of the Delta. He has not provided any documentation to support his claim to have been appointed to a committee pursuing those interests, despite the substantial material he has submitted on the issues arising in the Niger Delta and the activities of members of the community concerned about their plight.” (CB p.215)
The Tribunal member then referred to other issues discussed with the applicant during the hearing which added to the Tribunal member’s doubts as to the applicant’s credibility in respect of the ease in which he escaped detention on the second occasion and the circumstances of his departure from Lagos which ultimately led to the following conclusion:
“I find in the light of the evidence discussed above that the applicant has assembled and familiarised himself with considerable information about political activism, and repression of that activism, in the Niger Delta and has used that information as a basis for mounting an application for protection under the Convention, but that in fact he has not had any personal association with that activism. Accordingly I find that he does not face a real chance of being harmed on his return to his own country because of his political opinion.” (CB p.217)
The structure of the reasoning of the Tribunal’s decision does not readily indicate that the decision would have been substantially different had Mr Agbor been contacted and him indicating the reason or circumstances of the applicant’s detention in February or March 2003. If the telephone call had been made and the response from
Mr Agbor indicated reasons for the applicant’s arrest were due to his involvement in the political crisis of the Niger Delta, the structure of the Tribunal reasoning does not indicate that the ultimate finding of the Tribunal would have been different because of the apparent weight that the Tribunal had placed on the significance of the answers given by the applicant during the Tribunal hearing in the context of the material supplied by him and his agent to the Tribunal prior to the hearing.
I accepted the respondent’s submissions in respect of the natural justice hearing rule and rule against bias together with the operation of s.422B of the Act as set out in the respondent’s submissions and reproduced at paragraph 19(f), (g) and (h).
Conclusion
For the reasons set out above, I do not believe that either ground pleaded by the applicant that the Tribunal has committed any jurisdictional error can be sustained. The applicant’s claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 9 June 2005
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