SZEXZ v Minister for Immigration - [2005] FMCA 1407

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEXZ v MINISTER FOR IMMIGRATION

[2005] FMCA 1407

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91X, 424A, 424B, 441A, 441C, 474
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), reg.4.35

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
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 769

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte S154/2002 (2003) 210 ALR 437
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Miah (2001) 206 CLR 57
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
NAFT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 254
VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459
WAGJ v Minister for Immigration & Multicultural Affairs [2002] FCAFC 277
W389/01A v Minister for Immigration & Multicultural Affairs (2002) 125 FCR 407

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
SZECH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 246

Applicant:

SZEXZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 2233 of 2004

Delivered on:

29 September 2005

Delivered at:

Sydney

Hearing date:

7 September 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of an interpreter.

Counsel for the Respondent:

Mr J A C Potts

Solicitors for the Respondent:

Clayton Utz

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 2233 of 2004

SZEXZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 16 July 2004 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 31 May 2004 and handed down on 23 June 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on

27 February 2004 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.

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 “SZEXZ”.
The applicant, who claims to be a citizen of India, arrived in Australia on 30 December 2003. On 12 February 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-64) (“CB”). On 27 February 2004 the delegate refused to grant a protection visa (CB pp.65-79) and on 22 March 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.80-83).
The applicant is a married Sikh male born in June 1976 at Yamuna Nagar, India. He stated he can speak, read and write English and Punjabi, he had thirteen years of education and that his occupation before leaving India was a welder. The applicant’s father, mother, brother and wife remain in India. He left India legally and had no difficulties in obtaining travel documents and travelled to Botswana before his arrival in Australia (CB p.119).
In a typed statement attached to his visa application, the applicant stated he was of Sikh ethnicity and had been mistreated by the Hindu oriented Indian Government for being a Sikh and following the Sikh religion. The applicant stated that due to this mistreatment he left India in November 1999 because he was unable to bear the persecution exercised by the police and the then ruling Indian Congress political party. He stated he belonged to an agricultural family and was engaged in farming after leaving school in 1992. The applicant claimed that trouble started in 1984 when Mrs Indira Gandhi, the then Prime Minister of India, died after being shot by a Sikh. He stated that in the aftermath of the killing of Mrs Gandhi riots broke out targeting Sikh nationals and that at that time he was a boy of 7 years of age but he can still remember how the Hindus looted their house and set fire to it. The applicant stated that his family fled in terror to the Punjab (CB p.120).
In the Punjab the applicant claimed that he and his family suffered adverse attention from the police after they were forced to provide food to armed Sikh militants. He claimed that he and his father were beaten by the police and then imprisoned. The applicant stated they were subsequently released but subjected to further detention on numerous occasions at the whim of the police. The applicant claimed that in 1989/1990 he and his family relocated again to Haryana. He claimed that they were supporters of the Bharatiya Janata Party (“the BJP”) and in 1992 his father was elected to an office within the party at district level. Due to their support of the BJP, the applicant and his family were considered enemies of the Congress Party and received threats from it. When the Congress Party came to power in 1995 false chargers were filed against the applicant in the Courts. He claimed he was released on bail and Congress Party members assaulted him and tried to kidnap him. The applicant claimed he was subsequently stabbed by Congress Party members and continuously threatened over the telephone and the police refused to assist him. The applicant said when he did not attend court the police started harassing him and his family and he decided to hide with relatives in Uttar Pradesh (CB pp.121-122).
The applicant claimed he departed India for South Africa in 1999 and then went to Botswana. He returned to India in September 2002 and was married in the Punjab where he stayed for approximately three months. The applicant claimed that he found the situation had not improved and he returned to Botswana where he stayed for approximately 8-10 months before travelling to Australia. He claimed that the police in Haryana continued to inquire about his whereabouts.

The Tribunal’s findings and reasons

The Tribunal reviewed the claims and evidence put before it and also considered certain independent country information. The Tribunal noted that it was common for applications for refugee status to yield to the temptation to embroider their accounts to boost their prospects to gain a visa. However, the applicant in this case went beyond embroidery and inconsistencies were noted between the oral and written evidence and also the evidence given at the hearing.
The Tribunal found the applicant was not a credible witness and rejected all of his claims. Further, the Tribunal found that the applicant had not experienced past persecution owing to a Convention reason nor did the Tribunal find that the applicant was likely to face a real chance of persecution should he return to India now or in the foreseeable future (CB pp.137-138).

Application for review of the Tribunal’s decision

On 16 July 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) which contained no grounds. On 5 January 2005 the applicant filed an amended application which contained 15 grounds of review, each of which is addressed under the heading of “Reasons” below.

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 (“Applicant 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 Applicant 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.

Submissions

The applicant appeared self represented with the aid of a Punjabi interpreter. The applicant had attended a directions hearing on

19 October 2004 and consented to Short Minutes of Order which included the filing and serving of submissions fourteen (14) days prior to the hearing. This order was not complied with. At the hearing when the applicant was invited to make oral submissions he briefly restated his claim for refugee status. He also expressed his concerns regarding the ill health of his elderly father in India and the outstanding false criminal charge against him concerning a motor vehicle accident in which someone was killed. The applicant stated he had provided the delegate and the Tribunal with a number of documents relating to his case and had not brought anything to Court. The applicant confirmed he had filed an amended application and an affidavit and that he relied upon those two documents.
Mr J A C Potts of Counsel, appearing for the respondent, filed written submissions prior to the hearing which were supplemented by detailed and helpful oral submissions at the hearing. Mr Potts addressed each of the grounds in his submissions and with the exception of Ground 10 I substantially rely on those submissions which are to a significant extent reproduced under the heading of “Reasons” below. Ground 10 raised a significant jurisdictional issue and is addressed in detail in the latter part of the Reasons.

Reasons

Ground 1

The applicant’s first ground of review was stated as follows:
“The applicant is a citizen of India. If the applicant is deported from Australia he will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees.”
This ground seeks nothing more than merits review and should be rejected: Minister for Immigration & Ethnic Affairs v Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at [31]:
“… any court reviewing a decision upon refugee status must beware of forming a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”

Ground 2

The second ground of review was stated as follows:
“The Tribunal erred in law in arriving at the decision to affirm the respondent’s decision not to grant the applicant a protection visa.”
Absent particulars, of which there were none, the ground was so broadly framed that it was virtually meaningless. No error of law is apparent on the face of the Tribunal’s reasons. In any event, mere error of law is insufficient to entitle the applicant relief. The applicant must demonstrate an error going to jurisdiction and no such error is apparent. The ground should therefore be rejected.

Ground 3

The third ground of review was stated as follows:
“The Tribunal’s decision involved jurisdictional error affecting the decision which is subject to this application in that:
a.it asked itself the wrong questions that seemed biased and did not pay heed to the information provided by the applicant.
The applicant did not identify what the “wrong question” he claimed the Tribunal asked itself was, nor did he identify where and how the Tribunal asked itself this question. It is plain that the Tribunal correctly addressed the matters it was required to by law. There is absolutely no foundation for any allegation of bias. A party alleging actual bias on a decision-maker’s part carries a heavy onus. The allegation must be “distinctly made and clearly proved”: see Minister for Immigration & Multicultural Affairs v Jia per Gleeson CJ at 531 and per Kirby J at 546. The submission of the applicant advanced no steps in clearly proving bias. As for the assertion that the Tribunal did not pay heed to the information provided by the applicant, this is plainly belied by the careful examination of the evidence provided by the applicant that appears in the Tribunal’s reasons. This ground should be rejected.

Ground 4

The fourth ground of review was stated in the following terms:
“The Tribunal misinformed itself of the particular circumstances of the applicant and incorrectly applied the test to determine the status of refugee.”
It was difficult to understand what was meant by the assertion that the Tribunal “misinformed itself”. The Tribunal was entitled, pursuant to s.424, to obtain information from any source that it chose, subject to an obligation to have regard to the information it obtained. As for the assertion that the Tribunal incorrectly applied the test to determine the status of a refugee, the applicant did not explain in what way the Tribunal misapplied the relevant test. The Tribunal in fact stated the relevant test in unobjectionable terms (CB pp.117-119) and then applied that test. The Tribunal did not err as alleged and this ground should be rejected.

Ground 5

The fifth ground of review was stated as follows:
“The Tribunal erroneously applied information stated to be from “The Country Information Services Report” and relied on this information as matters of fact.”
There can be no objection to the Tribunal relying on relevant country information. As the Full Court held in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs (“NAHI”) at [11]:
“The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”
This ground should be rejected.

Ground 6

The sixth ground of review was stated as follows:
“The Tribunal erroneously rejected that there was no real chance that the applicant would be attacked or face further persecution if he was to return to his country.”
Again this ground impermissibly seeks merits review. To engage in fact finding about the merits of the applicant’s case is not part of the function of this Court in deal with an application for relief under s.39B of the Judiciary Act 1903 (Cth). It is necessary for the applicant to show jurisdictional error on the part of the Tribunal if he is to succeed. Whatever the boundaries of jurisdictional error are they do not comprehend errors of fact as to the merits of the case put to the Tribunal: NAHI at [10]. This ground of review should be rejected.

Ground 7

The seventh ground of review was stated as follows:
“The Tribunal asked wrong questions in assessing the applicant’s fear and in most asked questions that was leading the applicant to give answers that could be construed by the Tribunal that the applicant was not at risk.”
It was not clear whether when the applicant noted the Tribunal asked “wrong questions” he was referring to what transpired at the hearing or to the Tribunal’s substantive consideration of his case. The remaining parts of this ground suggested the former, although it was far from clear. To the extent that the applicant complained of what transpired at the hearing, he has put forward no evidence of any weight in that regard. There was no evidence to substantiate this ground and it should be rejected.

Ground 8

The eighth ground was stated as follows:
“The Tribunal did not ask the applicant questions directly in relation to the claims of the applicant. Instead the Tribunal approached the line of questioning in the same manner in which it dealt with one or at least two other RRT hearings with which I have proof of.”
There was no evidence of what transpired at the Tribunal hearing. In any event, the subject matter of the Tribunal’s questions was a matter for the Tribunal. The fact that “the line of questioning” may have been similar to other Tribunal hearings is irrelevant and there is, in any event, no proof of this. This ground of review should be rejected.

Ground 9

The ninth ground of review was stated as follows:
“The Tribunal wrongly assumed that the applicant would not suffer Convention based persecution.”
The Tribunal did not make assumptions. It made findings as to its state of satisfaction as to whether or not the applicant met the criteria for the grant of a protection visa. This ground seeks nothing more than merits review and should be rejected.

Ground 10

The tenth ground was stated as follows:
“The applicant was not accorded procedural fairness:
Particulars
i.The applicant was spoken to and presented verbal information that was ambiguous and misleading.
ii.The applicant was not given proper opportunity to present their case in light of this ambiguous and misleading information.
iii.The Refugee Review Tribunal did not comply with section 424B and 425 of the Migration Act 1958.
iv.The Tribunal proceeded to make the decision without regard to any further relevant information or without stating to the applicant that it had come to the stage where it would make a decision and that the applicant had a last opportunity in negating anything that the Tribunal had presented.”
Mr Potts for the respondent made the following written submissions in response to Ground 10 as follows:
a)Section 442B applied in this case. Any alleged failure to provide procedural fairness must be considered in light of that section. The first particular was unsupported by any evidence whatsoever. The second particular was to some degree dependent on the first, but any suggestion that the applicant was denied an opportunity to present his case was an allegation without any foundation. The applicant was repeatedly invited to put anything he wished in writing (CB pp.85.4, 86-87 and 89.10). He was invited to and attended an oral hearing. The applicant had every opportunity to put his case.
b)With respect to the third particular, the applicant did not identify how he says ss.424B and 425 were breached. It does appear that s.424B(2) was breached, in that the letter sent on 5 April 2005 (CB pp.86-87) asked for further information in writing by 21 May 2004. Subsection 424B(2) required that further information be given within a period specified in the invitation, being a prescribed period (for construction of the word “within” in the context of s.424B(3) see: SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs at [49]-[51]). The period prescribed was 14 days: reg.4.35(3) of the Migration Regulations 1994 (Cth) (“the Regulations”). The letter sent on 5 April 2005 was deemed to have been received by 16 April 2004: see s.441C. That meant that the prescribed period expired on 30 April 2004. It was submitted, however, that the breach was not a jurisdictional error. The Tribunal had power to extend the period for provision of the information: see s.424B(4), and the prescribed period of extension was 28 days: see reg.4.35B(2). If such an extension had been granted it would have taken the period for compliance beyond the date set, viz: 21 May 2005. Even if such an error was jurisdictional, the Court would decline to grant relief in the exercise of its discretion. It was submitted there was no breach of s.425 as the Tribunal had invited the applicant to appear at a hearing and the applicant did appear.
c)The fourth particular was without substance. The Tribunal was not obliged to expose its reasoning process or subjective determinations for comment to the person affected: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte S154/2002 at [54]; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd at 591. Neither was the Tribunal required by the rules of procedural fairness to give the applicant a running commentary on his prospects of success so that there was a full warning of all possible reasons for failure: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Miah at [31]. This ground of review should be rejected.

The one issue of substance contained within this ground was raised in the third particular:
iii.The Refugee Review Tribunal did not comply with section 424B … of the Migration Act 1958.
In contrast to the balance of the ground, that appears to be an assertion that is well-founded and I was greatly assisted by the oral submissions of Mr Potts in an examination of the material that makes good that proposition. On 5 April 2004 the Tribunal wrote to the applicant with the following request:
“The Tribunal requests that you provide the following additional information: ….” (CB pp.86-87)
The Tribunal then listed in paragraphs numbered 1-8 certain categories of information that the Tribunal requested the applicant provide. Immediately following these paragraphs the letter continued:
“This information is to be provided in writing and must be received at the Tribunal by 21 May 2004.”
Section 424B of the Act relevant to this proposition states:
(1)If a person is:
(a)invited under s.424 to give additional information; or
(b)…
(2)If the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3)…
(4)If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
(5)…
The relevant prescribed periods for an invitation to comment and give additional information under s.424B is contained in reg.4.35.
(1)This regulation applies, for subsection 424B (2) of the Act, if a person is invited to give additional information, or to comment on information, other than at an interview.
(2) …
(3)If:
(a)…
(b)the information or comment to which the invitation relates is to be provided from a place in Australia;
the prescribed period for giving the information or comments starts when the person receives the invitation and ends at the end of 14 days after the day on which the invitation is received.
In respect of any extension of time that is given to the applicant under s.424B(4), the relevant regulation is 4.35B:
(1)This regulation applies, for subsection 424B (4) of the Act, if:
(a)a person is invited to give additional information, or to comment on information, within a period prescribed in regulation 4.35; and
(b)the invitation is to give the information or comments other than at an interview; and
(c)the prescribed period is to be extended by the Tribunal.
(2)If the information or comment to which the invitation relates is to be provided from a place in Australia, the period by which the Tribunal may extend the prescribed period starts when the person receives notice of the extended period and ends at the end of 28 days after the day on which the notice is received.
(3)…
(4)…
The effect of s.424B(2) using as it does the word “within” is that the information or comments are to be given within a period specified, being a prescribed period or, if no period is prescribed, a reasonable period. Sections 441A and 441C are the relative deeming provisions in the Act which establish the relevant periods taken to deliver documents from the Tribunal to the nominated recipient.
Section 441A
(1)For the purposes of provisions of this Part or the regulations that:
(a)require or permit the Tribunal to give a document to a person (the recipient ); and
(b)state that the Tribunal must do so by one of the methods specified in this section;
the methods are as follows.
Giving by hand
(2)…
(3)Another method consists of a member, the Registrar or an officer of the Tribunal, or a person authorised in writing by the Registrar, handing the document to another person who:
(a) is at the last residential or business address provided to the Tribunal by the recipient in connection with the review; and
(b)…
(c)…
Section 441C
(1)This section applies if the Tribunal gives a document to a person other than the Secretary by one of the methods specified in section 441A (including in a case covered by section 441AA).
Giving by hand
(2)…
(3)…
Dispatch by prepaid post or by other prepaid means
(4)If the Tribunal gives a document to a person by the method in subsection 441A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a)if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b)…
The effect of s.424B(2) and reg.4.35, together with ss.441A and 441C, was that the Tribunal should have given 14 days after the date of receipt of the letter for the applicant to reply. The letter was sent on

5 April 2004 and was deemed to have been received on 16 April 2004 (taking into account that this period transversed the Easter holidays in 2004). The Tribunal should have invited the information to be provided by 30 April 2004, where in fact the letter sent on 5 April 2004 required the information to be submitted prior to 21 May 2004. On the same day, the Tribunal forwarded a second letter, requesting information from the applicant regarding Botswana and South Africa, which correctly sought a response by 30 April 2004 (CB p.88). The Tribunal applied the provisions of the regulations and the Act to the second letter but not the preceding letter of the same date (CB pp.86-87). In any event, instead of requesting the information from the applicant by 30 April 2004 the Tribunal requested the information by 21 May 2004. Had it chosen, the Tribunal pursuant to s.424B(4) could have extended the prescribed period for information to be supplied for a further prescribed period. That is from 30 April 2004 up to and beyond the end of May 2004. In addition, a further extension of the prescribed period could have been made which would have taken the date beyond May 2004 into some time in June 2004. That did not actually take place and the breach of s.424B(2) and reg.4.35(3) remained on its face. The question to be resolved was whether the breach was a jurisdictional error as opposed to a non jurisdictional error.
Counsel for the respondent referred me to the recent High Court decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs as the most recent discussion by the High Court as to how one ascertains whether a breach of the Act is a jurisdictional error or not. In the judgment of McHugh J at [38] his Honour identifies four issues, the third of which is relevant:
(3)Whether, if breach of either s 424A or the general law obligation to accord procedural fairness is established, the decision of the Tribunal is affected by jurisdictional error such as to invalidate the decision and to permit the grant of relief.
In relation to s.424A his Honour noted at [44]:
“Breach of the provision will lead to invalidity only if that is the legislative intention.”
Further, at [72] his Honour stated:
“Jurisdictional error may arise where a decision-maker fails to discharge "imperative duties" or to observe "inviolable limitations or restraints" found in the Act. To determine whether a decision under the Act involves a jurisdictional error, it is necessary to take two steps. First, it is necessary to determine the limitations and restraints found in the Act. Secondly, it is necessary to attempt, through statutory construction, to reconcile them with s 474 of the Act to ascertain whether failure to observe any particular procedural or other requirement in the Act constitutes an error which has resulted in the decision-maker failing to exercise or exceeding its jurisdiction.”
At [77] his Honour discusses the application of that test:
“However, because the Act compels the Tribunal in the conduct of the review to take certain steps in order to accord procedural fairness to the applicant for review, before recording a decision, it would be an anomalous result if the Tribunal's decision were found to be valid, notwithstanding that the Tribunal has failed to discharge that obligation. It is not to the point that the Tribunal may have given the applicant particulars of the adverse information orally. It is also not to the point that in some cases it might seem unnecessary to give the applicant written particulars of adverse information (for example, if the applicant is present when the Tribunal receives the adverse information as evidence from another person and the Tribunal there and then invites the applicant orally to comment on it). If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function. There can be no "partial compliance" with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not.”
Gummow J concurs with the conclusion reached by McHugh J. Gummow J at [136] stated:
“Seen in its proper place in the procedural chain specified in Div 4, s 424A mandates the fairness in the treatment of applicants for review which is an inviolable requirement attaching to the exercise of the jurisdiction of the RRT attracted by s 414 and continuing through to the preparation of the written statement of decision under s 430. It thus answers the description of an imperative duty to observe the stipulations of the Act and entailing review for jurisdictional error under s 75(v) of the Constitution or s 39B of the Judiciary Act.”
Kirby J deals with this issue at [173]:
“Nevertheless, is breach of s 424A sufficient to establish jurisdictional error necessary for relief in this case? Because of the mandatory language of s 424A ("must") and the provisions of Pt 7, Div 4, I agree with Hayne J that the breach is sufficient to constitute jurisdictional error, as that opaque expression has been interpreted. An imperative obligation for the conduct of a review by the Tribunal has not been complied with. The will of the Parliament must be obeyed. The resulting decision of the Tribunal is not, therefore, one protected by the Act from judicial review in the Federal Court.”
In the judgment of Hayne J at [203], his Honour poses the question:
“Did the failure to comply with s 424A constitute jurisdictional error?”
Then at [205] his Honour stated:
“The focus of the inquiry about jurisdictional error must be upon the combined operation of s 414(1) (which obliges the Tribunal to review the decision) and s 415 (which gives the Tribunal the same powers and discretions as are conferred by the Act on the primary decision-maker). It is the validity of the act done in purported performance of the obligation to review and decide which is in issue. The question is, having regard to "the language of the relevant [provisions] and the scope and object of the whole statute", is it "a purpose of the legislation that an act done in breach of [s 424A] should be invalid"? That is, is the Tribunal's decision to affirm the refusal of protection visas to the appellants invalid for want of compliance with s 424A?”
His Honour then at [206] refers to the language of s.424A as being imperative. A Tribunal must take the several steps it prescribes. Then he contrasts that imperative language that stands in sharp contrast with the permissive terms of, for example, s.424.
“The language of s 424A is, of course, imperative: "the Tribunal must" take the several steps it prescribes. That imperative language stands in sharp contrast with the permissive terms of, for example, s 424 which says that "the Tribunal may" take various steps.”
Further, at [208] his Honour stated:
“Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid. Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.”
I believe I have two tasks to perform. Firstly, it is an exercise of construing the provisions that have been breached within the scheme of the Act and the Regulation as a whole. Secondly, to decide whether they are imperative duties or enviable obligations where the Parliament has intended the breach of those obligations will lead to invalidity of the entire decision.
In the decision of SAAP the language of s.424A uses the word “must” which played a significant part in the decision of the High Court to view that a breach of that section was a jurisdictional error. In s.424B(2) the language is cast in neutral terms. The section simply requires that the information or comments “are to be given” which is certainly a more neutral term than the wording of s.424A which contains the word “must”. I am assisted in this respect by the decision of his Honour Sackville J in SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs where his Honour is considering the operation of s.424B. At [50] his Honour notes:
“The object of the provision is evidently to ensure that the required interview takes place within a reasonably short period after the invitation is extended.”
However, I note, due to the circumstances peculiar to that decision, his Honour concluded it was not necessary to decide whether on the reason of the majority in SAAP a contravention of s.424B(3)(b) of the Act constitutes a jurisdictional error and stated the issue should be left to a case in which the Court had the benefit of full argument on that point.
The purpose of s.424B is designed to ensure that the due process occurs at a reasonable rate. That is in strict contrast to s.424A which is concerned with the much more substantively important issue, which is that procedural fairness be given to the applicant. Given the enactment of s.424B which now codifies the obligation of procedural fairness within that part of the Act, the language is different and the purpose is different. The manner in which the section and the regulations are cast is such that, viewed in the context of the Act as a whole, it is sufficiently plain that it was not the legislative intent that a breach in that time period would lead to the entire invalidity of a decision made following a breach of that section. The structure of the section permits the Tribunal to have extended the period beyond the time which is actually allowed to the applicant in this case. The language of subsection (4) is such that it allows the Tribunal to extend the period of compliance on more than one occasion.
The language used in s.424A is expressed in mandatory terms with an intent of the Parliament that is unconditional or absolute in nature. That has been confirmed by the High Court decision in SAAP. Section 424B, although mandatory in nature, has a different intent and contains a number of discretionary elements. The requirement of the reply is expressed as being either a prescribed period or alternatively a reasonable period. The term “reasonable” has been the subject of very considerable judicial consideration that has resulted in the conclusion that it defines the subject in less than absolute terms. Subsection (4) of the section permits the Tribunal to extend the period for a “prescribed further period”. The section does not specify the circumstances in which the Tribunal is granted that power nor is there a requirement to comply with or state the precise reasons for that extension. Subsection (4) does not limit the Tribunal in the number of extensions that it may grant or alternatively expressed it does not specify a number of extensions. There are a number of elements within the drafting of s.424B which take it outside the parameters of an absolutely mandatory requirement as those expressed by the Parliament in s.424A.
Counsel for the respondent in his oral submissions directed my attention to another section of the Act which contains mandatory language. However, despite the use of that language it has been held by both the High Court and the Full Federal Court that a breach of that section is not jurisdictional error. The relevant section is s.430:
(1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(a)sets out the decision of the Tribunal on the review; and
(b)sets out the reasons for the decision; and
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based.
(2)…
(3)Where the Tribunal has prepared the written statement, the Tribunal must:
(a)return to the Secretary any document that the Secretary has provided in relation to the review; and
(b)give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based
This section obliges the Tribunal to prepare a written statement setting out its reasons for decision and contains mandatory language in the form “the Tribunal must”. It has been held by both the High Court and the Full Federal Court in NAFT v Minister for Immigration & Multicultural & Indigenous Affairs where the applicant made reference to the Tribunal’s failure to comply with s.430 and s.420(2)(b). The Full Court per Spender, Hely and Bennett JJ held at [7]:
“…even if a breach of these sections were established, it would not amount to jurisdictional error (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323)”.
The respondent’s submission was that it cannot be said that there is any presumption one way or the other that a second section breached will or will not amount to a jurisdictional error becomes a different question of construction in each and every case. I accept the submissions of the respondent and notwithstanding there is a breach of s.424B(2) that breach did not amount to a jurisdictional error and does not entitle the applicant to relief in this case.

Ground 11

The eleventh ground of review was stated as follows:
“The making of the decision of the Tribunal was an improper exercise of the power conferred by the Migration Act 1958.
a.The respondents wrongly refused to take the following relevant considerations into account in the exercise of power:
Particulars
i.The total disregard to the status of the applicant’s fear;
ii.The general country information without consideration of the facts of the case with particular reference to the applicant’s perceived fear;
iii.The information provided by the applicant to substantiate his claims;
b.The respondents wrongly failed to take into account the following relevant considerations into account in the exercise of power:
Particulars
i.The political affiliations of the applicant in light of the claims made by him;
ii.The independent information provided by the applicant;
iii.To independently investigate the applicant’s evidence of fear that he would be persecuted.
Although presented as a failure to take into account relevant considerations, the particulars to this ground reveal it was in reality a challenge to the merits of the decision. Ground a, particular (i) is, read literally, nonsensical but seems to suggest that the Tribunal disregarded the applicant’s claimed fear. The Tribunal did not disregard his claimed fear but simply held that the applicant did not have any subjective fear. The Tribunal’s use of country information was unobjectionable. It did not apply it in disregard of the applicant’s claims. The Tribunal plainly did not disregard the information provided by the applicant but referred to it at length. The Tribunal considered the applicant’s claimed political affiliations and considered the documents, (presumably the “independent information” referred to by the applicant).

As for the suggestion that the Tribunal failed to “independently investigate”, it was under no obligation to do so. It was for the applicant to place such material as was necessary to persuade the Tribunal of his claims before the Tribunal. The Tribunal was under no obligation to verify or investigate the applicant’s claims. The Tribunal had no duty to investigate nor any duty to consider utilising such permissive statutory powers as it had which might enable it to investigate: see s.427(1)(d); VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [27]; WAGJ v Minister for Immigration & Multicultural Affairs at [21], [24]-[25]; W389/01A v Minister for Immigration & Multicultural Affairs at [74]-[78]. This ground of review should be rejected.

Ground 12

The twelfth ground of review was stated as follows:
“The Tribunal incorrectly applied the internal flight principle and without regard to the evidence erroneously assumed that the applicant could relocate elsewhere in India without paying particular attention to the applicant’s personal claims.”
The simple answer to this ground is that the Tribunal made no relocation finding and this ground should therefore be rejected.

Ground 13

The thirteenth ground of review was stated as follows:
“The Tribunal disregarded the claims of the applicant that he was also claiming persecution due to his political affiliations and his fears of reprisals from his foes. Instead the Tribunal put a different spin on the political claims and erroneously used country information to negate the applicant’s claims.”
There is an internal consistency in this ground. On the one hand the applicant asserts that the Tribunal disregarded the applicant’s claimed fear of persecution on political grounds. Yet, on the other hand, the applicant claimed the Tribunal put a “spin” on these claims and erroneously used country information to “negate” them, both of which suggest that they were in fact considered. The political claims were clearly considered (CB p.137). The first respondent does not understand what is meant by the “Tribunal put[ting] a spin” on these claims. The Tribunal’s use of country information was unobjectionable: NAHI at [11]. This ground should be rejected.

Ground 14

The fourteenth ground was stated as follows:
“The respondent exercised the power in accordance with a policy without regard to the merits of the applicant’s case:
Particulars
i.The Tribunal followed the policy of accepting country information without having regard to the individual circumstances of the applicant.
ii.At no stage in the proceedings or after the proceedings did the Tribunal extend an invitation to receive a copy of the country information so that the applicant could appraise himself of it and if need be mount a defence to the information provided by the Tribunal.”
There was nothing in the Tribunal’s reasons that suggest it had applied some inflexible policy to uncritically accept country information without regard to the circumstances of the case. The Tribunal’s reasons evidence a careful consideration of this applicant’s individual circumstances. The Tribunal was under no obligation to give the applicant a copy of the country information it relied upon. Section 422B applied in this case, and s.424A did not apply to such country information as s.424A(3)(a) applied to such information and excluded it from the operation of s.424A(1): Minister for Immigration & Multicultural & Indigenous Affairs v NAMW and QAAC of 2004 v Refugee Review Tribunal at [26]-[30].
The operation of ss.422B and 424A excluded any other common law obligation of procedural fairness which required this information to be put to the applicant for comment: SZECH v Minister for Immigration & Multicultural & Indigenous Affairs at [34]. In any event, according to the only evidence before the Court, independent information was put to the applicant at the hearing and his comments invited (CB pp.129-130).

Ground 15

The fifteenth ground was stated as follows:
“The Tribunal breached the rules of natural justice in connection with the making of the decision:
Particulars
i.The applicant was given ambiguous information.
ii.The Tribunal proceeded to make the decision without giving the applicant the opportunity to be heard.
iii.The Tribunal proceeded to make the decision without further relevant information being provided to the applicant or inviting the applicant to provide further information in light of the direction that the hearing took.
iv.The Tribunal dealt with the applicant’s case in the same manner and asked the applicant the same questions as it did to at least one other case that can be proven to the court if required.”
Again, it must be remembered in considering this ground of review that s.422B applied in this case. The applicant did not identify the so called “ambiguous information” let alone prove it was given to him by the Tribunal. The allegation that the applicant was denied an opportunity to be heard has been dealt with above and is plainly without substance. The applicant did not identify the “further relevant information” he says should have been provided to him. No breach of s.424A is apparent on the material before the Court. The Tribunal was under no obligation to invite the applicant to provide further information. The assertion that the Tribunal should deal with the applicant’s case in the same manner and ask the same questions as in other cases is both unproven and irrelevant.
During the applicant’s oral submissions, he raised two issues that were not formally pleaded or particularised in this amended application. However, I granted the applicant leave to add these two new grounds to his amended application. The first ground, which I will refer to as Ground 16, stated:
“The Tribunal did not see all my documents carefully.”
This was an unsubstantiated assertion. In the decision under the heading “Claims and Evidence” the Tribunal referred to a range of material it had before it and included references to documents provided by the applicant (CB p.119). The applicant has not identified any particular document or documents which he says were provided to the Tribunal and to which the Tribunal paid no attention. The Tribunal noted that it considered all the material in some detail. The claims in the documentary material put before it by the applicant, referred firstly to the documentary material provided in response to the Tribunal’s ss.424 and 424A letters (CB p.122) and then referred to four documents the applicant provided the Tribunal (CB p.123). Under the heading “Hearing before Tribunal held on 21 May 2004” there was some discussion at the hearing with the applicant regarding the documents he had provided. In the absence of any submissions or particularisation of this ground, it is difficult to conclude the Tribunal failed to consider that material and that argument cannot be sustained.
The second ground raised orally by the applicant during his submissions, which I shall refer to as Ground 17, stated:
“The Tribunal did not consider on my case carefully.”
The substance of that ground was belied by the fact that the Tribunal had taken 22 pages to carefully analyse the claim and evidences put before it. It cannot be said that the Tribunal failed to undertake its obligation to properly review the decision under consideration.

It clearly embarked upon a review of the substance and consideration of the material before it in some detail and with a view of asking itself the direct questions. This ground of review was a mere bare assertion which was unsupported by any evidence and cannot be sustained.

Conclusion

For the reasons set out above, I am unable to identify any ground that the Tribunal has committed any jurisdictional error. 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 sixty (60) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 29 September 2005