SZGCK v Refugee Review Tribunal

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGCK v REFUGEE REVIEW TRIBUNAL & ANOR [2006] FMCA 1575
MIGRATION – RRT decision – Bangladeshi fearing political and religious persecution – claims disbelieved by Tribunal – confidential “dob‑in” material on Departmental files – Tribunal disclaimed reliance during hearing – not disclosed to applicant – no apprehension of bias – no denial of procedural fairness – no breach of s.424A(1) – application dismissed.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 414, 415, 418(3), 421, 422, 424A, 424A(1), 424A(3)(b), 438, 483A, Pt.8

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155
Applicant S416 of 2003 v Refugee Review Tribunal [2003] FCA 1630
Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 741; [2003] FCA 437
Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs(2005) 222 ALR 411, [2005] HCA 72
Crowley v Holmes & Ors (2003) 132 FCR 114
Holmes v Mercado (2000) 111 FCR 160
Kioa v West (1985) 159 CLR 550
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572
Minister for Immigration & Multicultural & Indigenous Affairs v VEAL (2004) 138 FCR 84, [2004] FCAFC 179
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601, [2002] HCA 30
NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 89
NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
SZAYW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 49
SZCNP v Minister for Immigration & Multicultural Affairs [2006] FCA 1140
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214
SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801
SZEPZ v Minister for Immigration & Anor [2005] FMCA 1614
SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195
SZFIR v Minister for Immigration & Anor [2006] FMCA 1451
SZGNY v Minister for Immigration & Anor [2006] FMCA 1142

Applicant: SZGCK
First Respondent: REFUGEE REVIEW TRIBUNAL
Second Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
File Number: SYG955 of 2005
Judgment of: Smith FM
Hearing date: 10 August 2006
Date of Last Submission: 28 August 2006
Delivered at: Sydney
Delivered on: 16 November 2006

REPRESENTATION

Counsel for the Applicant:
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Details
Case
[2006] FMCA 1575
Decision Date

CaseChat Overview and Summary

In the matter of SZGCK v Refugee Review Tribunal, the applicant sought judicial review of a decision made by the Refugee Review Tribunal, which had upheld a previous decision to refuse the grant of a protection visa. The High Court was asked to consider the procedural fairness of the Tribunal's decision-making process and whether there was any apprehended bias on the part of the Tribunal member, Mr Hardy. The applicant argued that the Tribunal had failed to disclose and allow him to respond to confidential material which was relevant and significant to the decision, and that Mr Hardy's handling of this material might give rise to a reasonable apprehension of bias. Additionally, the applicant claimed there were breaches of the Tribunal's statutory obligations to invite written comments on certain matters.

The central legal issues before the court involved the principles of procedural fairness and whether the Tribunal had properly applied these principles in its handling of confidential and potentially prejudicial material. The court needed to determine whether the Tribunal's disavowal of reliance on this material excused the failure to disclose it, and whether Mr Hardy's actions in relation to this material warranted a finding of apprehended bias. The court also had to examine whether there were breaches of statutory obligations under s.424A(1) of the Migration Act.

The High Court held that the Tribunal's disavowal of reliance on the confidential material did not excuse the failure to disclose it, as the principles of procedural fairness require that the decision-maker must consider all relevant information before reaching a decision. The court clarified that information is "credible, relevant, and significant" if it cannot be dismissed from consideration by the decision-maker before making the decision. The Tribunal's statement that it gave no weight to the material did not demonstrate that there was no obligation to reveal the information to the applicant and give him an opportunity to respond. Therefore, the court found that the Tribunal's failure to disclose and allow the applicant to respond to the material constituted a failure of procedural fairness. The court also found no reasonable apprehension of bias on the part of Mr Hardy, and that there were no breaches of the Tribunal's statutory obligations under s.424A(1).

The court dismissed the application and ordered that the confidential exhibit and the applicant's supplementary confidential submissions be returned to their respective solicitors.

Orders

Orders of the court

1.

Application dismissed.

2.

Confidential Exhibit R3 must be returned forthwith to the possession of the solicitor for the second respondent.

3.

The applicant’s “supplementary confidential submissions” must be returned forthwith to the possession of the solicitor for the applicant.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In that case, the Tribunal’s decision was set aside on grounds of failure of procedural fairness, and not apprehended bias. The Tribunal had disclaimed in its statement of reasons any reliance upon a “dob‑in” letter which had not previously been revealed nor put to the applicant in any manner. The majority in the Full Court allowed the Minister’s appeal from Merkel J. They referred to statements by Brennan J in Kioa suggesting that not every adverse piece of information requires disclosure, and said at [78]: Where a decision-maker says at the time of the decision that adverse information has not been taken into account, such a statement is not to be set at nought simply because a judge subsequently considers such information and decides that it is credible, relevant and significant to the decision. It is difficult to see how such information could be significant to a decision if no regard were paid to it in reaching the decision. The underlying rationale for any necessity of disclosure remains that explained by Lord Denning in Kanda. Of course a disavowal of reliance need not be accepted by a court, but in most cases that will require the person aggrieved by the decision to adduce evidence to show why the disavowal should not be accepted. (emphasis in original) On appeal, the High Court considered that this revealed a misapprehension of principle. They said: “Credible, relevant and significant”? [16]What is meant by “adverse information that is credible, relevant and significant to the decision to be made”? As is always the case, what is said in reasons for judgment must be understood in the context of the whole of the reasons. Examining sentences, or parts of sentences, in isolation from the context is apt to lead to error. In particular, what Brennan J said about “information that is credible, relevant and significant” takes its meaning from the point his Honour had made only a few sentences earlier: that “[a]dministrative decision‑making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made”. Moreover, what is meant by “credible, relevant and significant” must be understood having regard also to the emphasis that his Honour had given earlier in his reasons to the fundamental point that principles of natural justice, or procedural fairness, “are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise”. Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision‑maker must do in the course of deciding how the particular power given to the decision‑maker is to be exercised. They are to be applied to the processes by which a decision will be reached. (emphasis in original) [17]It follows that what is “credible, relevant and significant” information must be determined by a decision‑maker before the final decision is reached. That determination will affect whether the decision‑maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision‑maker as not credible, not relevant, or of little or no significance to the decision to be made. “Credible, relevant and significant” must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision‑maker before making the decision. And the decision‑maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is “credible, relevant and significant” are not to be understood as depending upon whatever characterisation of the information the decision‑maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached. [18]It follows that the tribunal’s statement, that it gave no weight in reaching its decision to the letter or its contents, does not demonstrate that there was no obligation to reveal the information to the appellant and to give him an opportunity to respond to it before the tribunal concluded its review. Deciding that it could reach its conclusion on other bases did not discharge the tribunal’s obligation to give the appellant procedural fairness. (citations omitted)

Ratio Decidendi

Legal Principle Established

This is an application filed on 18 April 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 28 February 2005 and handed down on 22 March 2005. The Tribunal, constituted by Mr Hardy, affirmed a decision of a delegate made on 9 February 1999 which refused to grant a protection visa to the applicant in response to an application lodged on 2 February 1999. The long delay while the matter was before the Tribunal is explained by two previous decisions of the Tribunal, differently constituted on each occasion, which were set aside by consent orders of the High Court and the Federal Court. The history of the earlier proceedings in the Tribunal and in the Courts is documented in a 913 page court book, and the present Tribunal provides a summary at the commencement of its decision. It is unnecessary for me to refer to that history, with the exception of proceedings before Madgwick J leading to the second remitter. I shall explain below what happened then. The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A and has restructured the Court’s jurisdiction in relation to migration decisions. However, these amendments apply only to proceedings commenced on or after 1 December 2005 and the repeal does not affect the present proceeding (see Sch.1 cl.41, and Acts Interpretation Act 1901 (Cth), s.8). Section 483A gives the Court the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). This is subject to limitations under Part 8 of the Migration Act, which have the effect that that I cannot set aside the Tribunal decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76]‑[77] and subsequent cases). I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a refugee visa. The three grounds upon which the applicant challenges this third decision of the Tribunal rely upon aspects of its procedure after the last remitter. The applicant contends that there was a failure of procedural fairness under common law principles arising from how the Tribunal dealt with some confidential and potentially prejudicial material on the Departmental files. This material was seen by Mr Hardy, but was not disclosed in any manner to the applicant or his legal representatives. The applicant also contends that Mr Hardy’s actions in relation to this material might give rise to a reasonable apprehension of bias. The third ground of the application is that there were breaches of the Tribunal’s obligations to invite written comments under s.424A(1), unrelated to the confidential material. I shall examine the circumstances bearing on these three arguments below, after sketching the Tribunal’s substantive reasoning.