SZGLQ v Minister for Immigration and Multicultural Affairs

[2006] FCA 1506

FEDERAL COURT OF AUSTRALIA

SZGLQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1506

MIGRATION LAW – failure of decision-maker to give appellants the opportunity to comment on change of circumstances indicated by country information obtained by Tribunal between hearing and decision – pre introduction of s 424A of Migration Act 1958 (Cth) – appeal allowed

Judiciary Act 1903 (Cth), s 39B

SZGLQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 670 reversed
Kioa v West (1985) 159 CLR 550 cited
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 referred to

SZGLQ, SZGLR AND SZGLS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1275 OF 2006

GYLES J
1 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1275 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGLQ, SZGLR AND SZGLS
Appellants

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GYLES J
DATE OF ORDER:	1 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be allowed. 

2.The orders of the Federal Magistrates Court of 14 June 2006 be set aside.  In lieu thereof, the decision of the Refugee Review Tribunal of 28 June 1995 be set aside and the matter be remitted to the Refugee Review Tribunal for determination according to law. 

3.The first respondent pay the costs of the proceedings before the Federal Magistrates Court. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1275 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGLQ, SZGLR AND SZGLS
Appellants

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GYLES J
DATE:	1 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants are Fijian citizens of Indian ethnicity and follow the Hindu religion.  They claimed entitlement to protection visas on the basis of a well-founded fear of persecution on that account.  Because of the history of this matter, the Refugee Review Tribunal (the Tribunal) came to consider its decision in 1995 and so was bound by the Migration Act as it then stood.  The first respondent, the Minister for Immigration and Multicultural Affairs (the Minister) by his delegate, had declined the applications for visas.  An adviser to the appellants made a significant written submission to the Tribunal dated 13 December 1993 and received by the Tribunal on 21 December 1993.  After referring to political events which led up to the coup in December of 1993, prevailing problems in Fiji were analysed under 11 stated headings.  The adviser attached a number of documents and press clippings which he said supported the arguments advanced. 

2. The Tribunal invited the attendance of the appellants and the English language transcript of the proceedings was in evidence before the learned Federal Magistrate and is before the Court on this appeal.  That transcript shows that the Tribunal member said he had been through the file and had seen the Department’s decision, and he then said ‘this is a chance for you to make those claims as well as any additional claims which you wish to make’.  The Tribunal member then asked a series of questions and on various occasions referred in terms to ‘your application to the Department’ as being the source of the topic being discussed.  Some topics which were discussed were not sourced in that express fashion.  I do not have before me, and the learned Federal Magistrate did not have before him, the original application and the material provided in support of it. 

3. During the course of the hearing the adviser, who had been present, made some remarks about the ‘current circumstance and situation in Fiji’—current being November 1994—and offered to support his statement with some clippings and materials.  He also asked for a short time in order to supplement the material.  The Tribunal gave him until 8 December 1994.  On or about that date, a bundle of material including press clippings and other sources was forwarded to the Tribunal. 

4. The Tribunal’s decision was dated 28 June 1995, which is a little more than seven months after the hearing.  The reasons are in conventional form.  One section is headed ‘Claims and Evidence’, and that is then followed by a heading ‘Reasons’.  In the Claims and Evidence section there is no reference to the adviser’s submission or to any material provided by the adviser.  There is a reference to the primary application at one point.  Other than that, the only reference to claims and evidence is to what the applicant told the Tribunal at the hearing.  The reasons for decision do not refer in terms to any material provided by the adviser, or to any argument advanced by the adviser, but rather refer to a number of pieces of country information, one important one dated 17 March 1994, but other sources dated on their face in 1995.  On the basis of that information, the Tribunal rejected the claims of well-founded fear of persecution because of ethnicity and religion. 

5. The essence of the application for relief pursuant to s 39B of the Judiciary Act 1903 (Cth), which was made to the Federal Magistrates Court, was that the Tribunal member had not considered the case put forward on behalf of the appellants. In essence, the learned Federal Magistrate, apart from not being persuaded of that, held that the real basis for the Tribunal’s decision in any event was the material current at the time of the Tribunal’s decision in 1995, which effectively superseded that which went before (SZGLQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 670). In the appeal to this Court, the appellants pursued three grounds for appeal, attacking the approach of the learned Federal Magistrate to the arguments advanced to him. I will not trouble to set out the detail of the grounds of appeal.

6. When the matter came on for hearing today, the solicitor for the appellants indicated that he wished to amend the notice of appeal to raise the question of natural justice or procedural fairness, because the material relied upon by the Tribunal member, and regarded as critical by the learned Federal Magistrate, had not been disclosed to the appellants or the adviser prior to the decision.  That material, or certainly the bulk of it, is now in evidence, but was at no stage provided to the appellants. 

7. Objection was taken to the amendment, first of all on the general ground that it is not appropriate to take new points at this stage of a case in this Court.  There was also a suggestion that the way the case had been presented before the Federal Magistrates Court may have led to some unfairness to the first respondent in the way things developed if the amendment were now allowed.  I need not go through all of that as I think it is now accepted that there is no special point that can be made about that.  It is not suggested, for example, that if this point had been taken before the learned Federal Magistrate there could have been evidence led to counter it.  That is plainly correct because the circumstances appear from the face of the record, or are otherwise very clear. 

8. The fundamental objection, however, was that the point had no merit and would not succeed.  In my view, the point does have merit, and in the very unusual circumstances of this case, it seems to me that an amendment should be permitted along the lines read onto the record by the solicitor for the appellants.  The argument has merit based upon the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, where in very similar circumstances, (that is, a change of position in the country of origin prior to the decision due to reliance by the delegate on new material and the appellant being given no opportunity to respond), the High Court had no difficulty in finding that there had been a breach of the rules of natural justice and procedural fairness. The main issue in that case was that by then there had been amendments to the Act which enabled an argument to be put that there was then a code for dealing with the situation and that the ordinary common law natural justice rules did not apply. That argument is not available in this case, because the amendments had not been made, so the common law rules clearly do apply.

9. The answer which is made on behalf of the Minister is that in this case, all the issues raised in the later material to which reference was made by the Tribunal member were traversed in the earlier material and that the late material really amounted to pieces of evidence which were not required to be put forward for particular comment.  There is also, I might say, always the argument that it is the visa applicant’s case, and if circumstances change in the country of origin, then it is up to the applicant to keep on top of things and keep the Tribunal informed. 

10. It seems to me that the approach of the High Court in Miah, and indeed in Kioa v West (1985) 159 CLR 550, which was applied in Miah, makes this all too plain a case of a breach of the rules of procedural fairness.  The material was crucial to the decision.  Whilst it may not have been new in concept it did relate to a later period and amounted to the reason why the applications failed. 

11. It is also my opinion that the first ground of appeal relating to the failure by the Tribunal to advert to the material put forward on behalf of the appellant is made out in this case.  Both sides have referred to authority as to the circumstances under which this ground may be established.  Undoubtedly, it is a difficult ground to establish because it is not the role of the Court to insist that a tribunal mention every piece of evidence that is before it.  Section 430 of the Act does not impose that obligation.  It imposes an obligation to explain what was decided and why it was decided.  On the other hand, it is the duty of the Tribunal under the Act to consider the application. 

12. In this case, the Tribunal was given a coherent and detailed submission in favour of the applications, supported by some material and later supported by other material.  Counsel for the Minister has submitted that, when you look at this material bit by bit, it is relatively unimportant and does not establish much.  It is in the form of press clippings.  However, it is, to my mind, quite striking that there was no reference by the Tribunal member to any of it at all. Bearing in mind that one of the segments of the reasons is headed ‘Claims and Evidence’ and yet there is absolutely no mention of these matters in that section, it seems to me to indicate that when the Tribunal member came to making his decision, the adviser’s submission and the material produced both before and after the hearing had simply gone from his mind and that he instead relied upon the transcript of the proceeding, perhaps supplemented by the original application. 

13. Whilst I accept that this may be a borderline case, the omission is so striking as to amount to a failure to carry out the obligation to have regard to all of the information which was provided and to properly consider the application.  Furthermore, as I have indicated, the manner in which the matter was dealt with by the learned Federal Magistrate gives special point to the submission, made on more than one occasion by the solicitor for the appellants, that as the learned Federal Magistrate did not really explain why he did not accept the first ground—there is no indication that the Tribunal did consider the material—but held that any such failure was trumped by reference to the later material only emphasises the key importance of that later material. 

14. I, therefore, propose to make orders which dispose of the matter.  I am a little concerned about the question of costs.  It is true that I have found that the learned Federal Magistrate was in error in relation to a ground which was put before him, but I cannot help but think that if this natural justice point had been put and the authorities referred to, that the learned Federal Magistrate would never have made that mistake.  I do not think that the appellants can succeed here as if there were nothing untoward.  It is very late in the process to be raising a very significant point. 

15. The appeal is allowed.  The orders of the Federal Magistrates Court of 14 June 2006 are set aside.  The decision of the Refugee Review Tribunal of 28 June 1995 is also set aside and the matter is remitted to the Refugee Review Tribunal for determination according to law.  I order that the respondent Minister pay the costs of the proceedings before the Federal Magistrates Court.  I make no order as to the costs of the appeal to this Court.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:        15 November 2006

Solicitor for the Appellants:	Mr T Silva of Silva Solicitors
Counsel for the First Respondent:	Mr D Jordan
Solicitor for the First Respondent:	Australian Government Solicitor
The Second Respondent submitted

Date of Hearing:	1 November 2006
Date of Judgment:	1 November 2006