SZGSG v Minister for Immigration

[2009] FMCA 552

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGSG v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 552

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal represented to the applicant that it would write to him inviting further comments following investigation of the applicant’s documents – whether relief should be refused – writs issued.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 414(1); 424A; 425; 425(1); 474; pt.8 div.2

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 660
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs 228 CLR 294
SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122

Applicant: SZGSG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3261 of 2008

Judgment of: Emmett FM

Hearing date: 29 May 2009

Date of last submission: 29 May 2009

Delivered at: Sydney

Delivered on: 15 June 2009

REPRESENTATION

Counsel for the Applicant: Mr T. Ower

Counsel for the Respondent: Mr T. Reilly

Solicitors for the Respondent: Ms Z. McDonald, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3261 of 2008

SZGSG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 24 November 2008 and handed down the same day.

2. The applicant claims to be a citizen of Liberia and the son of a previous adviser to the then President (“the Applicant”).

3. The issue before this Court is whether or not the Refugee Review Tribunal made a representation to the Applicant to provide to the Applicant a further opportunity to comment following investigations by the Tribunal about the authenticity of certain newspaper articles provided to the Tribunal by the Applicant in support of his review application.

4. The Applicant arrived in Australia on 29 October 2004 having departed Nigeria on a passport issued in his own name.

5. On 13 December 2004, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.

6. On 29 March 2005, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa. 

7. On 5 April 2005, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. 

8. On 14 June 2005, the Refugee Review Tribunal affirmed the decision of the Delegate not to grant a protection visa. The Applicant sought judicial review of that decision in this Court.

9. On 22 August 2008, the matter was remitted by this Court by consent to the Refugee Review Tribunal for determination according to law.

10. On 16 January 2007, the Refugee Review Tribunal, differently constituted, affirmed the decision of the Delegate not to grant a protection visa. Again, the Applicant sought judicial review of the decision in this Court.

11. On 26 August 2008, Besanko J remitted the matter by consent to the Refugee Review Tribunal for determination according to law.

12. On 24 November 2008, the Refugee Review Tribunal again differently constituted (“the Tribunal”) affirmed the decision of the Delegate not to grant a protection visa. 

13. On 10 December 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. 

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”). 

3. Australia has protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

1. The Applicant claimed that his father had been an adviser to the then President Taylor and had been killed by rebels on 11 January 2003. The Applicant claimed that his father was a former president of the Liberian Baptist Educational Convention and former Deputy Minister of Education in Liberia. The Applicant stated that in 2000 his father became the personal adviser on national and international affairs to the then President Taylor. The Applicant stated that in May 2003 Mr Taylor was “ousted” as president, following which the Applicant’s father was killed by Movement for Democracy in Liberia (“MODEL”) rebels. The Applicant stated he escaped to Nigeria on 19 May 2003, following the death of his father, because of a fear of persecution in Liberia from the MODEL rebel factions and political opponents of ex-President Taylor.

The Delegate’s decision

1. On 17 March 2005, the Applicant attended an interview with the Delegate.

2. The Delegate had regard to a considerable amount of country information from which it concluded that there was no evidence that former police officers or government officials from the Taylor regime were being targeted by members of movements for democracy in Liberia, including MODEL or by any other group, for a Convention reason. The Delegate accepted that human rights abuses occurred in Liberia at the time of the downfall of the Taylor regime in 2003. However, the Tribunal found that those conditions no longer existed throughout Liberia, particularly in and around the capital of Monrovia from where the Applicant originates. The Delegate noted that rebel groups that were fighting the Taylor government for control of the country had maintained the ceasefire agreement and were now represented in the transitional government, together with members of the former government and civilians.

3. The Delegate noted that the Applicant fled Liberia in January 2003 for Nigeria where he remained until October 2004 when he departed for Australia transiting via South Africa. The Delegate noted that the Applicant had remained in Nigeria for almost 2years without seeking protection. The Delegate also had regard to the fact that the Applicant applied for a visa to travel to Australia in June 2004 which was granted to him on July 2004, yet the Applicant did not travel until October 2004.

4. The Delegate found that “in the current Liberian context” it was not satisfied that the Applicant’s background placed him at risk for a Convention related reason. The Delegate did not accept that the Applicant’s claim was well-founded and that even if the Applicant’s evidence was accepted, in light of the country information, the Delegate was not satisfied that the Applicant faced persecution at the hands of MODEL rebels, or at the hands of the national assembly speaker for a Convention related reason if he were to return to Liberia.

5. On 29 March 2005, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

The Tribunal’s review and decision

1. On 5 April 2005, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

2. On 31 May 2005, the Applicant attended a hearing before an earlier and differently constituted Refugee Review Tribunal at which he gave oral evidence.

3. On 11 September 2008, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 7 October 2008 to give oral evidence and present arguments. This hearing was suspended at the Applicant’s request, according to the Tribunal’s decision record, so that the Tribunal could take oral evidence from a number of witnesses.

4. On 7 October 2008, the Applicant attended the Refugee Review Tribunal hearing and gave evidence. The hearing was suspended and rescheduled at the request of the Applicant because he wished the tribunal to hear evidence from a number of witnesses.

5. On 19 November 2008, the Applicant attended the Tribunal again accompanied by four witnesses and his representative.

6. The decision of the Tribunal is accurately summarised by counsel for the First Respondent in his written submissions as follows:

   “The Tribunal found the Applicant was not credible, noting that a person resembling the Applicant’s description of his father was “alive and well” in Liberia (as put in the second Tribunal’s second s 424A letter), and rejecting the Applicant’s account of his father’s death: CB 479 [40-41].  The Tribunal also noted difficulties with the alleged newspaper reports submitted by the Applicant: CB 479-480 [42-43].  The Tribunal concluded that the Applicant was not a witness of truth: CB 480 [44].”

The proceeding before this Court

1. The Applicant was represented before this Court by Mr Ower, of counsel.

2. At the commencement of the hearing, counsel for the Applicant confirmed that he relied on the grounds contained in the amended application, filed on 24 March 2009, as follows:

   “1. The Second Respondent failed to complete the hearing in accordance with its obligations under s.425 of the Act.

   Particulars

   a) At the conclusion of the hearing on 19 November 2008 the Second Respondent informed the Applicant that it was making further enquiries to establish the authenticity, or otherwise, of the newspaper article concerning the death of the Applicant’s father in 2003. The result of these inquiries was said to be of great importance to the main issue of the application. The Second Respondent promised to write to the Applicant for his further comment should the result of the enquiries be unhelpful to his claim. Despite the enquiries being “unsuccessful” the Second Respondent did not write to the Applicant but proceeded to judgment without seeking his further comment.

   2. Alternatively, the Applicant was denied procedural fairness for the reasons particularised in paragraph 1 above.”

3. Counsel for the Applicant submitted that at the Tribunal hearing on 19 November 2008, the Tribunal had made a representation to the Applicant. That representation was that, following investigations by the Tribunal with the United States Library as to the existence of newspaper articles relating to the death of the Applicant’s father, it would write to the Applicant and give the Applicant an opportunity to comment if, as a result of its enquiry, the Tribunal found that the press articles provided by the Applicant were not genuine.

4. In support of this submission, the Applicant read the affidavit of Shankar Chandiramani, affirmed 23 March 2009, annexing a transcript of an exchange between the Tribunal member and the Applicant. Counsel for the First Respondent did not object to the reading of that affidavit or to the accuracy of the transcript.

5. For the sake of completeness the part of the transcript relied upon is as follows:

   “Member: Alright……Thank you very much alright Umm.. The evidence which was given to me by Mr. Zole and Mr.Kany about your fathers work matches very closely the carrier of Rev. Dr. Walter Richards who was interviewed by Australian High Commission in 2006 and about which we received a letter in December 2006 and I think the problem that letter raised remains a problem its not being settled by the evidence anybody given today it is my feeling now you did a while gave us ago a copy of press article on your fathers death do you recall that

   [Applicant]: Ya

   Member: I have initiated inquiries to see whether that is genuine or not whether that is genuine authentic page from news paper, I don’t have the result of those inquiries yet its quite difficult because the news paper itself doesn’t appear to keep archives for very long but we have discovered the source actually in United States Library which does have the archives which we are going to approach that we only discovered it in last few days so I am not going to make decision until I completed my inquiries but the issues the issues that have been discussed with you remain a matters of some doubt in my mind and they have not really been solved by today’s witnesses had they have not left I would have asked them to leave because I don’t want to embarrass you in front of them but I mean Mr. Kany for example said that he was deputy minister of education in the Tolbert government now there can’t be two Richards deputy ministers of education in the Tolbert government as that’s is not going to happen and his position in Baptist church in clay Ashland so he still is and he is still alive and still is the pastor of Baptist church in clay Ashland I mean this a problem but as I said I am not going to make a decision yet because if it turns out that press article is genuine than of course it obviously affects the issue if it isn’t then it also affects the issue but in other direction and if I find the press article is not genuine than I will write to you and let you know and give you a chance to comment on that but I just want you to know that now the authenticity of that is being tested I don’t have an opinion on that yet so you know it is matter of determining whether or not it is genuine if it is genuine than obviously it is important evidence in your favour if it is not well then it goes the other way I don’t want to make a decision that is not correct for any reason so I will be very careful before I make my decision okay alright so I think for the today we have finished.” [emphasis added]

6. It is clear from the passage of the transcript that the Tribunal member considered the authenticity of the press articles provided by the Applicant about the alleged death of his father to be an important issue. The Tribunal proposed to test that authenticity by enquiries made to the United States Library which the Tribunal believed to have the relevant archives.

7. Counsel for the Applicant submitted that the Tribunal promised to give the Applicant the opportunity to comment because, at the time of that promise, the Tribunal had expressed the view that it had not formed an opinion one way or another as to the authenticity of the press articles without the enquiries it proposed being made. The Tribunal also made clear that it regarded such evidence as important.

8. Counsel for the Applicant submitted that the Tribunal did not inform the Applicant that:

   i)its enquiries had not disclosed the existence of any such press articles; or,

   ii)the Tribunal had changed its mind about the importance of that evidence; or,

   iii)the Tribunal had formed any particular view about the evidence.

9. More importantly, the Tribunal did not offer the Applicant an opportunity for further comment before proceeding to make its decision.

10. Counsel for the Applicant submitted that by its conduct the Tribunal had represented to the Applicant that, at the time it made the statement referred to above, it had not completed the review process under s.425 of the Act. Counsel for the Applicant submitted that such process was not complete until the Tribunal had provided to the Applicant an opportunity for further comment, following the conclusion of its investigations with the United States Library.

11. Counsel for the Applicant submitted that such an error constituted a breach of procedural fairness in that the Tribunal had deprived the Applicant of the opportunity to comment upon the subject that the Tribunal had led him to believe was critical to the outcome of his claim. Counsel for the Applicant referred to the High Court of Australia in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 660 (“Applicant NAFF of 2002”).

12. In Applicant NAFF of 2002, Gummow, McHugh, Callinan and Heydon JJ found that a failure by a tribunal member to send promised questions on inconsistencies in the appellant’s statements constituted a failure to complete the review process which was a failure to comply with the duty imposed by s.414(1) to conduct the review and the duty under s.425(1) to hear from the appellant. Their Honours found that the part of the process of review which involved participation by the appellant, as provided for in s.425(1) of the Act, had not been concluded ([32]-[33]).

13. In Applicant NAFF of 2002, their Honours found that the consequence of the failure of the tribunal member to complete its review process was as follows:

    “While the appellant knew that the foreshadowed questions would relate to inconsistencies in what he had said about the detentions, it would not have been possible for him to file an affidavit stating what answers he would have given to particular questions without knowing what the questions would have been. He could not anticipate what material he would be asked to supply, nor could he anticipate how any particular material to be requested would relate to the potential lines of reasoning of the Tribunal member, and hence he could not anticipate what he might usefully say on the subject generally.” [at 34]

14. Their Honours characterised the duty under s.425(1) as follows:

    “One aspect of the overall duty to review was the duty to invite the appellant to give evidence and present arguments: s 425(1). The duty to review therefore entailed a statutory duty to consider arguments presented and in that way to afford the appellant procedural fairness. That implied that if the Tribunal thought that the arguments had been presented so inadequately that the review could not be completed until further steps had been directed and performed, it could not be peremptorily concluded by the making of a decision before that direction was complied with or withdrawn.” [at 27]

15. Counsel for the First Respondent, Mr Reilly, conceded that if the Court found that the Tribunal had made a representation to the Applicant that, following its investigation, whatever the outcome, it found that the press articles provided by the Applicant were not genuine, the Tribunal would provide the Applicant with an opportunity to comment. Counsel for the First Respondent conceded that such a failure by the Tribunal member would constitute jurisdictional error of a kind identified by the High Court of Australia in Applicant NAFF of 2002.

16. However, counsel for the First Respondent contended that because the Tribunal’s investigations were unsuccessful, there was no requirement for the Tribunal to write to the Applicant inviting any further comment. Mr Reilly submitted that it was only in the event of enquiries of the United States Library that provided any further information to which the Tribunal intended to have regard in finding that the Applicant’s press articles were not genuine, that the Tribunal was obliged to write to the Applicant inviting comments.

1. For the reasons below, I do not agree with Mr Reilly’s submissions in any respect.

2. A fair reading of the transcript makes clear that the Tribunal had already initiated enquiries with the United States Library to see whether the press articles provided by the Applicant were genuine when compared to the relevant newspapers in the Library archives.

3. The Tribunal was at pains to indicate that, until those enquiries had been completed, it was not going to make a decision on the authenticity of those press articles provided by the Applicant.

4. In the circumstances, a fair reading of the transcript makes clear that the Tribunal represented to the Applicant that it would write to him and let him know the results of the Tribunal’s enquiries and give him a chance to comment prior to its finding that the press articles provided by the Applicant were not genuine, whatever the result of the enquiries initiated by the Tribunal member.

5. It is common ground that the Tribunal was not satisfied that the press articles provided by the Applicant were genuine and that such finding was part of its reason for affirming the decision under review.

6. As stated above in these reasons, counsel for the First Respondent conceded that if the Court were to make the findings that I have made, such an error was an error that went to the jurisdiction of the Tribunal. In the circumstances, the failure by the Tribunal to write to the Applicant prior to affirming the decision under review, partly on the basis of its finding that the press articles provided to the Applicant were not genuine, was a jurisdictional error of the type found to exist in Applicant NAFF of 2002. That is, by its conduct, the Tribunal denied the Applicant procedural fairness and its obligations under s.425 of the Act, to invite the Applicant to give evidence and present arguments relating to the issues arising under review, remain unfulfilled.

7. Accordingly, the Tribunal’s decision was not a privative clause decision.

Whether relief should be refused

1. Counsel for the First Respondent submitted that, if the Court, found that the Tribunal’s decision was affected by jurisdictional error, nevertheless the Court ought to refuse to grant the relief sought. In support of that submission, counsel for the First Respondent submitted that the issue of the authenticity and genuineness of the press articles was an issue raised by each of the earlier tribunals that had considered the Applicant’s review application. Certainly, each of the earlier and differently constituted tribunals had written to the Applicant pursuant to s.424A of the Act expressing their concern about the authenticity of the press articles in light of information before the tribunals that the Applicant’s father was, indeed, still alive. The Applicant responded to those s.424A letters on each occasion.

2. Counsel for the First Respondent submitted that the Applicant had had every opportunity to put to the Tribunal everything he wished to say in support of his claim that the press articles were genuine, including any material in support of that claim. Counsel for the First Respondent submitted that, in the circumstances, the Court ought to be satisfied that no useful purpose could be served in granting relief because the inference from the evidence before the Court was that there was nothing further the Applicant would put on that issue.

3. However, counsel for the Applicant submitted that the Applicant had been denied an opportunity to verify the investigations and enquiries made by the Tribunal of the United States Library and the possible existence of the press articles given to the Tribunal. Counsel for the Applicant submitted that it was not a sufficient answer to say that the Applicant could have made those earlier enquiries himself.

4. At this point in the Tribunal hearing, the counsel for the First Respondent sought an opportunity to make further written submissions on the exercise of the Court’s discretion. Accordingly, the Court gave a further opportunity to each party to provide further written submissions on the issue of the exercise of the Court’s discretion.

5. In further written submissions, counsel for the First Respondent submitted as follows:

   “4. However even if the Applicant’s construction of the relevant passages from the transcript extract is accepted, and the Court finds that the member forgot to write to the Applicant and there was a failure to complete the review as in Applicant NAFF of 2002 v MIMIA (2004) 221 CLR 1 at [32], relief should be refused in the Court’s discretion as there is no practical injustice in the circumstances of this case. The first Tribunal in 2005 had found the newspaper articles were false: CB 184.5-186.2. The second Tribunal in 2005 had written s 424A letters suggesting it may give them no weight: CB 285.3, 297.3. The Applicant’s response to the s 424A letters did not address the matter other than to state “I cannot be responsible for type setting of a newspaper reports to be created by desktop publishing” (CB 307.3). The second Tribunal found the alleged newspaper articles should be given little weight: CB 412.8. In these circumstances the Applicant must have been aware that the genuineness of the articles may not be accepted by the third Tribunal. He did not need to be told again that the Tribunal may find them not genuine. He was on notice of this from the previous Tribunal decisions and s 424A letters and had every opportunity to submit whatever he wished on the subject to the third Tribunal, whether at the hearing or subsequently.

   5. The situation is quite different from the generally described letter the Tribunal proposed to write but did not in NAFF at [11], seeking the applicant’s comment on inconsistencies in his evidence, which the applicant could not respond to without being told the Tribunal’s questions: NAFF at [34]. In this case the Applicant was already on notice of what he says the Tribunal promised to tell him that is that it may find his alleged newspaper reports not genuine. There is therefore no practical injustice to the Applicant in the circumstances of this case, even if the Applicant’s construction of the relevant passages from the transcript is accepted. The absence of practical injustice is a basis to decline relief in the Court’s discretion, even if a jurisdictional error is established: SZKGF v MIAC [2008] FCAFC 84 at [13-15]; should be refused accordingly, even if the Court finds a jurisdictional error.”

6. Counsel for the Applicant, Mr Ower, also provided further written submissions as follows:

   “Where there has been a failure to complete the steps mandated by Part 7 Division 4 of the Act amounting to jurisdictional error, it is debateable whether relief can be refused on the discretionary grounds of lack of utility or practical unfairness.[1] In any event, the present matter is easily distinguishable from situations of mere clerical error such as SZKGF –v- MIAC[2] where the wrong postcode was used in the Applicant’s address. Moreover, this is not a situation where the RRT would have found against the Applicant even assuming the authenticity of the articles in question.[3] On the contrary, the RRT had already indicated the importance of the question of authenticity of the articles to the overall issue of credibility. With respect, the authorities cited by the Respondent as supporting the exercise of discretion to refuse the present application are not pertinent to the circumstances of this case.”

   [1] SZIZO –v-MIC & Anor [2008] FCAFC at [91] to [100]

   [2] [2008] FCAFC 84

   [3] as was the case in SZLPO –v- MIAC [2009] FCAFC 51, making it equally distinguishable from the present matter.

7. I accept the submission of counsel for the Applicant that the Tribunal had made clear to the parties in making its decision on the review, of the importance of the authenticity of the press articles in relation to the Applicant’s credibility. As referred to above in these reasons, ultimately, part of the reason that the Tribunal made its adverse credibility findings was because it was not satisfied that the press articles provided by the Applicant were authentic.

8. In light of the Tribunal’s representation, the Applicant was entitled to sit and wait the outcome of the Tribunal’s investigations knowing that he had been given a further opportunity to conduct his own investigations of the newspaper archives at the United States Library or elsewhere, if the Tribunal’s investigations proved fruitless. True it is that the Applicant has certainly had other opportunities to provide evidence in support of the authenticity of the press articles. However, this is not a case where this Tribunal would necessarily have found against the Applicant if the press articles had proved to be authentic. The Tribunal made clear to the Applicant that it would not make its decision until it had completed its investigations of those newspaper archives and that if they were genuine it was important evidence in the Applicant’s favour.

9. The consequence of the Tribunal’s failure to write to the Applicant with the results of its enquiry prior to affirming the decision under review was to deny procedural fairness to the Applicant. In such circumstances, ordinarily the constitutional writ relief sought should not be withheld (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294, McHugh J said at [83]-[84]; SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122 at [97]).

10. Accordingly, the decision of the Tribunal should be set aside and the matter remitted to the Refugee Review Tribunal for determination according to law.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  Serena Kwong

Date:  15 June 2009