SZGSG v Minister for Immigration

[2008] FMCA 452

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGSG v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 452

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

The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZGSG”.

Migration Act 1958 (Cth), ss.91X, 276, 280, 420, 424, 425

Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180
NBKM v Minister for Immigration & Citizenship [2007] FCA 1413
MZXFN v Minister for Immigration & Citizenship [2007] FCA 362
SHMW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 321
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZCNG v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 505
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35
SZHLM v Minister for Immigration & Citizenship [2007] FCA 1100
SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 63
SZILK v Minister for Immigration & Multicultural Affairs [2006] FMCA 1318
SZILK v Minister for Immigration & Multicultural Affairs [2007] HCA Trans 671
SZILQ v Minister for Immigration & Citizenship [2007] FCA 942

Applicant: SZGSG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 589 of 2007

Judgment of: Lloyd-Jones FM

Hearing date: 17 September 2007

Delivered at: Sydney

Delivered on: 10 April 2008

REPRESENTATION

Solicitor for the Applicant: Mr M Jones

Counsel for the Respondents: Mr L Clegg

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The name of the first respondent be amended to read “Minister for Immigration and Citizenship”.

2. The application filed on 21 February 2007 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 589 of 2007

SZGSG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

The Proceedings

1. The applicant was born on 1 January 1971 and is a citizen of Liberia married with two sons, formerly living at the Liberian Embassy in Lagos, Nigeria. 

2. The applicant claims that he was educated between 1974 and 1988 at mission schools in Monrovia, graduated with a qualification in Agriculture in 2000 and worked between November 2000 and October 2001 in the Liberian Ministry of Agriculture.

3. Prior to travelling to Australia via South Africa, the applicant left Nigeria twice to visit other countries.  His passport was issued in November 2002 and a sub-class 676 visa was issued in Pretoria, South Africa on 7 November 2004.

4. The applicant claims that he is seeking protection in Australia as he is concerned that he may be killed in Liberia by “enemy forces”. He stated that his father was a “former president of the Liberian Baptist Educational Convension and former Deputy Minister of Education Republic of Liberia” and his mother was from the Mandingo tribe. He claims that his father was killed during the war in Monrovia as his father’s compound was attacked by the Movement for Democracy in Liberia (MODEL) group and his mother was taken away.

5. The applicant arrived in Australia on 29 October 2004 and applied for a Protection (Class XA) visa on 13 December 2004.  A delegate of the first respondent refused to grant a visa on 29 March 2005 and the applicant sought review of the delegate’s decision by the Refugee Review Tribunal (“Tribunal”).  The Tribunal affirmed the delegate’s decision but this was set aside by the Federal Magistrates Court on

   
   22 August 2006

   and remitted the matter to the Tribunal to be determined according to law.

6. The second Tribunal upheld the delegate’s decision and rejected the applicant’s claim on 16 January 2007 (reference 060782539) which is the decision that is the subject of these proceedings.

7. A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A”.  This document was read into evidence.

8. The amended application filed in this Court on 3 August 2007 contains four grounds of review supported by particulars.

Consideration

Grounds one and four

1. The Tribunal failed to carry out the review in the manner prescribed by s.420 of the Act.

Particulars

The Tribunal relied on a transcript of a hearing before a differently constituted Tribunal (“the transcript”) which it was not satisfied was any more than “fairly accurate”, despite also having access to a tape recording which it only listened to in part.  In doing so it failed to have regard to the entirety of the applicant’s evidence and did not provide the applicant with a review which was fair or just, and did not act according to substantial justice and the merits of the case.

4. The Tribunal failed to comply with s.425 of the Act by not inviting the applicant to attend a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review.

Particulars

The Tribunal considered that one of the issues arising in the case was the identity of a man with a similar name to the applicant’s deceased father, who was however still alive.  The Tribunal did not invite the applicant to attend a hearing to give evidence and present arguments relating to that issue.

1. Mr Jones referred the Court to the following passage from the “Claims and Evidence” in the decision:

   The Tribunal (as currently constituted) has obtained a transcript (“Tr”) of the hearing, which was prepared for the purposes of the Court proceedings, and has read it carefully.  It has also listened to part (not all) of the tape recording, to assess the accuracy of the transcript.  It is satisfied that the transcript is fairly accurate.  Such inaccuracies as it observed were not significant, some names are incorrectly spelt or omitted by the transcriber, for example.  The Tribunal is also satisfied that the above summary presents a fair account of the applicant’s oral evidence. (CB 83.5)

2. Mr Jones submits that although the Tribunal member had before it a transcript, it could have considered better evidence, particularly considering that credibility was a major issue in the case. Failure to consider the best evidence available to it meant that the Tribunal did not fully comply with the requirement to deal fairly with the applicant’s claims in the manner prescribed in ss.420, 425 of the Migration Act. 

3. Mr Jones, while acknowledging the distinction between the admissibility of evidence in a criminal case and that of a review in an administrative Tribunal, he relied upon a passage from the decision in Butera v Director of Public Prosecutions(Vic) (1987) 164 CLR 180 per Mason CJ, Brennan and Deane JJ at [9] where their Honours stated:

   If the tape is not available and its absence has been accounted for satisfactorily, the evidence of its contents given by a witness who heard it played over may be received as secondary evidence.

   …Nevertheless, when the tape is available or its absence is not accounted for satisfactorily, there can be no reason to admit the evidence of an out-of-court listener to a tape recording to prove what the tape recorded: it should be proved by playing over the tape.  Prudence and convenience combined to support the application of the best evidence rule in such a case.

   Mr Jones argues that where a tape exists, as in this case, there is no reason why a Tribunal should not rely on the entirety of that tape recording.  Mr Jones submits that the tapes are preferred evidence of the hearing proceedings rather than the transcript.

4. Mr Jones challenges the contentions contained in Ms Clegg’s written submissions that states a meaningful original Tribunal satisfies and complies with s.425A of the Act. Mr Jones argues that submission is incorrect and in support of that argument he believes that Ms Clegg’s reliance on the decision in SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 at [14] is incorrect. The passage referred to is:

   [14]…if a direction is given under s.422A, the member constituting a Tribunal in accordance with that direction is to continue and finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the member who previously constituted the Tribunal. (emphasis added)

5. Mr Jones maintains that the word “may” does not mean that it is alright if the Tribunal does not have regard to the previous Tribunal.

6. Mr Jones argues that if the entirety of the tape was available to the Tribunal then the applicant is entitled to make sure that the Tribunal listens to the entirety of that tape. It is not clear just how much of the tape the Tribunal did listen to and for that reason the applicant has not been given a real and meaningful oral hearing in order to put his case.

7. In addition Mr Jones contends that this case is essentially about credibility and that the assessment of credibility is a cumulative process which takes into account general demeanour, a way of expressing evidence and whether the applicant is generally truthful.  For that reason, the Tribunal should have listened to the entire audio recording of that hearing.

8. Ms Clegg indicated that given the circumstances of this case, there was a general observation of importance. The first decision was vitiated by a breach of s.424A. Ordinarily, the reasons for the invalidity of the first decision are of little importance. However, this case has a peripheral significance because what was identified as an error in the first decision is not a breach in relation to the hearing process or a failure in relation to ss.420, 425 or s.425A. It is submitted that neither the record of the remittal or the material before the Tribunal up until the first Tribunal’s decision indicated that there was an error with the first Tribunal hearing insofar as process was concerned.

9. The second Tribunal member reconsidered the matter according to law and the second Tribunal member had before it copious amounts of information from the applicant provided by his friend, Mr Laba-Sarkis as well as a copy of the transcript of the first hearing together and the hearing tapes.  Ms Clegg submits that upon remittal the Tribunal member was faced with a question of whether or not it should provide another hearing to the applicant.  Contrary to the argument advanced by Mr Jones that in all circumstances there must be a second hearing conducted upon remittal, Ms Clegg argues that the correct course depends on the circumstances. 

10. Mr Clegg contends that this is a case where the Tribunal had read the information that had been given to the first Tribunal and the Minister’s delegate and there was a copy of the interview between the applicant and the delegate. It also had all the information given to the first Tribunal. It is submitted that upon remittal the Tribunal found that there were some inconsistencies that had to be dealt with in order to discharge the s.424A obligation. Consequently, a letter issued under the provisions of s.424A highlighting those inconsistencies was sent to the applicant.

11. Ms Clegg submits that the second Tribunal forwarded two “Invitation to Comment on Information” letters pursuant to s.424A of the Migration Act. 

    a)The first letter dated 5 December 2006 dealt with a number of inconsistencies and issues in the applicant’s evidence with the intention of assessing the credibility of those claims.  Included in this enquiry was evidence in relation to the man who the applicant claimed was his father.  The applicant alleged that this man died in 2003 was in fact still alive. (CB 264-266)

    b)Letter dated 11 December 2006 was forwarded after the Tribunal received information from an officer of the Department of Foreign Affairs and Trading (DFAT) about the person by the name of Reverent Doctor Walter Delson [applicant’s surname].  This person held all of the positions which the applicant claimed his father had held however, he was in fact alive.  A member of DFAT had spoken with him and he confirmed that he had a number of children but none with the first name of the applicant.  The receipt of this information suggested that the applicant’s factual claims were a complete fabrication.

12. Ms Clegg submits that having sent the letters and considered the response from the applicant prepared with the assistance of Mr Laba-Sarkis, the Tribunal was entitled to proceed to make a decision without conducting a second hearing.  Ms Clegg submits that the primary reason for that approach was that the decision of the Tribunal was not based on the applicant’s demeanour or the way in which he responded to the question.  It was based on the information that was before the Tribunal provided by the applicant through his authorised recipient Mr Laba-Sarkis. 

13. Nowhere in the “Findings and Reasons” does the Tribunal make reference to the demeanour or the manner of giving evidence.  The Tribunal’s approach was to find that there was a man by the name of Reverent Doctor Walter Delson [applicant’s surname] alive and that he was not the applicant’s father so the Tribunal gave no weight to the evidence given by the applicant in support of his claim that there was such a man who was his father but who died in 2003.

14. The Tribunal in its “Findings and Reasons” states:

    The Tribunal accepts that there may be a number of people in Liberia with the name of “Walter D [-------]” or “Walter D [-------s]” but considers that he is extremely far fetched to believe that there are two such people, each of whom has or had the honourifics of “Rev. Dr”, each of whom was a former president of the one Baptist Missionary organisation, and each of whom was a former Deputy Minister for Education in the time of the Tolbert & Doe regimes.  In this regard, the Tribunal notes that the applicant submitted to it a letter from the “Association of the Liberian Community of Australia Inc” in which it was asserted that the applicant’s father was a former Deputy Minister for Education in the time of those regimes. (CB 394.3)

15. Ms Clegg submits that the Tribunal did not need to conduct a hearing with the applicant to note those findings and come to that conclusion.  It would not have mattered what the applicant had said in light of that very damning information that it had received and for which the applicant did not have an adequate response.

16. Ms Clegg submits that where Mr Jones relied on the decision in Butera v Director of Public Prosecutions (Vic) involving the admissibility to the hearing of evidence in a criminal trial, the matter before this Court is an administrative procedure for which there is a statutory regime set out by the legislature. Section 420 of the Act states that the Tribunal is not bound by the rules of evidence so there is no obligation for the Tribunal to listen to all of the tape or conduct a second hearing as the Act has been complied with in every respect.

17. In respect to the s.425 argument relied upon by Mr Jones, requiring the applicant to attend the hearing, give evidence and present argument Ms Clegg asserts that did occur in this case and the statutory obligation has been discharged.

18. Ms Clegg indicated that she also relies on the authority of the Full Federal Court decision in SZEPZ v Minister for Immigration & Multicultural Affairs at [39]:

    39 … Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review. An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made.

    Ms Clegg submits that the above passage was in the context of the validity of the s.424A letter but also recently applies to the validity of the process of s.425 and the information given by the applicant during the conduct of the review.

19. I am satisfied that whether an audio tape from a previous hearing must be listened to or whether a second hearing is required will depend on the circumstances of the case and an assessment of the ultimate basis upon which the Tribunal bases its decision.  In the matter before this Court, the second Tribunal proceeded to make a finding on the basis of the information before it and in particular information received from DFAT that the person that the applicant was claiming to be his deceased father and having died in 2003 was in fact alive and well in 2006.

20. The Tribunal member states that he read the entire transcript and was appraised of all the information that the applicant had put before the first Tribunal. However, none of this information was an answer to the serious credibility problem facing the applicant. Those issues were put to the applicant in the s.424A letters of 5 and 11 December 2006 and were also the primary basis upon which the Tribunal made its decision. In the circumstances I am satisfied that the Tribunal complied with its statutory obligations under ss.420 and 425 of the Act.

21. Since the hearing of this matter, it has come to the Court’s attention that there have been three recent additions which address the issue of whether a reconstituted Tribunal is required to hold its own hearing.  This issue was addressed in SZILQ v Minister for Immigration & Citizenship [2007] FCA 942 per Buchannan J at [32] handed down on 27 June 2007: SZHLM v Minister for Immigration & Citizenship [2007] FCA 1100 per Cowdry J at [34] handed down on 23 October 2007 and NBKM v Minister for Immigration & Citizenship [2007] FCA 1413 per Siopis J at [32] handed down 13 September 2007.

22. The relevant issue is addressed in SZHLM at [32] –[34] where the Tribunal denied the applicant a further hearing following remittal of the matter and the reconstitution of the Tribunal. The Tribunal as reconstituted, twice invited the applicant to comment on information that formed part of the reasons for the decision pursuant to s.424A(1). No further hearing was held and Cowdroy J characterised those invitations as requests for further information and held that the reconstituted Tribunal was required to carry out its statutory function as if the first hearing had not taken place. His Honour held that the Tribunal’s review had not been completed because the Tribunal had requested further information from the applicant and had then not held a further hearing.

23. In the matter before this Court after the second Tribunal was constituted it received information from DFAT in respect to the person that the applicant was claiming was his father. This information is set out in the s.424A letter addressed to the applicant’s authorised recipient on 11 December 2006, a clear invitation to comment on that information. A detailed response was received from Mr Laba-Sarkis, the applicant’s nominated recipient together with a detailed statement provided by the applicant responding to both s.424A letters.

24. In the circumstances, I believe the matter before this Court is distinguishable from the decision in SZHLM and that I am bound to follow the Full Court in the decision of SZEPZ v Minister for Immigration & Multicultural Affairs (which has been subsequently upheld by the High Court on a special leave application). The issue is discussed in that decision at [27] – [34].

25. In the circumstances, I am satisfied that grounds one and four cannot be sustained and should be dismissed. 

Ground two

2. The Tribunal as reconstituted failed to comply with s.424A of the Act.

Particulars

Information which the Tribunal considered to be part of the reason for upholding the decision under review was provided to the Tribunal by a person who was authorised to receive correspondence on the applicant’s behalf, but was not legally entitled to give immigration assistance within the meaning of s.276 of the Act.  As such, it was information given by a third party and not exempt under s.424A(3)(b).  This information included:

·    the contents of the transcript of the first hearing

·    the date of issue of the applicant’s birth certificate

·    the contents of an email from the applicant’s father

The Tribunal failed to provide any particulars of that information to the applicant.

1. Mr Jones identifies three pieces of information which he claims did not come within the exclusion under the provisions of s.424A(3). These were:

   a)Information contained in the applicant’s birth certificate attached to a letter forwarded to the Tribunal from Mr Toufic Laba-Sarkis dated 23 May 2005 (provided to the first Tribunal) (CB 84-86).

   b)Two letters from “Elder Association of Clay and Ashland”.  The first letter dated 22 June 2005 was attached to a letter from Mr Toufic Laba-Sarkis dated 1 July 2005 (letter one provided to the first Tribunal) (CB 136-137).  The second letter (CB 296) was attached to a letter from Toufic Laba-Sarkis dated 30 September 2006 (provided to the second Tribunal) (CB 281-283).

   c)Email from the Reverend Walter Delson [same name as applicant] is attached to a letter forwarded by Mr Toufic Laba-Sarkis dated 22 December [2006] (provided to the second Tribunal).

2. Mr Jones submits that all of these documents contain information which the Tribunal clearly considered to be part of the reasons for making its decision.  This can be seen in the Tribunal’s “Findings and Reasons” in the following passage:

   The applicant has submitted a number of documents in support of his assertion that his father was the (different) person who he described him to be and that his father died in 2003.  However, the Tribunal gives little weight to this evidence. For example (CB 393)

3. The following dot points in the “Findings and Reasons” address these three issues:

   a)first dot point – the birth certificate submitted to the Tribunal in May 2005;

   b)fourth dot point – the Tribunal refers to the letterheads from the Elders Association and the differences between them;

   c)third dot point – the Tribunal identified the discrepancy in the description of Walter D [same name as the applicant].

4. Mr Jones submits that there is no dispute between the parties that this information was not provided to the applicant. Mr Jones argues that in light of the requirements of s.424A it should have been. The respondent’s position is that it was exempt information for the reason that it was given to the Tribunal by Mr Laba-Sarkis who in some way was acting as an agent for the applicant. Mr Jones argues that this proposition forwarded by the respondent cannot be correct and refers the Court to s.276(1) of the Act which states:

   (1)For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant or cancellation review applicant by:

   (a) preparing, or helping to prepare, the visa application or cancellation review application; or

   (b) advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or

   (c) preparing for proceedings before a court or review authority in relation to the visa application or cancellation review application; or

   (d) representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.

   Section 280(1) states:

   (1) Subject to this section, a person who is not a registered migration agent must not give immigration assistance.

5. Mr Jones submits that if immigration assistance includes representing a person at a Tribunal hearing, then the person who is not a registered migration agent must not do that.  Mr Jones concedes that there may be a question as to whether Mr Laba-Sarkis used or purported to use knowledge of or experience in migration procedure in what he was doing and what he purports to be doing.  Evidence of what Mr Laba-Sarkis purports to be doing is found in the following correspondence:

   a)Mr Laba-Sarkis’s letter to the Tribunal dated 17 May 2005 which states:

   It might be the case that the applicant’s claims were poorly presented in his application for a protection visa.  But the uncontested assassination of his father and the record of interview conducted by Ms Susan Miffud should have led her to accept that [SZGSG] meets essential requirements for the grant of a protection visa. (CB 68)

   b)In the same letter:

   I sincerely invite the Presiding Member to accept the applicant’s claim as constituting a well-founded fear of persecution for a convention reason. (CB 70)

   c)Letter from Mr Laba-Sarkis to the Tribunal dated 30 December 2006 attached a large number of documents which provided evidence of Mr Laba-Sarkis’s knowledge of migration matters including his interview experience answering migration questions.

6. Mr Laba-Sarkis uses language of relevant legislation and provided the Tribunal with material.  This infers that he knew what he was familiar with migration matters.  Mr Jones submits that Mr Laba-Sarkis purports his knowledge of migration procedures in an attempt to represent the applicant in the Tribunal proceedings.  This is not lawfully possible as Mr Laba-Sarkis was not, at the time, a registered migration agent and this was accepted by both Tribunal members.  This fact is recorded in a file note, No5/50952 of the Tribunal member constituting the first Tribunal where it is recorded:

   A witness is claiming not to be acting as a migration agent for the applicant; and though he was previously registered as a migration agent, he is no longer registered.  As I was concerned with his role in this matter (and feared he may somehow disadvantage the present applicant), I referred this matter to my superior who in turn referred it for further consideration. (CB 142.1)

7. The second Tribunal member made the following observation in the decision record under the heading “Claims and Evidence” where it was recorded:

   The applicant appeared before the Tribunal (differently constituted) on 31 May 2005 to give evidence and present arguments.  The applicant was not represented in relation to the review by a registered migration agent, though he described his authorised recipient as his “Advisor”, and that man spoke at length at the hearing. (CB 373-374)

8. Mr Laba-Sakis has been representing the visa applicant in terms contrary to the provisions of the Act and despite the respondents in their written submissions referring to Mr Laba-Sarkis’s role as that of an agent in a common law sense, the Act overrides that. The Act covers the field with respect to representation of people in terms of matters in which it deals and provides no scope for people outside of that definition to rely on any common law principle of agency.  Both Tribunals were aware of Mr Laba-Sarkis’s lack of authority.  The first Tribunal referred to Mr Laba-Sarkis as a witness, which is the highest classification that he could he could be assigned to.

9. Mr Jones referred the Court to the decision in SZCNG v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 505 per Barnes FM at [41]-[64]. Her Honour concluded at [64]:

   [64] In all the circumstances, particularly in light of the approach taken in SAAP and the view that s 424A imposes a mandatory requirement and given that under s 424A it is not simply a question of giving the applicant information but also of ensuring as far as reasonably practicable that the applicant understands the relevance of that information and is given an opportunity in writing to comment, I am of the view that information is not given by the applicant where it is given orally by a third party in response to questioning at a Tribunal hearing. The fact that the applicant had given the Tribunal notice that the applicant wanted the Tribunal to obtain oral evidence from that person and the Tribunal decided to do so in the presence of the applicant does not alter my conclusion (see Hayne J at [199] in SAAP). Hence, on balance I am not pursuaded that the information given by the applicant’s niece and/or husband was information that the applicant gave for the purpose of the application within s 424A(3)(b).

   Mr Jones acknowledges that the circumstances in the matter before this Court are slightly different from those being discussed by Her Honour, Barnes FM, in that the information was not given orally by Mr Laba-Sarkis.

10. Mr Jones drew the Court’s attention to paragraph [47]-[48] of the decision in SZCNG where her Honour, Barnes FM, is considering whether information given by a witness falls within the exemption is s.424A(3)(b):

    [47] It was also submitted for the respondent that SZEEU (at [172] and [252]) was broadly consistent with the respondent’s argument that the evidence of a witness falls within s 424A(3)(b). SZEEU dealt primarily with information given by the applicant to the Department before an application for review. However in SZEOP (one of the appeals dealt with by the Full court and reported as SZEEU) the court considered a claim that information consisting of the Tribunal’s concerns about inconsistencies (between the applicant’s evidence and evidence in a letter from a third person that had been sent to the Tribunal attached to a submission from the applicant’s adviser) should have been put to the applicant under s 424A(1). Moore J found (at [65]) that the Tribunal’s “views” in this respect were not “information”. Allsop J agreed with the conclusion that s 424A was not applicable, but preferred to base his conclusion on the fact that the letter was sent to the Tribunal attached to a submission from the applicant’s adviser. His Honour found in these circumstances (at [252]): “Plainly s 424A(3)(b) applied to it.” Weinberg J did not express a view on this issue, but at [172] agreed with Moore J that the ground of appeal relating to this issue should be dismissed.

    [48] The contents of such written material was clearly part of the evidence put to the Tribunal by the applicant. If an applicant chooses to put written evidence or a prepared statement of a witness to the Tribunal in circumstances where the applicant must be taken to have advance knowledge of the precise contents of such evidence, the applicant should properly be seen as giving information contained in such a statement to the Tribunal. However it is for the Tribunal to determine not only whether it will hear from a witness proposed by an applicant at a hearing but also to decide what questions to ask such a witness. The oral evidence of a witness given in response to questioning by an inquisitiorial Tribunal at a hearing (as occurred in this case) is not of the same nature as written evidence (or even a prepared oral statement of a witness) submitted by the applicant (or his adviser) to the Tribunal. Indeed, in the absence of a common law obligation to accord procedural fairness (see s 422B of the Act), an applicant may not have an opportunity to address the relevance of the oral evidence of a third person given in response to Tribunal questioning (unless s 424A applies).

11. Mr Jones argues that the essential difference in the matter before this Court is that Mr Laba-Sarkis was not lawfully acting as the advisor or representative of the applicant.  So what her Honour Barnes FM addressed above does not apply to the matter before this Court.  Consequently, what stands is addressed in [64] (extracted above) and [40] that the reason for the provision is to ensure that the actual applicant understands the significance of the material.

12. Mr Jones contends that if the applicant is legally represented, then a valid inference may be that the applicant is aware of the significance of the material that the advisor was putting to the Tribunal.

13. Mr Jones submitted that in a situation where an applicant does not have a legal representative, an inference that the applicant knew about or understood the significance of the material cannot be drawn. A similar situation exists where a witness gives the evidence orally in the front of the Tribunal. Mr Jones argues that in this case the written evidence of Mr Laba-Sarkis becomes information that should be brought to the applicant’s attention in accordance with s.424A by doing so in writing. It is submitted that the three groups of documents identified in [36(a), (b) and (c)] above fall within that category.

14. Ms Clegg acknowledges that grounds two and three are both concerned with the application of s.424A. The grounds do raise the issue of the role that Mr Laba-Sarkis played in the conduct of this review.

    
    

    Ms Clegg observes that the Tribunal was aware that Mr Laba-Sarkis was in fact not a registered agent but seeks to distinguish that situation from those in the recent High Court case of SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 where the High Court held that the conduct of a fraudulent, unregistered migration agent effectively vitiated the decision of the Tribunal. This was not simply because the advice given by the agent was fraudulent to the applicant but it would in effect perpetrate fraud upon the Tribunal. Ms Clegg contends that there is no question of Mr Laba-Sarkis perpetrating a fraud on the Tribunal because the Tribunal knew who he was and there was a discussion over his role as to what he understood his role to be at the Tribunal hearing.

15. Ms Clegg submits that if the argument put by Mr Jones is right, then it would mean in this case that the Tribunal would be obliged to comply with s.424A in respect of every piece of information that was put before it resulting in an artificial situation. It is submitted that it was very clear that Mr Laba-Sarkis was heavily involved in the conduct of this review and in fact assisted the applicant right through the review.

16. Ms Clegg identified the following references to the nature of Mr Laba-Sarkis’ involvement in these proceedings:

    a)application for review: Mr Toufic Laba-Sarkis of “Interiors 4 U” are identified as the agent and the organisation with him being a community leader(CB 60-72);

    b)application for review: the authorised recipient is identified as Mr Toufic Laba-Sarkis of “Interiors 4 U” with a post office box address in Burwood (CB 61);

    c)Mr Toufic Laba-Sarkis is identified as JP and Community Leader (CB 65);

    d)an advice letter on “Interiors 4 U” letterhead signed by Toufic Laba-Sarkis, Managing Director (CB 84);

    e)response to hearing invitation is identified – the authorised recipient is Toufic Laba-Sarkis, JP of “Interiors 4 U”(CB 87)

17. On the “Response to Hearing Invitation” the questions were responded to by the applicant in the following way (CB 87) which clearly indicate the involvement of Mr Laba-Sarkis in the applicant’s case:

Do you want to come to a hearing?

Yes

2a If your application includes other family members does any family member want a separate question?

No

2b Do you need an interpreter?

No

2c Do you want the Tribunal to take oral evidence from any witnesses?

No

2d Do you want to bring someone else with you to the hearing?

If yes, what is their names?

Toufic Laba-Sarkis, JP.

This person is: Friend.

a)RRT hearing record – advisor – Toufic Laba-Sarkis (“Interiors 4 U”) attended:Y(CB 89)

1. At the Tribunal hearing held on 31 May 2005, Mr Laba-Sarkis discussed his role at the hearing which is recorded in the transcript at p.27 (CB 232).  In the following passages Mr Laba-Sarkis explains the importance of certain documents that the applicant is relying upon which is followed by the exchange:

   Mr Norman: Mr Laba-Sarkis, are you a migration agent?

   Mr Laba-Sarkis: No, no.

   Mr Norman: Do you know anything about migration law?

   Mr Laba-Sarkis: No.

   Mr Norman: Are you a lawyer?

   Mr Laba-Sarkis: No, no.  I have – I only help him as a friend.

2. Ms Clegg submits that Mr Laba-Sarkis is not being treated as a witness in the traditional sense where the applicant is sent outside and

   
   

   Mr Laba-Sarkis is treated as an independent witness.  The transcript then continues:

   Mr Norman: So you are just saying you are a concerned citizen who picked up on the applicant – how much money – is this costing you, are you being paid any money for your service?

   Mr Laba-Sarkis: Ask him.

   Applicant: Not one cent, he was sent to me by God as an angel.

3. This is followed by a long discussion by the Tribunal member and Mr Laba-Sarkis as to his role before the Tribunal. Ms Clegg submits that everyone knew what role Mr Laba-Sarkis was playing. He was not a registered migration agent but it was clear that he was helping the applicant. He claimed to be his friend and he was also his authorised recipient. Ms Clegg submits that the issue to be resolved is whether the Tribunal was entitled to treat him as the applicant in terms of whether or not the exception s.424A(3)(b) applied. Ms Clegg argues that the Tribunal had no doubt that all the information came from the applicant through Mr Laba-Sarkis. Ms Clegg submits that there is no evidentiary basis for this Court to form a view as the High Court ultimately did in SZFDE.

4. Ms Clegg submits that in support of that contention, it is distinct from the circumstances in SZFDE there was nothing in this matter that impacted on the process adversely or unfairly.  There was a hearing attended by the applicant with the assistance of Mr Laba-Sarkis.  The applicant was with Mr Laba-Sarkis when he made submissions and it was open to the Tribunal to infer that any conduct by Mr Laba-Sarkis amounted to conduct of the applicant.  In other words it was conduct with the applicant’s consent and authority.  Ms Clegg argues that the Tribunal could not conduct this review in any other way than it did.  The Tribunal in effect dealt with the communication and information it received from Mr Laba-Sarkis as information from the applicant in the same way that it can do so when a person such as Mr Laba-Sarkis performed a migration agent function.

5. Mr Jones argues that ss.276, 280 of the Act made it clear that Mr Laba-Sarkis was not entitled to act in the way that he did. Ms Clegg does not dispute that contention but argues that ss.276 and 280 of the Act are directed to the regulation of migration agents. It is argued that there is no authority that suggests a migration agent or another person is acting outside of their authority that impacts upon the whole decision and makes it a nullity. Nor does it mean that the conduct taken by that person removes that information from consideration within the review. Further the conduct of Mr Laba-Sarkis on behalf of the applicant in this matter is not of the nature that would invoke the operation of SZFDE v Minister for Immigration. 

6. Ms Clegg submits that ss.276, 280 deal with the regulation of migration agents but there is no statutory connection which follows through to Part 7 of the Act which is concerned with the conduct of the review. It is submitted that the statutory obligations that are imposed on the Tribunal in Part 7 have been discharged. The dispute between the parties relates to the role of Mr Laba-Sarkis on the question of whether or not he was a witness. If the Tribunal receives oral evidence from a witness and it is used against the applicant in an adverse way then the s.424A obligations are invoked. However, this information was given in writing either by the applicant or by an advisor on his behalf. The exception in s.424A(3)(b) applies. Ms Clegg argues that the information that was given by Mr Laba-Sarkis was information within that exception.

1. Ms Clegg submits that in the decision: SZCNG v Minister for Immigration, her Honour Barnes FM found that oral evidence does not fall within s.424A(3)(b) but at [48] her Honour states that the contents of written material that was put to the Tribunal was clearly part of the evidence provided by the applicant. If an applicant choses to put written evidence or a prepared statement of a witness to the Tribunal in circumstances where the applicant must be taken to have advanced knowledge of the precise contents of such evidence, the applicant should properly be seen as giving information contained in such a statement to the Tribunal. So there is a distinction between a true witness and information that it is given in writing. This has been confirmed on a number of occasions.

2. In SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 his Honour Allsop J at [252] states:

   [252… as to the second ground of the appeal. As to the argument based on s 424A and the letter from the person, I would prefer to base my conclusion on the fact that the letter from the person was sent to the Tribunal attached to a submission from the appellant’s adviser. Plainly s 424A(3)(b) applied to it.

3. In SZILK v Minister for Immigration & Multicultural Affairs [2006] FMCA 1318 his Honour Smith FM found:

   39. The information relating to the statutory declaration which was identified by the Tribunal was that it "does not state that the applicant was a practitioner of Tien Tao in China". I consider that this information was sourced in the statutory declaration, and that it was used adversely as part of the Tribunal’s reasoning. However, in my opinion the whole of that statutory declaration, including the limits of its contents, was information which the applicant "gave for the purpose of the application" within the exclusion of s.424A(3)(b). 

   40. This is because it was, as I have described above, presented by the applicant’s agent to the Tribunal in support of her application for review. I do not consider that Federal Court authorities, which are somewhat discordant, in relation to the application of s.424A(3)(b) to evidence orally given by an applicant’s witness appearing at a Tribunal hearing have relevance in the present situation (compare Young J’s discussion in Applicant M47/2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 176 with Branson J’s discussion in SZECG v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 733). 

4. His Honour’s approach was subsequently affirmed by the Federal Court in SZILK v Minister for Immigration & Multicultural Affairs [2007] FCA 185 per Siopias J and an application for special leave to the High Court was denied: SZILK v Minister for Immigration & Multicultural Affairs [2007] HCA Trans 671.

5. In MZXFN v Minister for Immigration & Citizenship [2007] FCA 362 her Honour Bennett J considered whether or not medical reports that were put in writing invoked s.424A(1) obligations. Her Honour stated at [11]:

   [11] Section 424A(1) of the Act in Div 4 has no application, as the documents in question were given to the Tribunal by the appellant for the purposes of the review application (s 424A(3)(b)). Indeed, the appellant does not raise any ground of appeal in this regard.

6. Ms Clegg submits that the authorities support overwhelmingly the proposition that evidence that is given in writing by an applicant is not evidence that invokes s.424A obligations. Although Mr Jones contends that it is only a slight difference in this case that it wasn’t given orally, Ms Clegg submits that it is a very important distinction that has been made in a number of cases and in the circumstances of the matter before this Court, the evidence given by Mr Laba-Sarkis was information given by him in writing on behalf of the applicant and falls within the exception in s.424(3)(b).

7. I believe that the question before this Court is how the Tribunal was entitled to treat Mr Laba-Sarkis and the written information that he had placed before the Tribunal on behalf of the applicant.  I agree with the submission that there is no suggestion before the Tribunal that

   
   

   Mr Laba-Sarkis was acting other than with consent and the full authority of the applicant. It is argued that the Tribunal was entitled to treat Mr Laba-Sarkis in the same way that tribunals treat advisors as the applicant. The authorities support the view that information given by an advisor on behalf of the applicant is effectually information given by the applicant and is afforded the exemption in s.424A(3)(b).

Ground three

3.  The reconstituted Tribunal also failed to comply with s.424A of the Act.

Particulars

The Tribunal wrote to the applicant on 5 December 2006 purporting to provide particulars of information which included the statement: “You have since provided other material to the Tribunal which appears to have been sent to you by people in the Nigerian national assembly.  The Tribunal could conclude from this, that you have powerful friends in the Nigerian national assembly and government who would be able to ensure you had the protection of the Liberian government.  This statement was inaccurate and misleading, since the applicant did not at any time provide material sent by people in the Nigerian national assembly.

1. Mr Jones indicates that ground three of the amended application deals with an issue that does not appear in the “Findings and Reasons” section of the decision record but which arguably influences the thinking of the Tribunal in determining whether the applicant was a credible witness.  The Tribunal received documents from Mr Laba-Sarkis which appeared to have been sent by someone with connections to the National Transitional Legislative Assembly of Liberia (CB 379.5). 

2. The Tribunal forwarded an “Invitation to Comment on Information” letter dated 5 December 2006 which contained the following statement:

   Seventh, you told the Department in the interview of 17 March 2005, that your diplomatic passport was provided to you by the Liberian Foreign Minister, who was a friend of your father.  The Tribunal has also seen your application for a visa to come to Australia and associated papers.  It is clear from those documents, and your oral evidence to the Department, that your application for a visa to Australia was prepared with the assistance of an Liberian diplomat.  You have since provided other material to the Tribunal which appears to have been sent to you by people in the Nigerian National Assembly.  The Tribunal could conclude from this that you have powerful friends in the Nigerian National Assembly and government who would be able to ensure that you had the protection of the Liberian government. (CB 266.6)

   Mr Jones submits that by failing to give the correct particulars of the information, the Tribunal failed to comply with s.424A(1).

3. The Tribunal acknowledged this error in its decision in the following statement:

   [The reference to “Nigerian” in the seventh point of the letter should have read “Liberian”]. (CB 388.5)

4. Ms Clegg makes the following submissions in respect of this ground of review:

   a)The information in question (Nigerian instead of Liberian) was not information which was ultimately relied upon by the Tribunal. Consequently, it did not form part of the reasons for affirming the decision under review so the s.424A obligation was not invoked in respect of that information.

   b)If s.424A(1) was invoked there was no breach because although there was a typographic error this does not amount to jurisdictional error; SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 63 per Greenwood J at [42]-[45]; SHMW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 321 per Scarlett FM at [20]. It could only lead to a jurisdictional error if it could be reasonably suggested that the error in some way confused the applicant so that he did not understand why the information was relevant to the review, such that it did not comply with s.424A(1)(b). The applicant has not suggested that he did not understand why the information was relevant to the Tribunal for review of the delegate’s decision. It is submitted that that conclusion is not surprising because in this case it is clear from the applicant’s coherent and direct response to the Tribunal’s invitation to comment on information that he did well understand the very issue that the Tribunal sought to raise notwithstanding the typographic error.

5. The response provided by the applicant to the “Invitation to Comment on Information” letter of 5 December 2006 was as follows:

   g) as regards the seventh paragraph, I confirm that while Charles Taylor was given refuge in Nigeria, I had no problem.  However, when the Nigerian government started to put on the heat or got fed up with protecting him, our presence because unbearable as well.  My passport was arranged by a friend of my father who happened to be in government.  It does not matter how the passport was obtained.  Hence, the most important aspects of my life was not wasting time but knowing too well that I could not go back to Liberia under any circumstance.  I proceeded to the safest country, willing to put me up and that is Australia. If it was possible, I would have stolen any international passport, to enable my exist from Nigeria, since we [the] use by date had expired, we were no longer welcome.  I did not have any powerful friends other than those few people who understood the danger of life and death I faced, should I venture back into Liberia.

6. Both parties acknowledge that the request and the response were not matters that were ultimately relied upon by the Tribunal in its final analysis. It is submitted that in the circumstances there was no breach of s.424A because s.424A is only invoked when the information is a reason or part of the reason for affirming the decision that is under review.

7. Ms Clegg brought the Court’s attention to the High Court decision in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 which has resulted in a dilution of the effect of s.424A in a sense that the applicant must now point to something substantial in the decision which is the information that is relied upon. His Honour, Kirby J, at [86] states:

   [86] Properly analysed, that was "the reason" and the only "reason" in this case for the Tribunal's decision. It was sufficient. And it necessarily required rejection of the appellants' claims. It could not possibly have been affected by anything that might have been said by either of the appellants in response to written copies of documentation addressed only to preliminary, collateral and discursive matters as set forth in the Tribunal's reasons. Whilst I agree that the phrase "the reason, or a part of the reason" should not be narrowly read so as to diminish the obligations of s 424A (SAAP stands against such a narrow reading), the search is not simply for a passage in the Tribunal's discussion. It is for the identification of something more substantive. Just as the elucidation of the ratio decidendi of a decision for legal purposes requires analysis,89 "the reason, or a part of the reason" referred to in s 424A(1)(a) also requires discernment and correct analysis. In both cases, it is a mistake to treat everything this is, or might be, contained in the discursive reasoning as significant for the more precise legal purpose in hand.

8. I am satisfied that the applicant’s response prepared to this issue raised in the “Invitation to Comment on Information” letter on 5 December 2006 demonstrates that the applicant clearly understood why the information was relevant to the Tribunal’s review.  There is no indication that this error in the country name confused or in any way misled the applicant when he responded.  In the circumstances, I am satisfied that ground three of the amended application cannot be sustained.

Conclusion

1. I am satisfied that none of the grounds in the amended application can be sustained and that this application should be dismissed with costs.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date: 

CORRECTIONS

1. Paragraph 56 line 9 – delete “revoked” insert “invoked”