SZJKI v Minister for Immigration and Citizenship
[2007] FCA 1438
•17 August 2007
FEDERAL COURT OF AUSTRALIA
SZJKI v Minister for Immigration and Citizenship [2007] FCA 1438
MIGRATION – the Tribunal’s duty to afford procedural fairness – the Tribunal should refrain from providing a running commentary – Tribunal members are inquisitors required to be fair, not adversarial cross-examiners
Migration Act 1958 (Cth) ss 36(2), 65(1), 91R(3), 422B, 424A and 425
Federal Court of Australia Act 1976 (Cth) s 27SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291SZJKI, SZJKJ, SZJKK AND SZJKL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1036 OF 2007GRAHAM J
17 AUGUST 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1036 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZJKI
First AppellantSZJKJ
Second AppellantSZJKK
Third AppellantSZJKL
Fourth AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE OF ORDER:
17 AUGUST 2007
WHERE MADE:
SYDNEY
THE COURT:
1.Orders that the second appellant, identified for the purpose of these proceedings as ‘SZJKJ’, being the mother of the fourth appellant, who is identified for the purpose of these proceedings as ‘SZJKL’ and who was born on 5 August 1990, be appointed as the next friend (tutor) of the fourth appellant for the purpose of this appeal.
2.Notes the undertaking to the Court of David Lee Bitel of Parish Patience Lawyers to cause a Notice of Change of Solicitor as required by Order 45 rule 5 of the Federal Court Rules, formally appointing Mr Bitel as the appellants’ solicitor, to be filed on or before 22 August 2007.
3.Grants leave to the appellants to file in Court an Amended Notice of Appeal dated 13 August 2007.
4.Orders that the appeal be dismissed.
5.Orders that the first and second appellants pay the respondent Minister’s costs.
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 1036 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZJKI
First AppellantSZJKJ
Second AppellantSZJKK
Third AppellantSZJKL
Fourth AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GRAHAM J
DATE:
17 AUGUST 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The first appellant, who is identified for the purposes of these proceedings as SZJKI, was born in Nepal on 31 December 1960. He arrived with his wife, his son and his daughter [respectively SZJKJ, SZJKK and SZJKL] in Australia on 6 December 2005.
On 23 December 2005 an application for a Protection (Class XA) visa was lodged with the Department of Immigration and Multicultural and Indigenous Affairs. That application identified the first appellant as the person who was claiming to be a refugee. No such claims were made in respect of the second, third and fourth appellants. Their claims in respect of protection visas are covered by s 36(2)(b) of the Migration Act 1958 (Cth) (‘the Act’).
Under s 65(1) of the Act the Minister is in certain circumstances ‘to grant the visa’, and if those circumstances do not apply is ‘to refuse to grant the visa’. Relevantly, s 65 provided:
‘65(1) After considering a valid application for a visa, the Minister:
(a)if satisfied that;
…
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied;
…
is to grant the visa; or
(b)if not so satisfied, is to refuse to grant the visa.’
The relevant criterion applicable to the first appellant is that contained in s 36(2)(a) of the Act and the relevant criterion in respect of the other three appellants is to be found in s 36(2)(b) of the Act. Section 36(2) provided:
‘(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b)a non‑citizen in Australia who is the spouse or a dependant of a non‑citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa.’
The ‘Refugees Convention’ referred to means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is not necessary for the purposes of this appeal to set out the relevant provisions of the Refugees Convention which define who is a refugee.
The appellants’ application for a protection visa or visas was refused by the Minister’s Delegate on 15 March 2006, whereupon the appellants applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the Minister’s delegate’s decision. The Tribunal was constituted for the purposes of the review by Tribunal Member Ms O’Toole, who appears to have conducted a hearing which lasted for approximately four hours on 11 July 2006. It would appear that the persons in attendance were the first appellant, the second appellant, the appellants’ migration agent and a pastor, David Boyd.
Following the hearing it would appear that a letter was forwarded by facsimile to Parish Patience Immigration Lawyers, who were representing the appellants, inviting the appellants to comment on certain information. It may be inferred that the facsimile, which appears to be undated, was sent having regard to the Tribunal’s then understanding of the obligations cast upon the Tribunal by s 424A of the Act. Further material was provided by the appellants to the Tribunal in response to the facsimile to which I have referred. The Tribunal proceeded to decide that the decision of the Minister’s delegate not to grant the applicants Protection (Class XA) visas should be affirmed. That decision was apparently made on 23 August 2006 and handed down on 31 August 2006.
In relation to the decision of the Tribunal the appellants, who had been represented before the Tribunal, brought, without the assistance of any lawyers, an application for constitutional writ relief in the Federal Magistrates Court of Australia, the relevant Application being lodged on 25 September 2006. An Amended Application was filed in the Federal Magistrates Court of Australia on 21 December 2006 and the application for constitutional writ relief was decided by Smith FM on 21 May 2007. His Honour ordered that the application be dismissed and made an order in respect of the payment of part of the respondent Minister’s costs by the first and second appellants.
From the decision of the learned Federal Magistrate an appeal has been brought to this Court by a Notice of Appeal filed 8 June 2007. That Notice of Appeal was apparently filed by the first appellant acting as a litigant in person on behalf of himself, his wife and their two children.
On 13 August 2007, that is to say on Monday of this week, it would appear that the appellants instructed Parish Patience Immigration Lawyers to act for them on the hearing of the appeal. An amended Notice of Appeal was filed in Court today. It raises two grounds. They are shortly expressed as follows:
‘(1) The Tribunal failed to carry out its Statutory Duty.
PARTICULARS
(a)the Tribunal failed to comply with the Migration Act 1958 s. 425 in that it did not give the Appellants an opportunity to give evidence in relation to, and comment upon, all the issues arising in the application.
(2) The Tribunal failed to take account of relevant material.
[Particulars]
(a)The Tribunal failed to take account, or any real account, of the evidence of the Senior Pastor and pastor in relation to the Appellants conversion to Christianity.’
In relation to the s 425 issue Mr Turner of Parish Patience Immigration Lawyers submits that the Tribunal failed to afford the appellants an opportunity to address s 91R(3) of the Act. That section provided:
‘91R(3)For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.’
In the Tribunal’s ‘FINDINGS AND REASONS’ the Tribunal said:
‘The applicants claim that if they return to Nepal, they will face persecution for reasons of their religion; the applicant husband’s imputed political opinion (seen as opposing the Maoists); the Applicant husband’s membership of a particular social group as a person who was employed by a foreign NGO; returnee from the West and/or returnee from a wealthy country. In assessing the applicants’ Convention claims, I am required to determine whether they have a well-founded fear, and if so, whether what they fear amounts to persecution for a Convention reason.’
The first issue tendered for consideration on the appeal concerned the question of whether or not if the applicants were to return to Nepal they would face persecution for reasons of their religion. The first appellant relevantly claimed to have converted to Christianity prior to arriving in Australia and, consistent with his conversion, to have practised Christianity consistently since his arrival in Australia.
The Tribunal referred to s 91R(3) of the Act in its summary of the ‘RELEVANT LAW’ before proceeding to a consideration of the appellant’s ‘CLAIMS AND EVIDENCE’. In its ‘FINDINGS AND REASONS’ the Tribunal returned to specifically mention s 91R(3) of the Act, which it had previously set out.
The passage in the Tribunal’s ‘FINDINGS AND REASONS’ upon which the appellants’ case is primarily founded is as follows:
‘In respect to the applicants’ involvement in the practice of Christianity in Australia, the Tribunal accepts the applicants have been attending the Jesus Family Centre since shortly after their arrival in Australia, and that the applicant husband and applicant wife were baptised in March 2006. The Tribunal does not accept, however, that the applicants were involved in or converted to Christianity between 2000 and 2005 whilst living in Singapore. The Tribunal does not find the applicants’ explanations regarding not being baptised in Singapore to be convincing. It is the Tribunals’ (sic) view that had the applicants been serious about an interest in Christianity since 2000, they would have made an effort to be baptised in Singapore and prior to coming to Australia. The Tribunal is not satisfied that the applicants converted to Christianity as claimed and is supported in this finding by the applicants’ conflicting evidence relating to the obtaining of a Bible or Bibles in the Nepali language. It is the Tribunals’ view that the applicants became involved with the Jesus Family Centre shortly after their arrival in Australia with a view to enhancing their protection visa applications.
In respect to the Applicants involvement with Christian activities since their arrival in Australia and including their baptism in March 2006, the Tribunal disregards this conduct as it is not satisfied that the applicants have engaged in this conduct otherwise than for the purpose of strengthening their claims as refugees (see Section 91R(3) Migration Act set out above …). In making this finding the Tribunal has considered the evidence of Pastor Boyd and others who attest to the sincerity of the applicants’ conversion. However, the Tribunal’s view is that such witnesses’ evidence does not overcome the problems arising from the applicants’ oral evidence as set out above. As a consequence the Tribunal finds that the applicants engaged in Christian activities since their arrival in Australia for the purpose of enhancing their claims to be refugees.
Overall, the Tribunal is not satisfied that the applicants genuinely converted to Christianity at any time prior to lodging their protection visa applications. …’
The appellant’s submission is that s 425 of the Act requires the Tribunal at a Tribunal hearing to afford applicants for review the opportunity to ‘give evidence and present arguments relating to the issues arising in relation to the decision under review.’ That obligation, it is said, requires fairness on the part of the Tribunal.
In the recent case of SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 (‘SZFDE’), the High Court said at [31]-[32]:
‘31 The importance of the requirement in s 425 that the Tribunal invite the applicant to appear to give evidence and present arguments is emphasised by s 422B. This states that Div 4 “is taken to be an exhaustive statement of the requirement of the natural justice hearing rule in relation to the matters it deals with.”
32 An effective subversion of the operation of s 425 also subverts the observance by the Tribunal of its obligation to accord procedural fairness to applicants for review. Given the significance of procedural fairness for the principles concerned with jurisdictional error, sourced in s 75(v) of the Constitution, the subversion of the processes of the Tribunal in the manner alleged by the present appellants is a matter of the first magnitude in the due administration of Pt 7 of the Act.’
(footnotes omitted)
SZFDE, of course, concerned fraudulent conduct on the part of a migration agent which induced the migration agent’s clients not to attend a Tribunal hearing. It is important, however, to note the High Court’s observation concerning the obligation of the Tribunal to accord procedural fairness to applicants for review, notwithstanding what some may have thought to be a limitation contained in s 422B of the Act.
Proceedings before the Tribunal are not adversarial, but inquisitorial; the Tribunal is not in the position of the contradictor of the case being advanced by an applicant. A Tribunal Member conducting the inquiry is not an adversarial cross-examiner but an inquisitor obliged to be fair.
In an application for review before the Tribunal it is for the applicant to advance whatever evidence or argument he wishes to advance and for the Tribunal to decide whether his claim has been made out; it is not part of the function of the Tribunal to seek to damage the credibility of an applicant’s story in the manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. However, equally, the Tribunal, conducting an inquisitorial hearing, is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark upon (see per Gummow and Heydon JJ in Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] – [58]).
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said in relation to matters of procedural fairness at a Tribunal hearing at [47] – [48]:
‘[47] … It is not necessary (and often would be inappropriate) for the tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
[48] … as Lord Diplock said in F Hoffmann‑La Roche & Co AG v Secretary of State for Trade and Industry:
“… the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”
Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.’
(footnotes omitted)
The appellants rely in particular upon that part of the reasons for judgment of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ at [47] which have been set out above. The appellants urge that the Tribunal failed to afford the appellants an opportunity to present arguments concerning their religious observance in Australia with a view to arguing that it was not colourable, that it was not simply engaged in for the purpose of bolstering their protection visa applications, and that it was genuine and consistent with their conversion to Christianity prior to their arrival in Australia.
For such an argument to succeed one might have expected the evidence before the Federal Magistrates Court to include either the tapes of the Tribunal hearing or a transcript of what transpired during the course of the four hour Tribunal hearing.
The learned Federal Magistrate was not prepared to entertain that there could have been procedural unfairness in this regard in the absence of a transcript of what had transpired before the Tribunal. Smith FM, in his reasons for judgment (SZJKI v Minister for Immigration [2007] FMCA 807) said at [32]:
‘So far as I can detect on the evidence before me, the applicants were also alerted to the fact that their credibility in general was in issue. In particular, it would appear to have been made clear to them from the questioning at the hearing and from the s.424A(1) letter that the genuineness of their conversion to Christianity, and the truth of their claims to have converted prior to coming to Australia, might not be accepted by the Tribunal. Certainly, in the absence of a transcript I am not satisfied that any breach of s.425 occurred such as was found by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63.’
Counsel for the respondent Minister draws attention to the fact that tapes of the hearing before the Tribunal were provided to the appellant’s solicitors. By letter dated 11 July 2006 the Tribunal forwarded to Parish Patience Immigration Lawyers the relevant tapes under cover of a letter reading, ‘I am enclosing a copy of your Tribunal hearing tapes as requested’. It is apparent that the tapes were received because prior to the Tribunal reaching its decision a further letter dated 24 July 2006 was obtained by the appellants from Senior Pastor David Boyd who referred to them. His letter commenced:
‘…I have had the opportunity to listen to the tapes, and speak in detail (though (sic) an interpreter) to [the first and second appellants] about each of the issues raised by you, and now take this opportunity to respond to your concerns.’
There were then four topics covered in considerable detail in the remainder of the quite lengthy letter which was supplied to the Tribunal for its consideration.
The appellants recognise the very considerable difficulty with which they are confronted by the absence of a transcript of the hearing before the Tribunal or the tender of the tapes of the Tribunal hearing. Counsel for the respondent Minister observes that if the reason for the absence of the evidence in respect of the Tribunal hearing was that the hearing before the Magistrates Court was conducted by the appellants in person, there is no reason why an application to lead further evidence could not have been brought on the hearing of the appeal as permitted in certain circumstances by s 27 of the Federal Court of Australia Act 1976 (Cth). There is some force in this submission.
The appellants urge that notwithstanding the absence of a transcript or of the tapes, they can nevertheless point to the Tribunal’s summary of the hearing, which is recorded on four and a half pages of the Tribunal’s 21 page ‘STATEMENT OF DECISION AND REASONS’, to argue that s 91R(3)(a) of the Act should not apply in the circumstances of their case. This argument was advanced on the basis that the Tribunal Member quite obviously asked questions of the first appellant and of the second appellant in relation to matters which were of concern to her. I think it fair to say that the several matters which were raised by the Tribunal Member and referred to in her reasons for decision went to factual issues, not to the legal significance of factual matters.
It does not seem to me that this case falls within the ambit of that portion of the reasons for judgment of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL to which reference has been made. In my opinion, one has to have regard to the observation of Gummow and Heydon JJ in Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 where their Honours said at [57]:
‘… it was for the prosecutrix to advance whatever ... argument she wished to advance, and for the tribunal to decide whether her claim had been made out.’
In my opinion, the first ground of appeal fails.
In support of the second ground of appeal, Mr Turner for the appellants relied upon a passage from the judgment of Gummow J, then a judge of this Court, in Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291, where at [25] his Honour said:
‘… what was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he gave proper, genuine and realistic consideration to the merits of the case …’
It seems to me that the particular passage has no application to the issue which the appellants have tendered for the Court’s consideration in this case. The suggestion is that the Tribunal Member failed to evaluate and have regard to the evidence of Senior Pastor Boyd as contained in a letter dated 23 June 2006 to the Tribunal and his further letter to the Tribunal of 24 July 2006 and a letter from an outreach pastor from the same church, namely the Jesus Family Centre at Cabramatta, which was directed ‘To Whom It May Concern’ and was apparently provided to the Tribunal.
Counsel for the respondent Minister quite rightly points out that the Tribunal Member recorded the Tribunal’s receipt of the communications mentioned and also set out in considerable detail the matter contained in Senior Pastor Boyd’s letter of 24 July 2006, which had been prepared following receipt of the Tribunal’s s 424A letter of 14 July 2006. The Tribunal Member also adverted to submissions apparently put by the appellants’ migration agent to the Tribunal which are recorded under the heading ‘Advisor’s written submissions (27 July 2006)’.
It would be quite impermissible for the Federal Magistrate or for this Court to undertake a merits review directed at reaching a different conclusion on the same evidence. There is nothing in my opinion to found an argument that the Tribunal failed to have regard to all relevant material.
The fact that the conclusions reached may have been inconsistent with some of that material does not mean that it was not properly taken into account. In the circumstances, the second ground of appeal also fails.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate:
Dated: 12 September 2007
Solicitor for the Appellants: R C Turner of Parish Patience Immigration Lawyers Counsel for the First Respondent: T Reilly Solicitor for the First and Second Respondents: DLA Phillips Fox Date of Hearing: 17 August 2007 Date of Judgment: 17 August 2007
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