SZMCB v Minister for Immigration
[2008] FMCA 951
•2 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMCB v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 951 |
| MIGRATION – RRT decision – particulars of information relied upon by Tribunal – impressions of applicant’s demeanour from listening to tapes of delegate’s interview – not sufficiently given to applicant in s.424A letter – matter remitted. |
| Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(1)(a), 424A(1)(b) |
| Elrifai v Minister for Immigration [2005] FMCA 1484, (2005) 225 ALR 307 Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138 SZELA v Minister for Immigration & Anor [2005] FMCA 1068 SZHCN v Minister for Immigration & Anor [2006] FMCA 531 SZIJU v Minister for Immigration & Anor [2008] FMCA 51 SZJDY v Minister for Immigration & Anor [2007] FMCA 1760 SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105 SZKCQ v Minister for Immigration & Citizenship [2008] FCAFC 119 |
| Applicant: | SZMCB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 721 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 2 July 2008 |
| Delivered at: | Sydney |
| Delivered on: | 2 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Dr S Blount |
| Counsel for the First Respondent: | Mr M P Cleary |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 26 February 2008 in matter 071963486.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 20 December 2007.
The first respondent pay the applicant’s costs as agreed or taxed under r.21.02(2)(c) and O.62 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 721 of 2008
| SZMCB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant arrived in Australia in November 2004 on a temporary visa. He had three brothers resident here, and at that time made no claim to be a refugee. In November 2007, he was detained at a workplace, and was placed into immigration detention, where he remains. On 16 November 2007, he was assisted to make an application for a protection visa by a solicitor of the Legal Aid Commission of New South Wales, under a scheme giving persons in detention access to legal advice for that purpose.
It is unnecessary in this judgment to detail the applicant’s claimed history of persecution in China, nor why the Tribunal did not accept its truth, except in one respect which I shall address below. In short, the applicant claimed that he had been “involved with Falun Gong” since March 1998, had recommended it to the staff of his business, and had continued to practise Falun Gong even after a member of the local neighbourhood committee warned him against this in October 2001. He claimed later to have been interrogated by the Public Security Bureau and mistreated on several days, and then to have decided that he should leave his home town and run his business from another city. He remained there for a year, but when he returned to his home city in December 2002, he was again taken into detention, interrogated, kept for 15 days and mistreated, for refusing to change his attitude to Falun Gong. After he was released, he claimed to have been subject to pressure from the Public Security Bureau which caused his business to cease operations, and he moved out of his home and came to Australia.
He explained his failure to apply for a protection visa on the basis of lack of knowledge about his rights, and the absence of assistance until he was taken into detention. He claimed to have started practising Falun Gong while in detention, and also previously to have had some attendances at Falun Gong practice sites while in Australia. He claimed that if he returned to China he would continue to practise “even though this means that I will be at real risk of the PSB”.
A delegate interviewed the applicant in the presence of his solicitor, made handwritten notes of the interview, and also taped the interview. Both the handwritten notes and the tape were subsequently forwarded to the Refugee Review Tribunal, but were not revealed to the applicant, except in the manner which I shall describe below. The issue now before me is whether the Tribunal relied on information from listening to the tape, which it did not properly put to the applicant as required under s.424A(1) of the Migration Act 1958 (Cth).
In a decision made on 20 December 2007, the delegate refused the visa application. In the course of his reasons he referred to the applicant’s responses when interviewed about his claims and his understanding about Falun Gong. The delegate said:
The applicant was given the opportunity to expand on his claims at interview, but largely re‑iterated what was provided in his written application. When asked specific questions the applicant regularly replied with a repeat of the written statement already provided, rather than a response to the question asked, leading me to be concerned about the true circumstances of the applicant in China.
…
The written statement provided by the applicant made very little mention of his understanding of Falun Gong, nor did he demonstrate any interest or knowledge in the teachings of Falun Gong, or involvement in Falun Gong truth clarification activities, either in China or Australia. At interview the applicant was asked about his understandings of Falun Gong and gave brief and general responses, stating that he still considers himself a beginner and that he [is] yet to fully read the book, Zhuan Falun. As a person who claims to have been involved in the practice of Falun Gong for just three months shy of ten years one would expect a deeper and better knowledge of the philosophies of the practice.
The applicant attended a hearing of the Tribunal on 31 January 2008, and a transcript of the first part of the hearing is now in evidence before me. At the start of the hearing, the Tribunal told the applicant:
TRIBUNAL MEMBER: The Department file includes the tape of the interview you had with the Department Officer and I have had an opportunity to listen to that. …
At page 13 of the transcript the Tribunal referred to the applicant’s responses to the delegate when questioned about Falun Gong:
TRIBUNAL MEMBER: Then I’ll take a note of that but I need to alert you that that’s not what the form says. Now, as I said to you I’ve got access to the interview you had with the Department Officer and the critical issue for me is whether or not you are a genuine Falun Gong practitioner. Now, from the tapes it’s apparent – now that interview was held on 30th November which was less than a month after you had been in the immigration detention. And you will know from the delegate’s decision, and that was the delegate’s opinion, that from the delegate’s decision that the Department Officer didn’t think that you had a very good knowledge of Falun Gong for somebody who had been a practitioner for so many years. And the sorts of things that are apparent from the tape was you were asked about a particular exercise and you were asked about the number of lectures contained in the book Ja Falun, and you even told the delegate that you consider yourself a beginner.
Now, I’ll form my own opinion based on what we’ll do today but I want to let you know that I’ve got access to that tape and that is information that I must also take into consideration, your state of knowledge at that date, a month after your detention.
The Tribunal again referred to this at page 23 of the transcript:
TRIBUNAL MEMBER: Just briefly, Falun Gong has a particular symbol or emblem. Have you seen that, are you familiar with it?
APPLICANT: Yes.
TRIBUNAL MEMBER: There’s different elements to it. What are the different elements?
APPLICANT: It consists of the yin yang of Taoism and the yin yang of Buddhism. The … was in the middle. Top, bottom, left and right small. And then east, west, north and south are the … of Taoism. That forms the emblem. It possess all functions of the universe and permanently written.
TRIBUNAL MEMBER: There’s also the central of Falun Gong is of course the Falun. Does it move?
APPLICANT: Yeah, rotating.
TRIBUNAL MEMBER: Which direction?
APPLICANT: So anti‑clockwise, clockwise giving yourself salvation. Anti‑clockwise the others salvation.
TRIBUNAL MEMBER: I won’t ask any more questions about Falun Gong. The information that you’ve given me shows that you have a good knowledge. I will have to obviously reflect more on this but you appear to have a good knowledge of Falun Gong. The level of knowledge that you’ve got and certainly the confidence with which you now speak about Falun Gong today at the end of January seems to be quite different from the interview that you had at the Department at the end of November.
A central issue in the present case is whether the Tribunal ultimately drew upon its impressions from hearing the applicant’s manner of answering the delegate’s questions, as well as from the content of his answers when questioned about Falun Gong. Counsel for both parties made submissions about what could be deduced about this, from the transcript passages I have set out above. Ultimately, I have decided they do not substantially assist the argument. I certainly cannot find in the above exchanges any evidence that the Tribunal was putting out of mind its impressions from hearing the applicant’s manner of responding. Rather, the Tribunal’s reference to “the confidence with which you now speak about Falun Gong today” suggests that it was taking into account the applicant’s demeanour and manner of answering questions at the hearing before it, and that it may have been comparing those observations with what it deduced from listening to the tape. This, at least, is what it appears to have explored with the applicant at its own hearing.
What it drew from listening to the delegate’s tapes is not clarified by the Tribunal’s description of its hearing in its statement of reasons. Its description of what was said was:
The Tribunal asked the applicant a range of questions about his knowledge and practice of Falun Gong. The applicant had brought with him to hearing a copy of the main text Zhuan Falun. He said that this was his personal copy. He had gone through it many times, but still felt that he had a shallow understanding because it was full of deep meaning. The applicant said that he had bought the book at the Parramatta practice site a few months after arriving in Australia.
The Tribunal discussed with the applicant numerous aspects of Falun Gong’s history, philosophy, teachings and practice. The applicant appeared, with a few minor exceptions, to quickly recognise the issue, and to be able to speak with confidence and precision about key issues, albeit in a somewhat ‘bookish’ manner. The Tribunal acknowledged that he appeared to have a good knowledge of Falun Gong, judging from the exchange at hearing. It noted that, at the Department interview on 30 November 2007, the applicant had appeared less certain and had even told the Department officer that he considered himself a ‘beginner’. The Tribunal explained that this was significant, because it would need to assess whether the applicant’s current knowledge of Falun Gong was (a) a reflection of his longstanding experience with and genuine commitment to the practice, as claimed; or (b) whether he had learned it whilst in Immigration detention for the purposes of the application. The applicant replied that he was a genuine practitioner. He thought some of the questions at the Department interview had been insignificant, and his own comment about his limited knowledge had simply been a reflection of his humble nature. (emphasis added)
This tends, rather than otherwise, to confirm that the Tribunal was drawing from its opinions about the general “appearance” of the applicant’s responses observed from listening to the tapes of the Departmental interview, and that it did not confine itself to the substance of the applicant’s statements to the delegate.
Following the hearing, the Tribunal served a letter pursuant to s.424A(1) of the Migration Act. This provides:
(1)Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
A number of matters were put to the applicant in the Tribunal’s letter dated 1 February 2008. It suggested that individually and cumulatively they might cause the Tribunal to disbelieve that he had been a practitioner of Falun Gong in China, but that he had only recently acquired knowledge of Falun Gong. Of particular relevance is the first matter which was put to the applicant:
1.Falun Gong knowledge: You were taken into Immigration detention on 1 November 2007. At a Department interview on 30 November 2007, you said that you had studied Zhuan Falun, the main Falun Gong text, for many years. You did not know how many lectures it contained (there are 9). You said that there were at least a dozen, but you were not sure because you had not yet finished reading the book. You said that you still consider yourself a beginner. Your responses appeared hesitant, particularly when compared with your oral evidence at the Tribunal hearing on 31 January 2008.
This information is relevant because your uncertainty on 30 November 2007 does not seem consistent with the level of knowledge that a long‑term practitioner and reader of Zhuan Falun would have. Specifically:- (a) even if you read the book sequentially, as you suggest, it is difficult to imagine why you would think that there are more than a dozen lectures; and (b) it is difficult to imagine why a long‑term practitioner would describe themselves as a ‘beginner’, even if they consider the teachings to be complex.
This information is also relevant because it may (when taken together with your other evidence) lead the Tribunal to infer that, at the date of your Department interview – 30 November 2007 – you were indeed relatively new to Falun Gong teachings. This may lead the Tribunal – (a) to disbelieve your claims to have been a practitioner in China and in Australia, prior to November 2007, and (b) to find that your current level of knowledge of Falun Gong is the product of recent study in Villawood IDC, for the purposes of your protection visa application.
Please note: the Tribunal recognises that the Department delegate asked a limited number of questions about Falun Gong. As noted above, this information may, however, be significant when taken together with your evidence about your experiences in China and Australia.
The critical issue raised by the applicant’s current application to this Court is how the Tribunal’s reference to “your responses appeared hesitant, particularly when compared with your oral evidence at the Tribunal hearing on 31 January 2008”, should be understood. Prima facie, with the knowledge that the Tribunal had listened to the tapes, the reference to “appeared hesitant” seems to be a reference to the observed manner of the applicant’s giving responses to the delegate, as discerned by the Tribunal from listening to the tape.
The letter’s reference to “your responses” certainly must at least have included the content of the three particular responses which were put to the applicant in the above passage. That it was the content of the responses which was at the forefront of the Tribunal’s mind when formulating its s.424A letter, is then confirmed by the subsequent paragraph explaining the relevance of “this information”.
However, it appears to me that the Tribunal was also suggesting that it was taking into account all aspects of the giving of the responses by the applicant to the delegate in relation to the three matters, and that the letter with hindsight was probably suggesting that the Tribunal had gleaned information about the manner in which he had responded to the delegate as well as the content of his answers.
I cannot explain why else the Tribunal would have referred to “appeared hesitant”. If, as is submitted by the Minister the Tribunal was merely intending to say, “your responses were uncertain”, the Tribunal would have said that, in my opinion. As I have suggested, the exchange at the hearing tends to confirm that the Tribunal drew more than this from listening to the tapes.
This issue of interpretation of the s.424A letter was debated between counsel, not only by reference to what had happened at the hearing, but also by reference to how the applicant responded to this part of the s.424A letter. His solicitor’s response received on 18 February 2008 said:
1.Falun Gong knowledge
When talking about the Fa Lun Gong (FLG), I habitually combine the 2 books together: “Zhuan Fa Lun” (9 chapters) and “Da Yuan Man Fa” (3 chapters). When I was asked “Zhuan Fa Lun” has how many chapters”, I only relied on my impression and hesitantly answered “at least 12 chapters”. As to the comment that “I was a beginner and I had not finished my studies”, it was a very modest comment from my own perspective. I deeply apologise for the misunderstanding that the above comment caused. I believe it is inappropriate to judge whether a person is a beginner and the depth of his (her) study by the conclusions on one or two questions. It is incomplete and also unfair, and I feel very regrettable.
I accept the Minister’s submission that this letter has responded only to the suggested content of the applicant’s responses about the identified three matters, and made no demand for further particulars. However, it does not persuade me to depart from the reading of the letter which I have suggested above, that is, that its author was also obliquely putting to the applicant a possible conclusion as to the appearance of his responses, based on unspecified observations taken from listening to the tape.
Unfortunately, the ambiguity about this in the s.424A letter was carried over into the reasoning of the Tribunal for affirming the delegate’s decision. It published its decision dated 26 February 2008 on that day.
The Tribunal’s statement of reasons is a meticulous examination of all the evidence before the Tribunal, supporting the conclusion which had been foreshadowed in the letter. The Tribunal did not accept that the applicant had been a genuine Falun Gong practitioner in China or Australia. It found that he had only acquired knowledge of Falun Gong in Australia in recent months at Villawood, and it found positively that he had engaged in that conduct for the sole purpose of strengthening his claim to be a refugee.
There might be issues in relation to the Tribunal’s reasoning concerning the applicant’s conduct in Australia, arising from the recent decision of the Full Court in SZJGV v Minister for Immigration & Citizenship [2008] FCAFC 105. However, these do not form the basis of the argument that I have addressed today.
Significant to the ground of jurisdictional error which was at the forefront of the applicant’s application to set aside the Tribunal’s decision, is its reasoning towards the commencement of its “Findings and Reasons” in the following paragraphs which I will number 1 to 4:
1.Overall, the applicant presented as an intelligent, alert person. However, he struggled to reconcile his claimed Falun Gong adherence with his past business activities, travel history and lack of demonstrated association with the movement in Australia until after he was placed in Immigration detention. In all, the Tribunal formed the opinion that the applicant was motivated not by a genuine Falun Gong conviction, but that he had recently learned about it for the purposes of his protection visa application. The Tribunal considers it would be imprudent to rely on this to dismiss the applicant’s claims in their entirety, however, and it therefore examines them individually below.
2.In his post‑hearing submission, the applicant stated that he was not familiar with the interpretation process, and was concerned that he may have appeared hesitant or evasive in his oral evidence. The Tribunal recognises that applicants may feel nervous during interviews, and that the interpretation process may interrupt the flow of their narrative. It makes allowances for these factors. In the present case, it is satisfied that the applicant had ample opportunity to present his claims, and that his sometimes hesitant and evasive responses were not solely attributable to any nervousness.
Falun Gong knowledge
3.From its observation of the applicant, the Tribunal formed the view that the applicant has a good working knowledge of Falun Gong’s teachings, even though some of his responses appeared to be somewhat studied. As noted at hearing, such knowledge is an important threshold question, but is of limited probative value in assessing the applicant’s claims, as it does not of itself reveal whether it is the product of long‑standing personal practice (as claimed) or of more recent intensive study (for instance, following the applicant’s Immigration detention on 1 November 2007). Nor does it necessarily indicate the applicant’s future conduct if he returns to China.
4.As noted in the Tribunal’s s.424A letter, the applicant’s responses at the Department interview in late November 2007, when he stated that there were at least a dozen lectures in the main Falun Gong text and when he described himself as a ‘beginner’, created the impression that, at that time (less than a month after being detained) he was indeed at the early stages of learning about Falun Gong. The applicant provided some comments on this – that he is in the habit of counting the lectures from several Falun Gong texts cumulatively, and that he described himself as a ‘beginner’ out of modesty and because the books have multiple layers of meaning. The Tribunal does not find these explanations persuasive. It considers that the applicant’s statements at the Department interview are strong evidence, albeit not conclusive, that he has set about learning Falun Gong in November 2007, and is not a long‑term practitioner, as claimed.
Two other paragraphs should be also extracted, which appear at the end of the Tribunal’s reasoning after the Tribunal had closely examined the applicant’s evidence about events in China and Australia. It said in two paragraphs which I shall number 5 and 6 as follows:
5.The Tribunal accepts that the applicant has been a regular Falun Gong participant at Villawood IDC, taking into account among other things his oral evidence and the petition that he presented to the Department, signed by other Immigration detainees. However, based on the applicant’s Department interview (as noted in the Tribunal’s s.424A letter) and its dismissal above of the applicant’s claims of earlier contact with and interest in Falun Gong, in both China and Australia, the Tribunal finds that he had no contact with Falun Gong before entering Immigration detention. The Tribunal notes the applicant’s comment that it would be inappropriate to make too much of his uncertain evidence at hearing as to the number of lectures in Zhuan Falun, and his description of himself as a ‘beginner’, which was a marker of his modesty. The Tribunal considers this information to be relevant, however, given the applicant’s claimed long‑term Falun Gong adherence, and particularly when considered together with its previous adverse findings.
6.Although the applicant has acquired a good working knowledge of Falun Gong teachings and practices from November 2007 when he entered Villawood IDC, the Tribunal finds that he learned this material for the sole purpose of obtaining permanent residency in Australia. The applicant struggled to identify any practical example of how his life differs from that of his non‑practitioner relatives. On the material before it, and taking into account the Tribunal’s view that the applicant is not a witness of truth, it does not accept that he has formed any genuine commitment to Falun Gong.
Counsel for the Minister accepted that these paragraphs, and their reliance upon information taken from the applicant’s interview by the delegate, are critical parts of its reasons for affirming the delegate’s decision. If some of that information had not been properly put to the applicant under s.424A(1), he accepted that jurisdictional error would have occurred.
The ambiguity from the Tribunal’s letter as to what information was taken from its listening to the tapes, is expressly carried into this reasoning. This is because in para.4 its conclusions drawn from “the applicant’s responses at the Department interview”, are explained by reference back to “as noted in the Tribunal’s s.424A letter”, and the information relied upon is not further explained or illuminated.
The Tribunal appears to think that it had adequately identified in that letter the particulars of information that it was drawing upon, rather than in its statement of reasons. Its description of the information that it drew therefore itself continued the obscurity of its letter.
However, the Tribunal’s language in the above paragraphs of its reasons tends to confirm in my mind that the Tribunal drew from its observations of demeanour at the delegate’s interview, which it observed by listening to the tapes of the applicant responding to the delegate’s relevant questions. This in my opinion, is the better understanding of the words “created the impression”.
Counsel for the Minister sought to persuade me to read those words in effect as meaning “caused me to conclude”, and that the reference to “when he stated” was not a reference to its observations when listening to a particular passage in the interview, but to particular statements made by the applicant in the interview. However, on balance, in the context I have described above, I do not accept that submission.
I have concluded that the Tribunal’s reference to “it considers that the applicant’s statements at the Departmental interview are strong evidence”, took into account the whole effect on the Tribunal of its listening to his evidence in response to the relevant questions by the delegate about his Falun Gong knowledge.
That conclusion appears confirmed by the Tribunal’s preceding reasoning in paras.1, 2 and 3 in the extract abov. It is clear that the Tribunal drew significantly from the applicant’s manner of responding to the Tribunal’s own questions, since in para.2 it records the conclusion that “his sometimes hesitant and evasive responses were not solely attributable to any nervousness”. The description “hesitant responses”, clearly directed at demeanour rather than content, tends to confirm that a similar meaning should be given to the Tribunal’s use of the same words in its s.424A letter, when referring to the delegate’s interview. In my opinion, it is more probable than not that the Tribunal compared its observations of the applicant’s demeanour at the two interviews, as well as the content of his statements on those two occasions.
The Tribunal’s subsequent reference to the interview in paras.5 and 6 extracted above has not caused me to form any other view. It confirms that the Tribunal drew significantly from whatever it took from listening to the relevant parts of the Departmental interview. It also confirms in its reference to “as noted in the Tribunal’s s.424A letter”, that it regarded itself as having sufficiently identified and explained that information in its s.424A(1) letter.
Upon my finding that the Tribunal drew from the delegate’s interview information going beyond the mere content of the applicant’s responses, I would further conclude that the Tribunal did not sufficiently comply with s.424A(1)(a) and (b) in what it said in the letter.
As in other cases where compliance with these paragraphs has been closely considered, it may be possible to characterise the non‑compliance either in terms of non‑compliance with s.424A(1)(a) or non‑compliance with s.424A(1)(b). As the Full Court indicated in Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138 at [34] and following, it is possible to identify an absence of explicit particularisation as also reflecting upon the adequacy of the Tribunal’s explanation of relevance. This is because both these paragraphs are directed to assisting the object of the section. This is to “ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review”. If either insufficient particulars, or insufficient explanation, is provided, an applicant will be denied the opportunity to arrive at that understanding, and then to respond fully and appropriately.
I have referred to this possible dual analysis in a series of cases dating back to 2005 (see SZELA v Minister for Immigration & Anor [2005] FMCA 1068 at [51], and Elrifai v Minister for Immigration [2005] FMCA 1484, (2005) 225 ALR 307, at [34]‑[42]). I have also in a number of cases identified a need for the Tribunal to provide an applicant being served with a s.424A letter, sufficient surrounding contextual information from which the particulars have been drawn, to allow the applicant “to appreciate its potential significance in the case and to allow him a real, rather than a token, opportunity to prepare a response” (SZELA at [51]). There have been cases where a Tribunal has conducted its own inquiries which have produced information which was inadequately put to an applicant, by withholding either its full inquiries or the full responses or both (cf. SZJDY v Minister for Immigration & Anor [2007] FMCA 1760 and SZIJU v Minister for Immigration & Anor [2008] FMCA 51). In another case, I was satisfied that full disclosure of the source material was not required to comply with s.424A(1), applying the established law that s.424A requires the giving of sufficient particulars and explanation, but not necessarily the provision of evidence (see SZHCN v Minister for Immigration & Anor [2006] FMCA 531 at [30]‑[32]). Whether in any particular case, s.424A(1) is satisfied without the contextual evidence being provided to the applicant, must depend upon the nature of the information which the Tribunal takes from that evidence, and its ability sufficiently to describe and explain that information. If in doubt, the Tribunal should err on the side of providing all the relevant evidence to the applicant, as part of the provision of particulars or its explanation of their relevance.
The Full Court has recently adopted similar reasoning in SZKCQ v Minister for Immigration & Citizenship [2008] FCAFC 119. Stone and Tracey JJ said at [4]:
For the appellant to understand why the information provided in response to the High Commission’s enquiry might be relevant to the review he needed to understand the context in which that information was given; in other words he needed to be informed of the questions to which the two gentlemen were responding. …
In that case, the applicant had been given the full contents of responses to inquiries conducted at its request by the High Commission, but had not been given the questions which the High Commission was asked to obtain information about.
The present case raises circumstances different from the above cases, but in my opinion the sufficiency of the Tribunal’s letter is to be similarly tested, by considering whether it provided all necessary contextual information required to allow the applicant to understand and respond to what was being put to him. In my opinion, this required him to be provided with the relevant part of the tape, or at least a much fuller description of his demeanour which had been observed by the Tribunal when listening to it.
On one view, information taken by way of the Tribunal’s impressions about a witness observed from listening to a tape might be regarded as “particulars” of the information from which the Tribunal might form the opinion, which was put to the applicant, that “your responses appeared hesitant”. If so, the failure to provide these particulars has resulted in a breach of s.424A(1)(a) in the present case.
Alternatively, and I think probably the preferable view, is that the Tribunal’s letter failed to allow the applicant an opportunity properly to understand how the Tribunal might conclude that he had responded “hesitantly” to the delegate. A much fuller description of its possible observations of demeanour was necessary, and probably also the provision of a copy of the relevant parts of the tape, before the Tribunal could have complied with s.424A(1)(b).
I therefore uphold the first ground of jurisdictional error which was raised by the applicant’s amended application, and it is unnecessary for me to address other grounds of review which have been submitted by the applicant. The Minister does not submit that relief should be denied, notwithstanding my findings of jurisdictional error.
Before concluding this judgment, I note that the applicant is still held in immigration detention, but was not brought to Court today.
This apparently was the result of confusion on the part of the Department of Immigration and its representatives, rather than any belief that the applicant was not entitled to be brought to Court.
I decided to proceed with the hearing due to the applicant being represented by counsel, and in the absence of any strong objection by him to the hearing proceeding in the absence of the applicant. However, if objection had been taken, I would have adjourned the hearing to allow the applicant to be brought to Court.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 21 July 2008
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