SZMIA v Minister for Immigration
[2008] FMCA 1276
•4 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMIA v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1276 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of the People's Republic of China – claiming fear of persecution for reason of his political opinion – whether Tribunal failed to comply with Migration Act 1958 (Cth) s.424AA – whether it is jurisdictional error not to comply with s.424AA – no jurisdictional error. |
| Migration Act 1958 (Cth) ss.424A, 424AA, 474 |
| SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 SZBEL v The Minister for Immigration & Citizenship (2006) 228 CLR 152 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 SZMCD v Minister for Immigration and Anor [2008] FMCA 1039 SZLQD v Minister for Immigration & Citizenship [2008] FCA 739 |
| Applicant: | SZMIA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1335 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 4 September 2008 |
| Date of Last Submission: | 4 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Reynolds |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent's costs in the sum of $3,850.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1335 of 2008
| SZMIA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of the People's Republic of China. He asks the Court to conduct judicial review of a decision of the Refugee Review Tribunal that was handed down on 29th April 2008. The Tribunal affirmed the decision of a delegate of the Minister for Immigration & Citizenship not to grant the Applicant a Protection (Class XA) visa.
In his application the Applicant asks the Court to make these orders:
i)setting aside the decision of the Refugee Review Tribunal; and
ii)remitting his application to a differently constituted Refugee Review Tribunal to be determined according to law.
I have already made it clear during the hearing that the Court can only make such orders if the Court is satisfied that the Tribunal decision is affected by jurisdictional error. I would also point out at this stage that if the Court were to be persuaded that an order in the nature of Mandamus should be made remitting the Applicant's application to the Refugee Review Tribunal to be determined according to law, it is inappropriate for the Court to make an order requiring that the Tribunal be differently constituted.
The Full Court of the Federal Court in SZEPZ v Minister for Immigration & Multicultural Affairs[1] has made it clear that it is, to say the least, doubtful that the Federal Magistrates Court has the power to make an order relating to the constitution of the Refugee Review Tribunal on remitting a matter to that body. The constitution of the Tribunal to hear a particular case is a function of the Principal Member of the Refugee Review Tribunal. In any event the Court must be satisfied that a jurisdictional error has been made out.
[1] [2006] FCAFC 107
In his application the Applicant sets out three grounds upon which he relies to show that there has been jurisdictional error. The Applicant claims that:
(a)The Tribunal decision is affected by apprehended bias.
(b)The Tribunal failed to comply with its obligations under s.425 of the Migration Act.
(c)The Tribunal failed to comply with its obligation under s.424AA of the Migration Act.
The Minister for Immigration & Citizenship, who is the First Respondent to the application, has filed a Response on 4th June 2008 denying that any jurisdictional error appears in the Tribunal decision. The lawyers for the Minister have also filed a written outline of submissions on 28th August 2008. The Applicant indicated that he was unsure whether he had received a copy of that document or not. For more abundant caution the lawyers for the Minister have provided the Applicant with a spare copy of the submissions and I allowed time at the commencement of the hearing for the Court's interpreter to take the Applicant through the document so that the Court could be satisfied that the Applicant was aware of what it was that the Minister would be putting to the Court in support of the Minister's case.
The Applicant has not filed a written Outline of Submissions, although his application contains some detailed particulars setting out the reasons why he relies on the three grounds that he does.
Background
A brief background to the matter is that the Applicant arrived in Australia on 21st September 2007. He applied for a Protection (Class XA) Visa on 2nd November 2007. He applied on the basis of a well-founded fear of persecution for the Convention reason of political activity or political opinion. He is a former member of the People's Liberation Army. He claimed that when he joined the Army he was assured that at the conclusion of his three-year period of service he would be provided with employment. Unfortunately, he was not provided with employment opportunities.
The Applicant set out in a statutory declaration that accompanied his application a detailed history and he claims that he was cheated by the authorities. He set out how he obtained employment without the assistance of the authorities but his other former colleagues, demobilised soldiers, were not as lucky as he was and remained unemployed after they had completed their military service. He claimed that he was particularly aroused to action after a former colleague in the Army had committed suicide and they commenced political activity which attracted the unwelcome attention of the authorities. He claimed to have been detained by the police along with a colleague but whilst he was subsequently released his colleague was sent to a labour camp. He claimed to have made arrangements to leave China by clandestine means and arrived in Taiwan where he was able to obtain a Taiwanese passport on 20th September 2007.
He arrived in Australia on 21st September 2007 on that Taiwanese passport in the name of another person. His statutory declaration submitted with his application for a protection visa sets out why it was that he acted in that way to leave China and travel to Australia, and as he said:
“As a person who has been detained by the PSB and who has still been monitored by the police it would almost impossible for me to get my passport.”[2]
[2] See Court Book at page 29.
A delegate of the Minister for Immigration & Citizenship considered the Applicant's application for a visa. On 4th January 2008 the delegate refused the grant of a visa. The delegate's reasons are set out in a decision record that appears at pages 40 through to 48 of the Court Book. Essentially, the Applicant was not able to satisfy the delegate as to the veracity of his claims. At one stage the delegate said:
“I do not find it plausible that the applicant would be able to continue with his claimed activities when being under close monitoring.”[3]
[3] See Court Book at page 47.
The delegate considered Independent Country Information but was not satisfied with certain claims due to the lack of corroborating evidence provided. The delegate also described the Applicant's claims as “a series of vague and unsubstantiated claims”[4].
The delegate was not satisfied and found that the applicant did not face a real chance of persecution occurring and found that his fear of persecution as defined under the Refugees Convention was not well founded.
[4] Court Book at page 47
Application to the Refugee Review Tribunal
After the delegate refused the Applicant's application for a protection visa, the Applicant then applied to the Refugee Review Tribunal for a review of the delegate's decision. The Court Book shows that his application for review was received by the Refugee Review Tribunal on 1st February 2008. The application shows that the Applicant was represented by a migration agent and the Tribunal communicated with the Applicant by means of correspondence addressed to the migration agent. The Applicant did not provide any further documentary evidence to the Tribunal when the application for review was submitted.
The Tribunal wrote to the Applicant on 19th February 2008 inviting him to attend a hearing to take place on 31st March 2008. The Applicant attended that hearing where he gave evidence with the assistance of an interpreter in the Mandarin language.
The Tribunal signed its decision on 16th April 2008 and handed that decision down on 29th April 2008. In the decision record the Tribunal considered the Applicant's claims in evidence taken from the statutory declaration that he provided with his application for a visa and the Applicant's evidence to the Tribunal and a number of documents that the Applicant provided to the Tribunal. Interestingly, the Tribunal referred to material contained in the Departmental file:
“There are reports from third parties (folios 41-43 and 48-49). The Tribunal has not in any way, relied on any information contained in those reports, in an adverse manner to the applicant.”[5]
[5] See Court Book at page 151.
The Tribunal’s Findings and Reasons
The Tribunal's findings and reasons are set out in the Court Book at pages 157 through to 162. The Tribunal noted that the Applicant had travelled to Australia using a Taiwanese passport in the name of another person, but noted that the Applicant had claimed that his real name was something else and that he was a citizen of the People's Republic of China.
The Tribunal noted that he had provided documents to support his real identity including an ID card from the People's Republic of China and documents relating to his military service, in the name that he claims is his real name. He had also provided the Tribunal with photographs showing himself engaged in military activities. Interestingly, the Tribunal went on to say:
“The Tribunal is concerned about the applicant's unlawful use of the Taiwanese passport, which could raise doubts about other documents provided by the applicant. The Tribunal has carefully considered all the documents relating to the applicant's identity and the Tribunal has decided to assess the applicant's claims on the basis that the applicant is a national of the People's Republic of China and that he is outside that country.”[6]
[6] See Court Book at page 157.
I might comment in passing that this Court regularly sees cases where Applicants claim to have left the People's Republic of China lawfully on a lawfully obtained passport in their own name and have not had any difficulty in doing so. It is the Court's experience that the Tribunal has frequently commented upon such a claim adversely on the basis that people who have come to the adverse attention of the Public Security Bureau or other Chinese authorities would be extremely unlikely to be allowed to leave China on their own passport in their own name.
Here the Applicant has made it quite clear that he had come under adverse attention of the authorities, had arranged to be smuggled out of China to Taiwan and obtained a Taiwanese passport. Yet again the Tribunal has raised a query about the unlawful use of the Taiwanese passport which it said could raise doubts about other documents that he had provided.
With respect, it appears that this is a little bit of a Catch 22 situation. If the Tribunal is going to reject applicants who leave China lawfully on a passport issued in their own name by the People's Republic of China and then criticises applicants who leave China unlawfully and obtain another passport in a different identity, it would seem to me very hard for any applicant to satisfy the Tribunal that he or she was in fact a genuine applicant for a protection visa.
In this case, however, the Tribunal, after making those comments has proceeded to accept that the Applicant is a citizen of the People's Republic of China and is the person that he says that he is and has assessed his claims against the People's Republic of China and has not made any adverse finding as to his credibility based on the circumstances in which he claims to have left his homeland. However, the Tribunal was not satisfied about the credibility of the Applicant's claims to be entitled to protection under the Refugees Convention. The Tribunal expressed itself to be satisfied that the Applicant had fabricated the central claims of his account in order to bolster his application for a protection visa.
In a section of its findings and reasons entitled "Evidentiary Concerns," the Tribunal set out, in paragraphs 69 through to 86 why it found that the Applicant was not, in its view, a credible witness. The Tribunal referred to the Applicant's demeanour on giving evidence, saying:
“In the course of the hearing, the applicant gave the impression of being evasive, argumentative, and he did not want to answer basic questions asked of him by the Tribunal. On many occasions, he avoided answering questions directly and insisted that he wanted to tell a story from the beginning. He was advised that he would have a full opportunity to do so in the course of the hearing. When invited to tell his ‘story’, he essentially had nothing to add. The Tribunal got an impression that the applicant had a pre-prepared speech from which he did not want to divert. The Tribunal is of the opinion that the applicant's responses were characteristic of someone who had rehearsed a pre-prepared response. His answers were also internally inconsistent, and inconsistent with his own written claims.”[7]
[7] See Court Book at page 157.
The Tribunal then went on to consider the Applicant's claims and it set out its concerns about matters in paragraphs 71 through to 85 of the decision. The Tribunal then went on to say:
“The Tribunal appreciates that an adverse credibility finding is a serious finding which must be made cautiously. The Tribunal acknowledges that some of the evidentiary problems mentioned above may be perceived as being minor when considered individually. However, the Tribunal has conducted a lengthy hearing during which the applicant was observed very carefully. The applicant came across as being unusually argumentative and defensive which gave an impression of not wanting to respond in a frank manner but rather in a coached and pre-prepared style. Those observations, the above noted concerns, and in consideration of the evidence as a whole, have led the Tribunal to find that the applicant is not a credible witness.”[8]
[8] See Court Book at page 161.
The Tribunal found that the Applicant did not have a well founded fear of persecution and affirmed the decision not to grant the Applicant a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court by filing an application and an affidavit in support on 26th May 2008. In his application he sets out three grounds, being:
i)apprehended bias;
ii)failure to comply with s.425 of the Migration Act; and
iii)failure to comply with the Tribunal's obligations under s.424AA of the Migration Act.
Ground 1 – Apprehended Bias
Dealing first of all with the ground of apprehended bias, the Applicant referred to the Tribunal's adverse credibility findings and claimed that the Tribunal failed to provide any evidence in support of its allegation. He went on to claim that the Tribunal at the hearing had never given him a genuine chance to allow him to provide complete oral evidence in support of his claims, and had never given him a real opportunity to present his argument against the concerns arising from the Tribunal's review.
The Applicant went on to express a belief that the Tribunal had already made a decision before the hearing, and that the purpose of the hearing was just to pick up some reasons or to make some inconsistencies amongst his evidence in order to refuse his claims. He reiterated his claim of apprehended bias and claimed it was impossible for the Tribunal to make any genuine attempt to consider his claims fairly and properly either at the Tribunal hearing or at the time when it made its final decision. He claimed to have been very much confused by the Tribunal's questions, but at the hearing was strongly impressed that the Tribunal had never, ever intended to consider his claims fairly and properly.
I would comment that the Applicant has made claims about apprehended bias but his claims appear to remain in the area of assertions based upon what he claims were his own impressions. He provided some particulars when referring to the Tribunal's credibility findings, but provided little in the way of evidence. He did claim in the application and also in an oral submission to the Court that the Tribunal never gave him a genuine chance to provide complete oral evidence, and he complained that the Tribunal asked him questions which were confusing.
Ground 2 - Failure to comply with s.425
The Applicant complains also in respect of the second ground, that the Tribunal failed to comply with its obligations under s.425 of the Migration Act, but the particulars that he provided consisted of an assertion that the Tribunal had already made its decision before the hearing, and the purpose of the Tribunal hearing was just to seek reasons "according to the Tribunal's tastes for its final decision." He reiterated his belief that he had not been given a fair opportunity at the Tribunal hearing.
Ground 3 - failure to comply with s.424AA
In respect of the third ground he claimed that the Tribunal failed to comply with its obligation under s.424AA of the Act. He claimed that the Tribunal might have provided him with some particulars of information which it considered would be the reason or a part of the reason for affirming a decision that is under review, but failed to give clear particulars of the information and failed to ensure as far as is reasonably practicable that he understood why the information was relevant to the review and the consequences of the information being relied on in affirming a decision that is under review. He took issue with the Tribunal as simply rejecting his claims with what he said were only two reasons, and expanded upon these claims at some length in his oral submissions to the Court.
Applicant’s Submissions
The Applicant told the Court in respect of the claim of apprehended bias that the Tribunal had given him the impression that it had made up its own mind beforehand, and he reiterated his claim that the Tribunal had asked vague questions which he could not answer properly. When asked from the bench what sort of questions they were, the Applicant told the Court that he was asked questions where he was told that he could only say "yes" or "no" to answer the question and was not able to expand upon it. He told the Court that the Tribunal had not provided him with a fair hearing under the provisions of s.425 of the Act, and claimed that he had not been given an opportunity to present his arguments. He claimed that he wanted to explain more clearly but the Tribunal did not give him the opportunity to do so.
This claim segued into a claim of a breach of an obligation under s.424AA of the Act. The Applicant told the Court that the Tribunal must provide to the Applicant information which would be the reason or part of the reason for affirming the delegate's decision. He claimed that the effect of s.424AA is that he should have been given an opportunity to prepare a reply and make a written statement. He claimed that he should have been given the opportunity to apply for an adjournment of the proceedings and submitted to the Court there should have been a second hearing in which he was able to reply to the concerns of the Tribunal given if, in his view, the Tribunal had complied with s.424AA.
On being asked by the bench about his claim that he should have been given the opportunity to apply for an adjournment, the Applicant told the Court that he did not in fact apply for an adjournment. The Applicant did not seek to provide either a transcript of the Tribunal hearing or a tape of the Tribunal hearing.
First Respondent’s Submissions
Mr Reynolds of counsel who appeared for the Minister submitted that there was no evidence of apprehended bias and referred the Court to the test for apprehended bias set out by the High Court of Australia in Re Refugee Review Tribunal; Ex parte H[9]. The test, he submitted - and in my view correctly - is whether a reasonable bystander or a fair minded lay observer might reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the resolution of the question which the decision maker has to decide. Mr Reynolds also submitted, in respect of the claim that there was no evidence to support the finding quoted in the application about the Applicant's lack of credibility, that that finding was in fact founded upon matters that the Tribunal had set out at some length in the decision record, including the Tribunal's own observations of the Applicant when giving evidence at the hearing.
[9] (2001) 179 ALR 425; [2001] HCA 28 at [27] – [31]
Mr Reynolds submitted that the Applicant had not particularised in respect of the alleged breach of s.425 the issues that were dispositive of the application which he claimed the Tribunal had failed to draw to his attention. The Applicant had not particularised also why it was that he was entitled to assume that any such issue would have been decided in his favour and submitted that it was not apparent how the Tribunal had breached the principles set out by the High Court in SZBEL v The Minister for Immigration & Citizenship[10].
[10] (2006) 228 CLR 152
Mr Reynolds also submitted in respect of the Applicant's claim of a failure by the Tribunal to comply with s.424AA of the Act that the Applicant had not provided any specific claims in his application even though he did go to some length at the hearing. He submitted that s.424AA is a provision that if it is complied with in respect of information relieves the Tribunal from any requirement under s.424A to put the information to the Applicant for comment in writing, but a breach of s.424AA does not constitute jurisdictional error per se. Non-compliance only prevents the Tribunal relying upon s.424AA in answer to an alleged breach of s.424A.
He further submitted that it is apparent from a fair reading of the Tribunal decision record that the Tribunal did comply with s.424AA. It put matters to the Applicant for comment, stated that it might decide the matter adversely to the Applicant and informed the Applicant that he had have further time to respond to any matter put to him, which the Applicant did not require.
Mr Reynolds specifically drew the Court's attention to paragraph 66 of the Tribunal decision record, which can be found at pages 156 and 157 of the Court Book - and I will quote that paragraph in full:
“At the end of the hearing the Tribunal asked the applicant if he had anything else to say; he said he did not. The Tribunal noted that as the Tribunal had mentioned at the beginning of the hearing he was entitled to seek additional time to comment on and/or respond to the information that he had been given in the course of the hearing, which the Tribunal considers could or would be a reason for affirming the decision to refuse him a visa, and the Tribunal asked him if he needed further time to comment and/or respond to the information. The applicant confirmed that he does not need any more time.”[11]
[11] See Court Book at pages 156-157.
Court’s Considerations
It is quite clear that an allegation of bias, be it apprehended bias or actual bias, is a serious allegation. Bias must be strictly alleged and strictly proved. The test for apprehended bias is indeed set out in the decision of the High Court in Re Refugee Review Tribunal; Ex parte H to which I have previously referred. It may well be that the Applicant takes issue with the Tribunal's adverse credibility findings about his evidence. The Tribunal, however, has given extensive reasons to which I have referred as to why it was not satisfied that the central claims of his account were not credible.
It is well established that credibility is a finding of fact. It is quite clearly a matter for the Tribunal Member. As with any finding of fact, if there is evidence upon which such a finding of fact is open to the Tribunal, then there is no scope for a Court conducting judicial review to interfere. In my view the finding as to the Applicant's credibility was a finding that was open to the Tribunal for the reasons that it gave.
I am not satisfied that any jurisdictional error has been made out in that regard, and it is clear that the Tribunal decision must be considered on the basis that the Tribunal made a comprehensive finding and a detailed finding rejecting the credibility of the Applicant's account.
There is no evidence other than the Tribunal decision record itself and the Applicant's assertions that would support a finding of apprehended bias. The Full Court of the Federal Court has looked at the question of bias in SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[12]. Their Honours pointed out at paragraph 43 of the decision that it is a rare and extreme case that any evidence of bias will be ascertained when all that is relied on is the Tribunal's written reasons for decision; and in this case, apart from the Applicant's assertions that the Tribunal had made up its mind beforehand, there is no other evidence.
[12] [2002] FCAFC 361
I am satisfied that the Applicant's first ground has not been made out. There is no evidence of apprehended bias and Ground 1 must be rejected.
I turn now to the claim of a breach of s.425 of the Migration Act. The Tribunal wrote to the Applicant inviting him to attend a hearing to give evidence and present arguments about his case. The Tribunal's letter to the Applicant of 19th February 2008 said:
“The Tribunal has considered the material before it but is unable to make a favourable decision on this information alone.”[13]
[13] See Court Book at page 61.
The Applicant, then, was aware that at the hearing it was up to him to present evidence and present arguments as to why his claim should be accepted. He did attend the hearing. He did give evidence. The Tribunal has set out in some detail a summary of that evidence. The Tribunal hearing record can be found at pages 135 and 136 of the Court Book. It shows that the Tribunal obtained the services of an interpreter in the Mandarin language who was qualified at NAATI level 3. That interpreter is shown as arriving at 10:20am and the hearing is shown to have commenced at 10:42am. The hearing ended at 1:25pm at which stage the interpreter left. The hearing, therefore, took well in excess of two hours - a little over two and a half hours - and indeed, the evidence presented is set out in detail in the Tribunal decision record.
In the absence of a transcript or other evidence, there is nothing to show that the Applicant was cut off in giving his answers and was not able to express himself clearly and cogently with the assistance of an interpreter. There is nothing to suggest that the Tribunal restricted the Applicant to answering questions just with "yes" or "no," or let alone asked him questions that were in any way confusing. There is no complaint that the interpreter provided at the hearing was in any way unqualified for the task that was given to her. A perusal of the delegate's reasons for decision indicates that the delegate was just not satisfied, on the basis of what he described as the Applicant's vague and unsubstantiated claims, some of which the delegate described as not plausible, that the Applicant had made out an appropriate case for the grant of a protection visa.
At the hearing the credibility of the central matters in the Applicant's claim were also not accepted by the Tribunal. There was no fresh issue. There was no issue that the delegate had accepted that the Tribunal then turned around and did not accept. The issue before the delegate was the same as the issue before the Tribunal, which is, the credibility of the Applicant's account.
In my view there is no evidence that in conducting the hearing the Tribunal in any way failed to comply with the principles set out by the High Court in SZBEL and Minister for Immigration & Citizenship. The Applicant's second ground, alleging that a breach of s.425 of the Migration Act has occurred is therefore not made out.
The third ground relates to a claim that the Tribunal failed to comply with its obligation under s.424AA of the Migration Act. I think it should be made quite clear that the Tribunal is not under any obligation to apply s.424AA at all. It is an option given to the Tribunal at it discretion.
The Applicant's claim that the Tribunal should have put matters to him and allowed him time to make a prepared reply or provide further written submissions does not accord with the requirements of s.424AA. It is certainly not the case, as the Applicant submits, that s.424AA of the Act places an obligation on the Tribunal to provide a second Tribunal hearing so that the applicant can answer any doubts or concerns that the Tribunal has about the Applicant's case. That is not the effect of s.424AA at all.
I have previously said that in my view s.424AA does not of itself impose any obligation on the Tribunal. It provides a way for the Tribunal, if it chooses to do so, to give oral particulars of adverse information to an applicant at a hearing that may otherwise need to be given in writing under s.424A(1). It is clear that no obligation is placed on the Tribunal to do so:
“If an applicant is appearing before the Tribunal because of an invitation under s.425A:
(a)the Tribunal may orally give to the applicant 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;…” (s.424AA).
Clearly there is a discretion given to the Tribunal as to whether it will follow the procedure in s.424AA or not. There is no obligation to do so (see SZMCD v Minister for Immigration & Anor[14] at [57]).
[14] [2008] FMCA 1039
In my view, and with respect, the decision of Marshall J in SZLQD v Minister for Immigration & Citizenship[15], with its reference to the explanatory memorandum in the legislation, provides the key to understanding the operation of s.424AA. Once it is understood, as the explanatory memorandum says, that s.424AA complements the Tribunal's existing obligations under s.424A, it becomes clear why there is no equivalent to sub-s.424A(3)(a) and s.424AA. There does not need to be.
[15] [2008] FCA 739 at [12]
The Tribunal has a discretion whether or not to give oral particulars of information to an applicant at a hearing. If it chooses to do so then it must do so in the way set out in s.424AA(b). If the Tribunal complies with the requirements of s.424AA, the consequence is that s.424A(2A) applies and the Tribunal is relieved of its obligation under sub-s.424A(1). If the Tribunal chooses to give oral particulars of information under s.424AA but fails to comply with the requirements of s.424AA(b), the consequence is not that it falls into jurisdictional error. The consequence is that s.424A(2A) is not engaged. That may or may not mean that the Tribunal has failed to comply with s.424A(1).
In my view there is no breach of s.424AA. Even if there were, it does not follow that any jurisdictional error would arise, because a failure to comply with s.424AA is not of itself a jurisdictional error. The consequence of a failure to comply with s.424AA is the same as the consequence of not adopting the procedures set out in s.424AA, namely that s.424A(2A) will not come into operation.
There was in this case no obligation to comply with s.424AA. The material before the Court was evidence that the Applicant had given as part of his own claim. In the end that material was not accepted. In any event, as I referred to earlier, and as set out at pages 156 and 157 of the Court Book, the Tribunal did give the Applicant an opportunity to have further time to comment or respond to the information and the Applicant said that he did not need any more time.
The Applicant's third ground, that there was a breach of s.424AA amounting to jurisdictional error, is clearly not made out.
Conclusion
In my view there is no jurisdictional error. The Tribunal decision is a privative clause decision as defined by sub-section 474(2) of the Migration Act. Accordingly, there is no ground for any relief in the way of Certiorari or Mandamus and it follows that the application must be dismissed with costs.
This is an appropriate matter for costs in favour of the First Respondent.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 11 September 2008
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