SZNAA v Minister for Immigration - [2009] FMCA 772

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNAA v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 772

MIGRATION – RRT decision – Ghanaian national claiming persecution as homosexual – disbelieved by Tribunal – email evidence from witnesses given no weight – email inquiries conducted by Tribunal – formalities attaching to s.424(2) not required – no jurisdictional error established – application dismissed.

Migration Act 1958 (Cth), ss.91R(1)(c), 91R(3), 424, 424(2), 424(3), 424AA, 424B, 424B(2), 424B(3), 425

Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, [2003] HCA 30
SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487, [2008] FCAFC 91
SZKTI v Minister for Immigration & Citizenship (2008) 168 FCR 256
SZLPO v Minister for Immigration & Citizenship [2009] FCAFC 51
SZMBS v Minister for Immigration & Citizenship [2009] FCAFC 65
SZNJT v Minister for Immigration & Anor [2009] FMCA 730
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

Applicant:

SZNAA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3172 of 2008

Judgment of:

Smith FM

Hearing date:

3 August 2009

Delivered at:

Sydney

Delivered on:

21 August 2009

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr J A C Potts

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3172 of 2008

SZNAA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant arrived in Australia in October 2007, travelling on a tourist visa he obtained in Berlin in a Ghanaian passport issued in the name of SB. On 28 November 2007, he made an application for a protection visa in a different name, AB, assisted by a registered migration agent. He claimed that he was the cousin of SB, who is a person with a right of permanent residence in New Zealand. He presented a Ghanaian passport in the name of AB to establish his separate identity and Ghanaian nationality.
In his visa application he made refugee claims which he subsequently elaborated in statements and evidence to the Department of Immigration and the Tribunal. He claimed to “have been gay all my life”, and at school to have commenced a homosexual relationship with GA, who came from a Muslim family. He and GA were involved in the organisation of gay rights conferences in 2006 and 2007, although the 2006 conference was banned by the government. In August 2007, the applicant was injured and GA was killed, after they were seen kissing in public. GA’s family blamed the applicant for the death, and he was told that they had arranged for a criminal gang to find him and kill him. He therefore hid, arranged dental work to repair two teeth he lost in the assault, and borrowed his cousin’s passport to travel to Europe and then to Australia. After coming to Australia, he had lost SB’s passport, and discovered his own passport in his bag.
A delegate of the Minister investigated the identities of AB and SB, and conducted an interview of the applicant in the presence of his agent. On 19 February 2008, the delegate refused the visa application. The delegate gave reasons for doubting the veracity of the applicant’s claims, including his involvement in gay rights conferences, his medical treatment before leaving Ghana, the theft of the SB passport and discovery of the AB passport, his departure from Ghana, and his reasons for travelling from Amsterdam and Germany. The delegate noted that two visa applications in the name of SB had been refused in 2006 by the Nairobi post of the Department. She said: “it is difficult to accept the flow of events as described by the applicant, given the implausibility of many of his claims”. She also referred to information concerning the treatment of homosexuals in Ghana, and thought that relocation of the applicant within Accra was “a reasonable and viable option” for him to avoid discrimination amounting to persecution.
On appeal to the Tribunal, the applicant attended two hearings of the Tribunal which were held on 11 June 2008 and 8 October 2008. He was accompanied on both occasions by observers, including a barrister who had given him de bono assistance, when helping him to prepare a detailed unsworn statement and a written submission which addressed the points made by the delegate. The applicant was subsequently given the recording of, at least, the second hearing, but has not tendered a transcript. I have no reason for doubting the description of the hearings given by the Tribunal in its statement of reasons.
The applicant’s written submissions to the Tribunal prior to its first hearing included copies of recent email correspondence between the applicant and a number of people. They included the applicant’s brother GB, several acquaintances in Ghana, and a resident of the United Kingdom, BB, whom the applicant claimed to have met and assisted in the course of the claimed 2006 gay rights conference. The applicant’s exchanges with BB during March and April 2008 are at Court Book 190 to 193, and show the applicant requesting BB for “some detail of what you know about” BB’s visit to Accra because “the Australia immigration think am not telling the truth that am not gay and that I did not meet any of you who came to Ghana for the conference which was banned by the government” and “because my barrister need some information from you”. BB’s email response to the applicant suggested that he had met the applicant and “your partner A” “when we visited for the Gay conference”.
These emails were discussed with the applicant at the first hearing of the Tribunal, and the applicant showed the Tribunal member on its computer the correspondence in his Yahoo internet mail box. The Tribunal member also questioned the applicant about his claimed identity and history, putting to him many points raising doubts, including whether there had been any gay rights conference in Accra in 2006. In particular, the Tribunal discussed the applicant’s meeting with BB. It said:
75.When asked about what he did in connection with that conference, he said that he lent his car to international delegates who came to attend the conference, and gave them some money. He met them around 15 or 16 August 2006, on a week day. These people left Ghana at various times. The man from the UK, BB, left some time in September. He may have arrived in Ghana earlier than 15 August, but it was then that the applicant met him. He described that man as 30‑40 years old, with short brown hair and a moustache, shorter than the applicant but of medium build – “a bit plump.” He lived in London. The applicant said he did not know of any nickname the man used, and that he knew him only as “B.”
76.The Tribunal asked if the applicant had any objections to the Tribunal making direct contact with Mr B and seeking evidence from him. The applicant said that he did not have a telephone number for Mr B, but would send him an email message.
…
78.The Tribunal said it had noted the series of e‑mails he had submitted, but had some doubts about their provenance. The wording of some of them appeared to be contrived. For example, the e‑mail said to be from his brother and dated 27 March 2008 reminded him, the applicant, of his workplace. There would be no need for his brother to tell him where he worked. Similarly, the message the applicant claims he sent to “YB” was a message forwarded on from another message which was also sent to the same person. The Tribunal said the applicant should be aware that it might not necessarily accept that these emails reflected genuine, unprompted correspondence between himself and others. It asked if he could contact the various people and ask them to send any statements they wished the Tribunal to consider by email directly to it, as having messages directly from the sender might help it to assess what reliance to place on them.
79.His barrister expressed concern that the Tribunal’s official email address (ending in “.gov.au”) would reveal that the applicant was in Australia, something he was reluctant to do. However, the Tribunal identified a private email address which ended simply in “.com” and the applicant agreed to request his friends and relatives to send email messages to the Tribunal at that address. [See below for discussion regarding these emails.] The Tribunal invited the applicant to log in to his email provider and show the messages as he had received them. He did so.
Subsequent to the first hearing, the applicant forwarded electronically to the Tribunal copies of some further emails he sent to his previous correspondents, and it received emails from some of these persons at the Tribunal member’s own email address. This correspondence is summarised by the Tribunal in its statement of reasons, and is contained in the Court Book. It is necessary to detail only the correspondence between the applicant, the Tribunal member, Mr MacCarthy, and BB, since this was more extensive than with the other witnesses, and since all the issues in relation to s.424 of the Migration Act 1958 (Cth) arising from these events can be addressed by reference to this correspondence. It consisted of the following emails:
i)From the applicant to BB on 12 June 2008 at 11.28 am (CB 240), telling him: “the Refugee Review Tribunal has asked if they can contact you directly to confirm Email you sent me offering to assist the tribunal. Could you please reply to Mr Bruce Maccarthy a member who has also received this email and provide him with your Telephone Number or other way round he will be more than happy to give you a call or contact you directly. Here is his email address [address]”.
ii)From the applicant to BB on the same day at 11.58 am (CB 241), repeating this request.
iii)From BB to Mr MacCarthy on 17 June 2008 (CB 242), stating: “I got your email address from [the applicant], i believe you would like to find out some information. Please do mail back and we shall take it from there”.
iv)From BB to Mr MacCarthy on 21 June 2008 (CB 257), stating: “This is my second mail regarding [the applicant] from Ghana issue. Do do contact me”.
v)From Mr MacCarthy to BB on 29 June 2008 (CB 257), stating: “I would like to speak to you regarding [the applicant]. Would you be willing to give evidence on oath regarding your knowledge of him and the circumstances in which you came to know him? If so could you please provide me with a UK telephone number …”.
vi)From BB to Mr MacCarthy on 30 June 2008 (CB 256), stating: “That wont be a problem, however i don’t have a landline. Communication via email will be the appropriate channel for me”.
vii)From Mr MacCarthy to BB on 1 July 2008 (CB 256) stating: “Do you have a mobile phone? That would be better than email, as it is more immediate, and would better facilitate a conversation”.
viii)From BB to Mr MacCarthy on 10 July 2008 (CB 256), stating: “Email will be fine for me”.
ix)From Mr MacCarthy to BB on 11 July 2008 (CB 255), explaining why “I am most anxious to speak directly to you” in preference to an email correspondence. The email concluded:
At this stage, of course, I know very little about you and about what information you can give me about [the applicant] which will assist his application.
I will of course consider anything you may care to volunteer via email about yourself, your knowledge of [the applicant] and the circumstances in which you met him but, without speaking directly to you, I may not place a lot of reliance on it as support for [the applicant’s] claims.
Surely there must be a telephone number at which I can reach you, and a mutually convenient time of the day when you could discuss things with me for a few minutes.
x)From BB to Mr MacCarthy on 13 July 2008 (CB 255), stating:
Hi
Am really confused and a bit offended about the content of this email, i was under the impression that you just wanted to know how i got know [the applicant] at the Gay conference in ghana, i rather though email will serve as a better support becourse you will have it on record as opposed to telephone call.
Please be more direct of what you would like to know and maybe i can assist.
Thanks.
xi)From Mr MacCarthy on a date which is unclear (see CB 254), explaining that “we normally take formal evidence (on oath or affirmation) from witnesses such as yourself”, and giving a list of specific matters about “the gay Conference in Ghana” which “I want to talk to you about”.
xii)From BB to Mr MacCarthy on 13 August 2008 (CB 253), ignoring the request to give evidence on the phone, but giving itemised evidence in which “I have tried to answer your questions to the best of my knowledge, hope it clears or helps you in your decision making. Please relate my numbering to your questions”. The flavour of the correspondence can be illustrated by Mr MacCarthy’s last item: “something about yourself to compare with what he has told me about you”, to which BB responded: “I am BB, medium build, nice looking guy, fourty five years of age, businessman, guy man and christian”.
Following this exchange, the applicant attended the second hearing of the Tribunal on 8 October 2008. His barrister was in attendance, and the applicant elected to use English. The applicant was given a copy of the email correspondence between BB and Mr MacCarthy, and various concerns about it were put to him, including doubts whether “the e‑mail message in question was written by a middle‑aged Englishman”. The Tribunal also raised other issues, including whether there was a gay conference in 2006, the identity of SB, and other issues. The Tribunal said that, at the end of the hearing:
112.The Tribunal said that it had been under the impression that he had previously received a recording of the first hearing and that, as he had not, it proposed to wait a further two weeks to allow the applicant time to reflect on what had been said at that hearing. It would also ensure he was provided with a recording of the current hearing immediately after its close. The time allowed would also give him further time, if he wished it, to respond to information discussed at the hearing, pursuant to s.424AA of the Act. The Tribunal has received no further submissions from the applicant since the hearing.
The Tribunal made its decision on 28 October 2008, affirming the delegate’s decision.
In its statement of reasons, it fully recited the applicant’s refugee claims and the course of the proceeding, including the email correspondence. In its “Findings and Reasons”, the Tribunal first addressed the applicant’s claimed involvement in a 2006 gay rights conference. It explained why it concluded that “there are inconsistencies in evidence put before the Tribunal regarding the date of the alleged Conference in 2006, and the Tribunal has other evidence before it which suggests that there was no such conference”. After referring to this material, the Tribunal discussed the purported corroboration from BB. It said:
122.As discussed with the applicant at the second hearing, the Tribunal received an email message said to be from Mr B, stating that the alleged conference was supposed to commence on 12 August 2006. This not only contradicts the applicant’s claims about the commencement date but is inconsistent with media reports of an alleged conference being banned. The Tribunal discussed with the applicant its reservations about the authorship of this message, and has noted the applicant’s explanation that the differences in dates stem from the fact that conferences were proposed in two locations, but does not accept that explanation, which does not account for the differences between those dates and the timing mentioned in media reports. It also considers Mr B’s reluctance to speak directly to the Tribunal to seriously undermine the credibility of the email said to be from him.
123.Given this circumstances discussed above, the Tribunal finds that there was no proposal for an International conference for homosexual and lesbian people to be held in Ghana in 2006, whether organised by GALAG, or by any other group. It finds that the applicant was not involved in the organisation of any such conference. It follows from this finding, that the Tribunal does not regard emails from Mr B and YB, which assert that there was such a conference, as credible.
The Tribunal also rejected the applicant’s claims to have been involved in a 2007 conference. It said:
127.Given the implausibilities in the applicant’s evidence on this point, the absence of any media references to a conference in 2007, and its conclusions regarding the alleged 2006 conference, the Tribunal finds that there was no planning for such a conference, whether by the applicant or anyone else.
The Tribunal then identified “a number of factors which have led the Tribunal to conclude that there was no” attack on the applicant in which a friend was killed. These included some inconsistencies in his evidence. It also found, by reference to photographs, that the applicant, and not his cousin SB, had attempted to come to Australia in 2006, before the alleged attack took place. It did not accept that the applicant was at risk from anyone nor “obliged to flee Ghana in haste”. The Tribunal said that it did not consider that the emails from witnesses “even taken together, to be of sufficient weight to overcome its conclusions in this regard”.
The Tribunal said that it “must still consider the underlying claim that the applicant is a homosexual, and therefore at risk of persecution in Ghana”. However, it found that he was not associated with GALAG, the gay‑rights organisation in Ghana. It noted that he made no claim to have entered into any homosexual relationship in Sydney. It rejected the claim that he had been observed engaging in homosexual activity on a day when he was attacked, and noted contradictions in his evidence as to the date when his homosexual relationship with GA commenced. It concluded that it did not accept that the applicant had a homosexual relationship with GA, and found:
145.In all the circumstances, the Tribunal does not accept that the applicant was a homosexual in Ghana or was perceived to be homosexual. While accepting that he has associated himself with organisations in the homosexual community in Sydney since arriving in Australia, the Tribunal considers that he has done so in order to give credibility to his claim of being homosexual. It is not satisfied that he engaged in this conduct otherwise than for the purpose of strengthening his claims to be a refugee. In these circumstances, as required by s.91R(3) of the Act, the Tribunal disregards his conduct in associating himself with these organisations.
146.Having found that the alleged incidents claimed by the applicant to have occurred in Ghana did not happen and, consequent upon the previous paragraph, having no information to which it can have regard in relation to any activity in Australia, the Tribunal finds that there is no reason for the applicant to be regarded adversely by the authorities of Ghana or anyone else in the community of Ghana. It therefore follows that the Tribunal finds his claimed fear of persecution is not well founded.

The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter for further consideration. I can only make these orders if the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant is a refugee, nor whether he should be given permission to stay in Australia.
The applicant has not been represented in the proceedings before me. Nor has he filed any amended application, any evidence additional to the Court Book, or written submissions to explain the grounds of his application, although he was given very ample opportunities to do so. This included a lengthy adjournment of the hearing from 9 April 2009 until 3 August 2009, to allow him to address the Minister’s submissions which raised issues under s.424 of the Migration Act.
The grounds of the application therefore continue to be those in the original application:
1.The Tribunal failed to take into consideration Cultural and Community Discrimination against the applicant, and thus disregarded section (s.91R(1)(c)) of the Convention.
2.In making the decision, the Tribunal failed to properly consider all the evidence provided by the applicant and thus failed to make and informed decision.
3.The Tribunal fails to make a fair decision after stating that my protection claims are untrue and conflicting. The Tribunal appeared to have made determination of the legitimacy of the applicants claims prior to making the decision. Under Ghana Law male homosexuality is officially illegal Laws covering homosexual activity: Under Ghanaian law, male homosexual activity is officially illegal. Gay men can also be punished under provisions concerning assault and rape, only if “in public or with minor”.
(emphasis in original)
I am unable to give any substance to the first ground. I can find no evidence that the Tribunal disregarded the provisions of s.91R(1)(c) of the Migration Act. This requires that persecution coming within the Convention definition as applied by the Act “involves systematic and discriminatory conduct”. The reasoning of the Tribunal did not overlook the fact that the applicant was claiming to fear such conduct if he returned to Ghana, but turned upon its failure to be satisfied that the applicant was a homosexual.
Similarly, the Tribunal did not fail to consider any of the evidence provided by the applicant. It recounted all of the evidence in its statement of reasons, and considered whether that evidence should be accepted. This included evidence of the Ghana Law concerning homosexual activity, which had been submitted to the Tribunal.
In essence, therefore, these grounds complain that the Tribunal did not accept the applicant’s evidence and submissions. However, in my opinion, the Tribunal’s decision was open to it on the evidence before it, and was based upon reasoning which cannot be characterised as so irrational or unreasonable as to evidence a failure to exercise its jurisdiction (cf. Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [145]‑[147], Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, [2003] HCA 30 at [36]‑[37], and Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]).
The only specific complaint raised by the applicant in his oral submissions, concerned the Tribunal’s rejection of the corroborative evidence in the emails from his witnesses, and from BB in particular. The applicant complained that he had co‑operated in the Tribunal’s inquiries which attempted to elicit more evidence from these witnesses, and that the Tribunal should have accepted their evidence.
However, deferring consideration of issues arising under s.424(2) which I shall discuss below, I am not satisfied that the Tribunal’s inquiries involved any failure of procedural fairness in so far as these are encompassed within the provisions of the Migration Act, including s.425. The Tribunal’s ultimate concerns in its assessment of the correspondence appear to have been put to the applicant in the course of the two hearings, and, at least, I am not satisfied on the evidence now before me that its procedures did not accord with the provisions of s.424AA. I also consider that the Tribunal’s refusal to give the emails weight in the face of its concerns about the credibility of the applicant’s own evidence was consistent with authority (cf. WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [70] and Minister for Immigration & Citizenship v SZMOK [2009] FCAFC 83 at [59]‑[68], [74]).
For all the above reasons, I am not persuaded that the applicant’s grounds of review and oral submissions have established any jurisdictional error.
I therefore turn to issues arising under s.424(2), which were raised by counsel for the Minister and were not addressed by the applicant. Section 424(2), in the terms relevant to the present matter, gave the Tribunal a power to “invite a person to give additional information”. It was held by a Full Court of the Federal Court in SZKTI v Minister for Immigration & Citizenship (2008) 168 FCR 256 that every exercise of this power must comply with procedural formalities, pursuant to the provisions of s.424(3) and s.424B and relevant regulations, and that a material failure of procedure could give rise to jurisdictional error.
The hearing of the present matter was adjourned, in part, to await the reserved judgment of the High Court in the Minister’s appeal from SZKTI. However, there have been further Full Court judgments, which have taken a confining approach to the ambit of s.424(2). I have decided that I should apply these judgments, and not delay my judgment any longer.
The present Tribunal’s ‘acknowledgement letter’ contained advice to the applicant that the Tribunal expected him to “immediately send us any documents, information or other evidence you want the Tribunal to consider”. However, for reasons which I gave in SZNJT v Minister for Immigration & Anor [2009] FMCA 730 I do not consider that this amounted to an invitation within s.424(2). I also consider that, as in SZNJT, any defect in that letter did not give rise to jurisdictional consequences calling for the grant of relief, taking into account the subsequent proceedings of the Tribunal.
The Tribunal initiated several inquiries through its research section and the Department of Immigration’s ‘RRT Liaison unit’, directed at discovering the immigration history of AB and SB in Africa, Europe and New Zealand. They are included in the Court Book, but it is unnecessary for me to detail them. None of the inquiries was directed to an identified natural person, whether directly or indirectly, and therefore no issue arises as to compliance with requirements attaching to s.424(2) (see SZLPO v Minister for Immigration & Citizenship [2009] FCAFC 51 at [103]‑[109]).
However, the Tribunal’s email correspondence with the applicant’s witnesses was directed at identified natural persons, and these inquiries are more difficult to characterise in relation to s.424(2). In particular, the email correspondence with BB which I have described above was extensive, and was examined in detail in the course of the submissions of the Minister’s counsel.
The Minister’s counsel conceded that, if any of the Tribunal’s communications to BB could be characterised as an invitation to give additional information at an interview, it did not comply with the requirement in relation to oral responses that a time and place for giving evidence is to be specified in the invitation (see s.424B(3)). He conceded that, if any of the communications invited the giving of additional information in writing, there was no specification of the prescribed period for responding (see s.424B(2)). However, he disputed that either of these characterisations was appropriate, and, in the alternative, he submitted that any irregularity was of no significance in the circumstances, particularly where the Tribunal received and took into consideration all the responses which the witnesses provided to the Tribunal, where the responses were discussed with the applicant at the two hearings, and where he was given an opportunity to tender additional evidence after the last hearing.
The characterisation under s.424(2) of informal contacts made by a Tribunal with a witness proffered by an applicant is not clear on current authorities. However, this Court is expected to follow the most recent judgment of the Federal Court exercising its appellate jurisdiction (see SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487, [2008] FCAFC 91 at [42]).
In SZMBS v Minister for Immigration & Citizenship [2009] FCAFC 65, a Full Court considered a situation where the Tribunal telephoned a witness who, through the applicant, had provided a statement corroborating a claim made by the applicant that she had attended his church. The witness’s statement said: “please do not hesitate to contact [the witness] should you have any further enquiry”. In the course of the hearing, the Tribunal asked the applicant: “do you mind if I call him?”, and she agreed to this (see [10]‑[13]). The Tribunal then telephoned the witness in the course of the hearing and elicited further evidence about the applicant’s church activities.
The contents of the witness’s statement and subsequent telephone evidence in SZMBS appears remarkably similar to that in SZKTI, and the circumstances in which the Tribunal telephoned the witness to elicit further information might appear very similar in the two cases. However, in SZKTI, the witness statement was presented by the applicant after the hearing, and the Tribunal did not discuss with the applicant its intention to telephone the witness, although it subsequently put to the applicant for written comment the contents of the information elicited from the witness.
In the opinion of the Full Court in SZMBS at [44], these points of factual distinction meant that “assuming SZKTI’s Case is correctly decided, but without endorsing its correctness, SZKTI’s Case does not govern the outcome of the present case”. In their Honours’ opinion, the Tribunal’s telephone inquiries to the witness in SZMBS did not amount to an ‘invitation’ to ‘give additional information’ within s.424(2), because:
35Whether s 424(2) was enlivened in the present case depends upon whether the making of the telephone call by the Tribunal to [the witness] can fairly be characterised as the Tribunal inviting [the witness] to give additional information within s 424(2). The considerations outlined above are of relevance in construing s 424(2) and, in particular, in determining what it means to invite a person to give information. That is to say, the question is whether the Tribunal invited [the witness] to give information within s 424(2), by making the telephone call during the course of the hearing on 6 February 2008.
36It is significant that the letter of 3 February 2008 from the Local Church is not addressed to the Tribunal and was not provided to the Tribunal by [the witness]. Rather, it was given to the Tribunal by the appellant. Thus, as at the time when the Tribunal telephoned [the witness], [the witness] had not given any information to the Tribunal concerning the appellant.
37In making the telephone call to [the witness], the Tribunal was doing no more than taking up the invitation extended by the letter of 3 February 2009 to contact [the witness]. The Tribunal was simply responding to the offer made by the letter. The appellant acquiesced in that response. The transcript quoted above indicates, if anything, that the appellant encouraged the Tribunal to make the telephone call to [the witness] as suggested by the Tribunal. When the Tribunal accepted the invitation in the letter, addressed to the world at large, to contact [the witness] if there was any further enquiry, the Tribunal may have been attempting to get information. However, the Tribunal was not inviting [the witness] to give additional information within the meaning of s 424(2). At most the Tribunal was making an enquiry as to whether [the witness] had relevant information to give to the Tribunal. It did not invite him to give information, much less additional information.
38Section 424(2) was not enlivened. Accordingly, there was no failure on the part of the Tribunal to comply with s 424(3) of the Act.
(emphasis in original)
The line to be drawn between SZKTI and SZMBS is not clear, in its application to the present Tribunal’s email correspondence with BB. However, I have concluded that the analysis taken in SZMBS should be applied to the present situation. Here too, the witness’s original email evidence had not been provided by the witness to the Tribunal, but to the applicant, who presented it to the Tribunal before the hearing. The Tribunal’s direct contacts with the witness arose out of its discussions with the applicant at the hearing, and occurred with his consent and encouragement. The Tribunal’s central concern in its emails was to obtain the witness’s agreement to give oral evidence by telephone on a date yet to be arranged, and that agreement was never forthcoming. On one view of the exchange, it was only a preliminary negotiation of a possible future ‘inviting’ of the giving of additional information at a telephone hearing. To the extent that in the course of the emails the Tribunal might appear to have allowed BB to give information in emails, for example in the email of 11 July 2008 described in [7](ix) above, this was clearly not the objective of the Tribunal. In all the circumstances, I consider that the Tribunal’s communications to BB should be characterised, as in SZMBS as “at most the Tribunal was making an enquiry as to whether [BB] had relevant information to give to the Tribunal”.
No different analysis is open in relation to the Tribunal’s correspondence with other witnesses presented by the applicant, and for the above reasons I do not consider that s.424(2) was ever ‘enlivened’ in the course of any of the Tribunal’s inquiries in the present matter. I therefore do not need to consider whether, if there were failures of procedures which are mandatory under that provision, the Tribunal’s substantive decision should be quashed for jurisdictional error.
For all the above reasons, I am not satisfied that the Tribunal’s decision is affected by any jurisdictional error. I must therefore dismiss the application.

I certify that the preceding thirty‑five (35) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 21 August 2009