SZNGF v Minister for Immigration

[2009] FMCA 347

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNGF v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 347

MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal sought additional information pursuant to s.424 – jurisdictional error – exercise of discretion – no practical injustice to the applicant – discretion exercised to refuse relief – no bias – no failure to consider applicant’s claims – findings open to Tribunal on material before it – no failure to comply with s.424A – no failure to comply with s.425 – no failure to understand or apply s.91R – no obligation on Tribunal to make further enquiries – application dismissed.

Migration Act 1958 (Cth), ss.424A, 425, 91R, 65, 36(2), 424B, 441G, 426A

SZHPD v Minister for Immigration and Citizenship [2007] FCA 157
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259
Xu v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 425; [1999] FCA 1741
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83
SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119
Minister for Immigration and Citizenship v SZLFX [2008] FCAFC 125
SZLYR v Minister for Immigration & Anor [2008] FMCA 1322
SZKGF v Minister for Immigration & Citizenship [2008] FCAFC 84
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158
Re Refugee Review Tribunal; Ex parte Aala 204 CLR 82
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26
Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs; [2005] HCA 24; (2005) 79 ALJR 1009
VQAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1541
R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372
SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122
SZJSP v Minister for Immigration and Citizenship [2007] FCA 1925
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Applicant: SZNGF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 380 of 2009

Judgment of: Nicholls FM

Hearing date: 16 April 2009

Date of Last Submission: 16 April 2009

Delivered at: Sydney

Delivered on: 24 April 2009

REPRESENTATION

Appearing for the Applicant: In person

Solicitors for the Applicant: In person

Appearing for the Respondents: Ms N Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application made on 18 February 2009 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 380 of 2009

SZNGF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 18 February 2009 under the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 January 2009, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

1. The first respondent has put a bundle of relevant documents before the Court (the Court Book – “CB”) from which the following may be discerned.

2. The applicant is a national of the People’s Republic of China (“China”) who arrived in Australia on 6 June 2007 (CB 15). On 4 July 2007 he applied for a protection visa (CB 1 to CB 34 with annexures). This application was refused on 24 August 2007 (CB 37 to CB 48). The applicant applied for review on 16 October 2007 (CB 49 to CB 52). He appeared at a hearing before the Tribunal on two occasions (26 November 2007 – CB 60; and 25 February 2008 – CB 88), as well as being invited to comment on information pursuant to s.424A (CB 65 and CB 90).

3. It appears that a previously constituted Tribunal made a decision which was the subject of an application for judicial review to this Court and that the Court made orders remitting the application for review to the Tribunal for reconsideration (CB 94).

4. The applicant was invited to attend a hearing before the Tribunal scheduled for 6 January 2009 (CB 97) and he ultimately did appear before the now differently constituted Tribunal on that date to give evidence (CB 110).

Applicant’s claims to protection

1. The applicant’s claims before the Tribunal were that he had been a Falun Gong practitioner in China since 1995, that he had come to the attention of police in January 2006 (after Falun Gong had been banned in China in July 1999), and that he was taken to a police station where he was questioned, severely beaten and was only released after paying a bribe. An aunt arranged for a contact in the Public Security Bureau (PSB) for him to obtain travel documentation and he subsequently arrived in Australia on 6 June 2007. He claimed that since his arrival, he had taken part in Falun Gong activities and functions in Australia. 

The Tribunal

1. The Tribunal did not accept that the applicant was a “genuine Falun Gong practitioner” in China, or that he was arrested or detained by police, or that he was of interest to the authorities. The reason for its decision was that it did not accept that the applicant was “a witness of truth”. The Tribunal found “much of the applicant’s evidence” to be “implausible and inconsistent in relation to significant details” (CB 123.5). Given that the Tribunal found that the applicant had been untruthful in his evidence about what had happened to him in China and his reasons for leaving, it did not accept that he practised Falun Gong in Australia, or that he participated in Falun Gong activities (including giving an interview with a journalist), other than to strengthen his claims to be a refugee. Accordingly, the Tribunal disregarded this conduct pursuant to s.91R(3) for the purposes of the application (CB 126). The Tribunal therefore affirmed the decision under review.

Application to the Court

1. The application to this Court puts forward the following grounds:

   “In The Refugee Review Tribunal made jurisdictional errors when considered my application for a protection visa. The Tribunal had bials against me.

   The REfugee Review Tribunal failed to consider my claims.

   The Refugee Review Tribunal didn’t notify me the reason or part of the reasons for affirming the decision.

   The Tribunal failed to consider my application accordingly to S91R of the Migration Act and S424A of the Migration Act 1958.

   Refugee Review Tribunal decision shows unawareness of conditions in China.

   Something in Refugee Review Tribunal reject letter is different from what we have provided.”

[Errors in original]

1. Despite the opportunity to file an amended application providing details or particulars, the applicant has not done so, nor have any written submissions been filed by the applicant.

Hearing before the Court

1. At the hearing before the Court the applicant appeared in person. He was assisted by an interpreter in the Mandarin language. Ms N Johnson appeared for the first respondent.

2. The applicant stated that he was unable to add substance to the stated grounds. He said that the Tribunal’s finding that he was not a Falun Gong practitioner in China was: “their view only”. I understood this to be a challenge to the Tribunal’s finding and that the applicant took issue with it.

3. He also made references to “Karma” and to “Master Li” and to “black devils”. I took this to be some attempt to assert before the Court that he was a genuine Falun Gong practitioner and that he would fall foul of the authorities (the “black devils”) if he were to return to China.

Consideration

Ground one

1. The first ground in the application generally asserts jurisdictional error, but provides no particulars whatsoever. At best, this appears to be a complaint that the Tribunal was biased against the applicant.

2. It is the case that such complaints must be: “distinctly made and clearly proven” (SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22] and see also Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 at [69]). No particulars have been provided in support of this claim.

3. In any event, on what is before the Court, and with reference to the relevant authorities (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [43]- [44], Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102), I cannot see that any such complaint can be asserted.

4. On the material before the Court, there is nothing to show that there is any basis for the applicant’s claim in this regard, let alone that any such complaint can be made out. This ground does not succeed.

Ground two

1. Ground two asserts that the Tribunal failed to consider the applicant’s claims. Again, no particulars are provided. On what is before the Court, I cannot see that this complaint can succeed.

2. The applicant’s claims were initially set out in a statement attached to his protection visa application (CB 27 to CB 34 with attachments). These were supported, and expanded, by what the applicant told the delegate at an interview (CB 47), at hearings before the Tribunal (including the previously constituted Tribunal), and the applicant’s responses to invitations to comment on information (CB 67 to CB 71 with attachments, CB 76 to CB 78, and CB 92 to CB 93).

3. The Tribunal’s recounting of the applicant’s claims and evidence set out in its decision record (CB 116 to CB in 118) is consistent with what the applicant put before the Tribunal. Nor can I see that the Tribunal has omitted to take into account any claim made by the applicant, or any aspect of his claims.

4. Further, the applicant has not put any evidence before the Court (despite being given the opportunity) to challenge the Tribunal’s account of what it said had occurred at the hearing. When the Tribunal’s account of what occurred at the hearing is considered, and in light of the other material before the Court, I cannot see that the Tribunal failed to identify, and subsequently analyse, the claims put forward by the applicant.

5. Plainly, the applicant was unsuccessful before the Tribunal because of the view that the Tribunal took of the applicant’s credibility. This finding, and the findings supporting it, were all open to the Tribunal on the material before it, and for which it gave comprehensive reasons. Findings of this type are, of course, for the Tribunal to make. (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67]).

6. The applicant’s complaint as stated, without anything further, does not rise above a request for the Court now to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) CLR 259). This ground does not succeed.

Ground three

1. Ground three asserts that the Tribunal failed to notify the applicant of the reason, or part of the reason, for affirming the decision.

2. Any plain reading of the Tribunal’s decision record reveals it to be comprehensive and, relevantly, lucid and cogent. To the extent, therefore, that this complaint asserts some failure of the Tribunal pursuant to s.430 of the Act (given that any such failure would not amount to jurisdictional error in any event – Xu v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 425; [1999] FCA 1741 at [17], ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [70], per McHugh J) to set out its findings, then any such complaint would fail.

3. Noting the language used in ground three, it may be that the applicant (or whoever drafted this on his behalf) is seeking to assert some failure pursuant to s.424A of the Act (“the reason, or part of the reason, for affirming the decision …”), a complaint which is also made, in part, in ground four. The applicant was unable to assist the Court with any particulars as to what information the Tribunal is said to have failed to put to him as it was obliged to do pursuant to s.424A(1). I note that the previously constituted Tribunal sent two letters to the applicant pursuant to s.424A, seeking his comments on information (see CB 65 and CB 90).

4. But, in any event, the information relied upon by the Tribunal (the information that: “would be the reason or part of the reason” – SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”)) reveals that the Tribunal relied on information provided by the applicant himself for the purposes of the review. As such, this falls within the exception contained in section 424A(3)(b) from the obligation s.424A(1).

5. Further, as was said in SZBYR (see [14] to [18]) the adverse view taken by the Tribunal of the applicant’s evidence, inconsistencies in his evidence and claims, its doubts about the evidence, and even the absence of evidence, is not “information” for the purposes of s.424A (see SZBYR at [18]).

6. It is, as the Minister submits, even in relation to the material provided by the applicant’s aunt as the applicant’s formal representative for the purposes of the review, that nothing in this material contained “in their terms” a “rejection, denial or undermining” of the applicant’s claims for protection. Therefore, even this was not “information” for the purpose of s.424A(1) (see SZBYR at [18]).

7. It may also be, notwithstanding the language used, that the applicant sought to complain that he was not put on notice as to the Tribunal’s adverse view of his evidence prior to the making of its decision. That is, that it failed to provide him with some draft reasons for his comment. However, the Tribunal is not obliged pursuant to s.424A to provide the applicant with any such notice, nor is it otherwise obliged to do so.

8. The Tribunal is required pursuant to s.425 (bearing in mind what was said by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”)) to ensure that the issues which are determinative of the review, not arising from the delegate’s decision, must be put to the applicant at the hearing, such as to accord him procedural fairness.

9. The Tribunal’s unchallenged account of what occurred at the hearing (the hearing before the Tribunal member making the decision that is currently before the Court) reveals that the applicant was given the opportunity to address the factual basis of his claim to fear harm in China as it was said to arise from his Falun Gong adherence and activities, both in China and Australia. The Tribunal’s questioning was certainly directed to the substratum of facts underpinning the applicant’s claims. A plain reading of this account reveals that the Tribunal “sufficiently indicated” (SZBEL at [47]) the matters that were at issue (see, particularly, CB 119.7, CB 119.8, CB 119.10, CB 120.3, CB 120.8, CB 120.9, CB 121.6 and CB 121.7: “The Tribunal told the applicant that it did not find this evidence plausible”). I cannot see that any such complaint can succeed.

Ground four

1. Ground four (other than the general reference to s.424A dealt with above) asserts that the Tribunal failed to consider the application according to s.91R of the Act.

2. Again, the applicant was unable to provide any particulars to support this assertion. There is nothing before the Court to suggest that the Tribunal misunderstood or misapplied the provisions in s.91R(1) or 91R(2).

3. If the applicant is seeking to complain about the Tribunal’s treatment of his conduct in Australia pursuant to s.91R(3) then I cannot see that any complaint of this nature can succeed.

4. The Tribunal rejected the applicant’s claims as they were said to arise out of his conduct, activities, and the relevant circumstances and the applicant’s situation in China. The reason was that the Tribunal did not accept the applicant’s credibility:

   “Because the Tribunal does not accept that the applicant is a witness of truth it does not accept as true that he is a genuine Falun Gong practitioner” (CB 125.3)

5. The Tribunal’s comprehensive rejection of the applicant’s credibility was arrived at without reference or reliance on the applicant’s conduct in Australia. The Tribunal subsequently considered his claimed conduct in Australia, that is, that he practised Falun Gong and that he had participated in an interview with a journalist (CB 125.4) and found that this conduct had occurred. But it also found that the applicant’s motivation for this conduct was done for the purpose of strengthening his refugee claims. Given this finding, which was open to it on the material before it, it disregarded the conduct as required by s.91R(3). The Tribunal’s approach and application of this section was consistent with the relevant authority (see, for example, SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105). This complaint also does not succeed.

Ground five

1. In ground five of the application, the applicant complains that the Tribunal decision “shows unawareness of conditions in China”.  It is not exactly clear what is meant by this complaint, nor was the applicant able to assist at the hearing before the Court.

2. Before the Tribunal the applicant was given the opportunity to make out his case. For the cogent reasons which it gave, and which were open to it, the Tribunal rejected the applicant’s credibility in relation to these claims (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67], per McHugh J). Given its finding as to the applicant’s credibility, the Tribunal could not reach the requisite level of satisfaction, such that the protection visa must be granted (see ss.65 and 36(2)). Nor was there any duty on the Tribunal, once having made this finding, to make any further inquiries or investigation as to the conditions in China (see Minister for Immigration and Multicultural and Indigenous Affairs v  SGLB (2004) 207 ALR 12). This ground does not succeed.

Ground six

1. Ground six as stated in the application, with respect to the applicant, is meaningless. The applicant was unable to assist the Court at the hearing as to what was meant by the reference to: “something in Refugee Review Tribunal reject letter is different from what we have provided”.

2. If this is meant to be some claim of misunderstanding by the Tribunal of the applicant’s claims, then this is not apparent on the material before the Court. In the absence of anything further, this ground also does not succeed.

The applicant’s submissions before the Court

1. If, before the Court, the applicant was seeking to reagitate his claims to be a refugee and the truthfulness of these claims, then this Court is unable to assist him in this regard as merits review is not available to him (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (citing Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J), and at 291 per Kirby J, Abebe v The Commonwealth (1999) 197 CLR 510 at [195] per Gummow and Hayne JJ)).

Additional consideration – section 424

1. Consistent with his stated obligation as a model litigant, the Minister also raised before the Court for further consideration an issue as to whether the Tribunal failed to properly comply s.424 of the Act.

2. The relevant circumstances appear to be as follows:

   1)On 28 October 2008 the Tribunal received from the applicant a completed: “Appointment of Representative – Appointment of Authorised Recipient” form. On this form, the applicant indicated that his “representative/authorised recipient” was his “aunt”, and in providing details about his representative/authorised recipient, made reference to the title of “Ms”. A full name was provided for the person whom the applicant appointed as his representative and authorised recipient (CB 96).

   2)By letter dated 26 November 2008 the Tribunal invited the applicant to attend a hearing before it on 6 January 2009. The letter was properly addressed to the authorised recipient as described by the applicant in his appointment notification. That is, the title used by the Tribunal was “Ms” and the name used by the Tribunal corresponded to the name given by the applicant as the representative/authorised recipient’s name. The letter was sent to the address for service (CB 97).

   3)On 11 December 2008 the Tribunal received a letter from the authorised recipient/representative making reference to the Tribunal’s letter of 26 November 2008 as “being addressed to me”, and stating that the applicant could not attend the hearing scheduled for 6 January 2009 because he had been taken into police custody. In representing the “nephew”, the representative requested a postponement of the hearing (CB 99).

   4)On 12 December 2008 an employee of the Tribunal telephoned the applicant’s uncle (who it appears at that time was incorrectly described as the authorised recipient), and asked for evidence from police that the applicant had been taken into custody (CB 104).

   5)It appears from a case note (reproduced at CB 105) that the Tribunal employee subsequently noted that the uncle was not the authorised recipient, and further records:

   “The Member has requested that the AR [authorised recipient] be advised that the hearing of 6/1/09 will proceed unless evidence is provided that applicant is still in custody and will be on the date of the hearing. I attempted to ring the AR to tell her this but the answerer said ‘wrong number’ and hung up. I tried calling again, but there was no answer so I left a message with the answering service.”

   6)A Tribunal case note (at CB 106) also reveals that the applicant’s uncle telephoned the Tribunal noting that he was the: “husband of the AR”, but nonetheless purporting to represent the applicant and telling the Tribunal that he would forward something from “the police …” (CB 106).

   7)On 24 December 2008 the applicant’s uncle telephoned the Tribunal and advised that his nephew had been released on bail, and that he would therefore be able to attend the hearing as originally scheduled for 6 January 2009 (CB 107).

   8)I note that the Minister’s submissions refer to the applicant’s uncle as having sent the letter of 11 December 2008 requesting a postponement of the hearing (CB 99). On closer inspection, and with reference to what is set out at CB 96, it would appear that the letter was sent by the applicant’s aunt, and not his uncle.

3. Nonetheless, the issue raised by the Minister now is whether the telephone call made to the applicant’s uncle on 12 December 2008 (CB 104) could be construed as an invitation to provide additional information for the purposes of s.424 of the Act and, if this is the case, whether the Tribunal complied with its statutory obligations pursuant to ss.424(3) and 424B.

4. The Minister referred the Court to the Full Court judgment in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 per Tamberlin, Goldberg and Rares JJ (“SZKTI”) at [43] to [45] where a telephone call to a person in that case amounted to an invitation to give additional information to the Tribunal pursuant to s.424. The Court held that the Act did not authorise the Tribunal to obtain additional information pursuant to its general power under s.424(1) without compliance with the procedure set out in s.424(2) and (3). That is, that the invitation be made relevantly in writing. In those circumstances, the Court found that jurisdictional error had been established because the Tribunal failed to follow the procedure set out in the Act for the provision of information by a person invited to give additional information.

5. SZKTI was subsequently followed in SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 (see in particular at [38] to [72] per Buchanan J, with whom Stone and Tracey JJ agreed – see [6] and Minister for Immigration and Citizenship v SZLFX [2008] FCAFC 125 at [1] per Branson, Bennett and Flick JJ).

6. The Minister also referred the Court to SZLYR v Minister for Immigration & Anor [2008] FMCA 1322 (“SZLYR”) at [40] to [43] per Barnes FM where it was submitted that her Honour held that s.424 was not limited to information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review, and that there was nothing in the language of s.424 to indicate that the section was limited to the information of substantive relevance to the Refugee Convention grounds relied on by the applicant.

7. In that case, Barnes FM found that s.424 extended to any information relevant to the conduct of the review, including information relevant to any decision about postponement of a hearing.

8. The Minister submits that on these authorities, a breach of ss.424(3) and 424B has occurred, resulting from the telephone call made to the applicant’s uncle on 12 December 2008.

9. Notwithstanding this, the Minister contends that in the exercise of its discretion, the Court should refuse relief to the applicant as there was a lack of any impractical injustice, and the breach could have no effect on the Tribunal’s decision (this was made with reference to SZKGF v Minister for Immigration & Citizenship [2008] FCAFC 84, VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [56] to [57], SZLYR at [62] to [64], Re Refugee Review Tribunal; Ex parte Aala 204 CLR 82 at [56] to [57].

10. The Minister’s position, as confirmed at the hearing before the Court, is that the telephone call made on 12 December 2008 (CB 104) by a Tribunal employee at the direction of the relevant Tribunal member to the applicant’s uncle involved an invitation for the uncle to provide additional information (see SZKTI at [43] to [45] and see also SZLYR at [40] to [43]) the invitation is caught by s.424 of the Act. As the Tribunal did not comply with its statutory obligations under s.424(3) and 424B, such failure constitutes jurisdictional error.

11. This Court is obviously bound by what was said by the Full Court in SZKTI. In that case, the applicant provided a letter to the Tribunal in support of his claims to have engaged in relevant religious practice in Australia. He provided a letter of support from elders of his church. The applicant’s letter invited the Tribunal to contact either of the two elders if the Tribunal had any questions, and the letter enclosed the mobile telephone number for one of the elders, accompanied with the statement: “Please do not hesitate to contact …” (see SZKTI at [24]).

12. The Court found that the Tribunal did not invite the relevant author of the letter to provide it with information under s.424(2). Instead, it: “simply telephoned Mr Cheah on his mobile phone and questioned him about the appellant, thus obtaining information additional to that in the letter …” (at [3]).

13. The Court found that the Tribunal: “relied on that information in deciding to affirm the decision of the Minister’s delegate to refuse the appellant a protection visa” (also at [3]).

14. The jurisdictional error found in that case was that the Tribunal had failed to follow the procedure specified in the Act for provision of information by a person invited to give: “additional information”. Two other full Courts have followed SZKTI in this regard, and have rejected arguments that the full Court in SZKTI was wrong (see SZKCQ v Minister for Immigration and Citizenship [2008] FCAFC 119 per Buchanan J, with whom Stone and Tracey JJ agreed. See also Minister for Immigration and Citizenship v SZLFX [2008] FCAFC 125 at [3] per Branson, Bennett and Flick JJ).

15. In those cases, the “information” requested was information in relation to the substance of the applicant’s claims to fear Convention related persecution. In SZLYR, Barnes FM (as in the case currently before the Court) was presented with a situation where the request for additional information was not directed to the substance of the applicant’s claims, but related to a “procedural” matter, namely, information relating to the applicant’s inability to attend at the scheduled time for the hearing (SZLYR at [40]).

16. Notwithstanding this, in the absence of any authority cited on the issue, and taking into account the approach taken in SZKTI and SZKCQ, her Honour proceeded on the basis that s.424 applied to the circumstances in the case before her (SZLYR at [41]). Her Honour concluded (at [42]):

    “on the basis that s.424 extends to any information relevant to the conduct of the review (including information relevant to any decision about postponing a hearing or exercising a discretion under s.426A) it was not complied with in this case because the Tribunal failed to comply with s.424(3) and s.424B.”

17. It is not necessary for the purposes of the case currently before the Court to consider her Honour’s analysis as the Minister has conceded that the Tribunal’s decision is infected with jurisdictional error in circumstances similar to those before her Honour.

Discretion

1. The issue for this Court, however, is consideration of the Minister’s submission that the relief sought should be refused because, notwithstanding the breach of s.424, the applicant lost no opportunity to present his case as a result of the Tribunal’s conduct, and that there was a lack of any “practical injustice”, and that the breach could have had no effect on the Tribunal’s decision.

2. It is well accepted that relief under s.75(v) of the Australian Constitution is like prerogative relief generally, and is discretionary (Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 at [33] and Minister for Immigration and Multicultural and Indigenous Affairs and Anor; Ex parte Applicants S134/2002 [2003] HCA 1).

3. Further, in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 (“Aala”) the High Court confirmed that the constitutional writ of prohibition is discretionary, and held that prohibition and mandamus should issue in that case. At [52] and [54] Gaudron and Gummow JJ said:

   “[52] The recognition of an element of discretion attending the exercise of the jurisdiction conferred by s 75(v) with respect to prohibition involves ‘two separate questions’. The first is whether the officers of the Commonwealth in question acted in want of or in excess of jurisdiction. The second is whether prohibition should not issue, having regard to the delay, waiver, acquiescence or other conduct of the prosecutor, in the course of the administrative proceeding or in other relevant circumstances.

   “[54] No doubt the discretion  with respect to all remedies in s 75(v) is not to be exercised lightly against the grant of a final remedy, particularly where the officers of the Commonwealth in question do not constitute a federal court and there is no avenue of appeal to this Court under s 73 of the Constitution. The discretion is to be exercised against the background of the animating principle described by Gaudron J in Enfield City Corporation v Development Assessment Commission.”

4. Further, I note that in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs; [2005] HCA 24; (2005) 79 ALJR 1009 (“SAAP”) the majority found (essentially) against the Tribunal in circumstances where the Tribunal failed to comply with a mandatory provision contained in Division 4 of Part 7 of the Act. While the majority found that the Tribunal’s failure in that case had been a breach of the obligation to accord procedural fairness, and that there was therefore jurisdictional error, all allowed for the possibility that the discretion may be exercised to withhold relief, but found that there was no such reason evident in the case before them to do so.

5. McHugh J said at [80]:

   “The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome.” [Citations omitted]

6. Hayne J stated at [211]:

   “For the reasons given earlier, the decision reached by the Tribunal is invalid. There is no basis, in this case, on which the undoubted discretion to refuse the relief sought could be exercised against its grant. There has been no suggestion of delay, waiver, acquiescence or other conduct of the appellants said to stand in their way...”

7. In VQAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1541 Heerey J at [23] stated:

   “… [T]he court should proceed to reach a final conclusion one way or the other on the substantive merits and, if satisfied that a case of  jurisdictional error  is made out, then consider whether relief should be refused because of delay or other discretionary factors …”

8. I note also R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 and Re McBain; Ex parte Australian Catholic  Bishops Conference (2002) 209 CLR 372.

9. In effect, the Minister asks this Court to follow the approach and reasoning on this issue taken by Barnes FM in SZLYR. I note relevant authorities on this issue and the principles of assistance relevant to the circumstances of this case which can be extracted. Relief should be refused where the ultimate result was inevitable, even if procedural fairness was not afforded (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) at [88] to [91]).

10. However, where the Court cannot find that compliance with procedural fairness obligations would not have made a difference, relief should be provided (see Aala).

11. I also take into account and note what was said in SZKGF v Minister for Immigration & Citizenship [2008] FCAFC 84 (“SZKGF”) and SZIZO v Minister for Immigration and Citizenship [2008] FCAFC 122 (“SZIZO”).

12. In SZKGF, the Tribunal sent two letters to the applicant, one a letter inviting the applicant to a hearing, and the other, apparently pursuant to section 424A of the Act, inviting him to comment on certain information. Both letters used the correct number and street address provided by the applicant but gave an incorrect postcode. The applicant, however, received both letters. He responded to the first letter, indicating that he wished to attend the hearing. He did in fact do so. He also immediately responded to the second letter (SZKGF at [5] and [6]).

13. In that case, their Honours (Stone, Jacobson and Edmonds JJ) noted that in the circumstances of the case before them: “there has been no practical injustice” (SZKGF at [8]) and, in context, that this was relevant to the issue of the exercise of the Court’s discretion (see also SZJSP v Minister for Immigration and Citizenship [2007] FCA 1925 (“SZJSP”), in particular, at [28] to [30] per Madgwick J).

14. The Court noted in SZKGF (at [8]) that the applicant: “lost no opportunity to advance his case: Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37] to [38].”

15. At [13] the Court said:

    “As we earlier remarked, the clear absence in this case of any practical injustice or even inconvenience to the appellant resulting from the postcode error is such that, were we to find that there had been a jurisdictional error, we would, in the exercise of our discretion decline to grant relief. As Mr Lloyd summarised it:

    This is a case where [the Court] can be satisfied that any breach could have had no effect upon the Tribunal’s decision ...: no hearing was missed; no invitation to comment left unanswered; no delay caused; no prejudice suffered.”

16. At [14] the Court referred to Aala for circumstances that may attract an exercise of discretion and at [15] referred to:

    “See also Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam at [38] where Gleeson CJ observed that there the appellant had suffered no practical injustice and no procedural unfairness. A lack of practical injustice was also the basis for and exercise of the discretion to refuse relief in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [56]- [57]. See also SZJSP v Minister for Immigration and Citizenship at [28]-[29] where Madgwick J remarked at [29]:

    To set aside the Tribunal’s decision and require reconsideration of the appellant’s claims de novo would be, ... to allow the triumph of mere technicality over substance ....”

17. The Full Court also stated that their Honours’ attention had been drawn to the appeal in SZIZO. In that case there was a differently constituted Full Court (which had reserved its decision at the time of the making of the judgement in SZKGF).

18. It was said in SZKGF at [16]:

    “Counsel informed us that this appeal ‘raises some similar questions as to whether a jurisdictional error is made out when a possible non-compliance has no material consequence and/or whether relief should be refused in such a case’ in the exercise of the Court’s discretion. Despite the similar questions in the two appeals the factual difference are such that we do not consider that the decision in either of these appeals would necessarily determine the outcome of the other.”

19. In SZIZO, the relevant factual circumstances were that one of the appellants before the Court had nominated an authorised recipient who had the same address as the appellant (see SZIZO at [7] to [8]). The Tribunal sent an invitation to a hearing to that address, but the letter of invitation was not addressed to the authorised recipient. Notwithstanding this, the appellants attended the Tribunal hearing (at [16]). While there was no suggestion of any unfairness or prejudice suffered by the applicants in that case, the Full Court found that there had been a failure to comply with mandatory procedures under the Act (s.441G). Therefore, there had been jurisdictional error.

20. The Court did consider, notwithstanding that there had been jurisdictional error, whether relief should be refused (see [92] and following). The Court did not exercise its discretion to refuse relief in that case. While reference was made to the approach of Madgwick J in SZJSP (at [93] and SZBYR [74] to [77]) the Court also referred to SAAP and Aala, in relation to circumstances in which relief should be refused.

1. At [97] Lander J, in SZIZO stated (with whom Moore and Marshall JJ agreed at [1]):

   “It should be only in exceptional circumstances that a Court should refuse to issue the constitutional writs once the Court has determined that the Tribunal had failed to comply with its imperative statutory obligations to an applicant seeking the review of a decision of the delegate refusing the applicant a protection visa. If it were otherwise, and the Court were required to inquire into the extent to which the failure by the Tribunal to comply with its statutory obligations to accord an applicant a fair hearing prejudiced the applicant, the imperative obligation imposed on the Tribunal might well be blunted.”

2. The Court in SZIZO also made reference to SZKGF (at [99]) and Lander J agreed with the Full Court in SZKGF that: “the factual differences in the two cases are such that the decision on either appeal  could not determine the result in the other appeal.”

3. In my view, there are two separate reasons for refusing the relief sought by the applicant in the current case.

4. In the factual circumstances of the current case, the Tribunal (the Tribunal’s employee at the direction of the presiding member) made a telephone call to the applicant’s uncle which, in the circumstances that subsequently unfolded, had no impact at all on the Tribunal’s review, and importantly, and relevantly, on its decision making procedures. There was no “practical injustice or even inconvenience” (SZKGF at [13]) to the applicant.

5. While an adjournment of the hearing date had been requested by the applicant’s representative (his aunt), which led to the Tribunal requesting additional information in relation to whether the hearing should be adjourned, the request for the adjournment was subsequently withdrawn (after the applicant had been released on bail). The originally scheduled hearing date proceeded, the applicant attended and gave his evidence.

6. Not only did the applicant maintain the opportunity to present his evidence notwithstanding the telephone call, the situation in this case is even stronger in arguing against the exercise of discretion than the circumstances in SZLYR. In that case (in contrast to what occurred in this case) the opportunity (that was said not to have been lost) was at a subsequently scheduled hearing. In this case, the Tribunal proceeded with the originally scheduled date for the hearing. Specifically, the breach of s.424 in this case did not result in the very same hearing, at the very same date and time, being denied to the applicant.

7. The circumstances of this case are closer to those in SZKGF. As considered in SZKGF and VUAX, there was plainly no “practical injustice” in these circumstances.

8. In my view, the breach of s.424 had no effect whatsoever not only on the Tribunal’s processes but on its decision. The applicant attended the hearing at the originally scheduled time and place and gave his evidence. The Tribunal’s decision plainly turned on the adverse view that it took of applicant’s evidence, in that it did not accept him as a: “witness of truth”.

9. In these circumstances, the Tribunal could not reach the requisite level of satisfaction (ss.65 and 36(2) of the Act), such that the protection visa therefore must be refused.

10. The second reason is that, in my view, and in any event, the circumstances of this case fall squarely within what was said in SZIZO at [97] per Lander J. That is, in “exceptional circumstances”, relief should be refused, even where there has been jurisdictional error in that the Tribunal failed to comply with its “imperative statutory obligations”. In my view, the circumstances of this case fall squarely within this description.

11. There is plainly no need, in the circumstances of this case, for the Court to: “inquire into the extent to which the failure by the Tribunal to comply with its statutory obligations to accord an applicant a fair hearing prejudiced the applicant”. No enquiry is necessary because the hearing took place as had been originally scheduled and notified to the applicant. In this case, there is no relevant “blunting” of the imperative (statutory) obligation imposed on the Tribunal (with reference to SZIZO at [97]).

12. In contrast, in SZIZO the letter inviting the applicants to the hearing was a letter that had not been addressed to the authorised recipient as required. The applicants proceeded to the hearing in response to that letter. The jurisdictional error arose squarely from the letter of invitation to hearing itself.

13. In the current case the letter of invitation to hearing was properly addressed to the authorised recipient. The jurisdictional error in the current case did not arise from the circumstances of the letter. The applicant attended the hearing in response to the letter which had been properly sent. The breach of a relevant statutory provision arose from a subsequent event (a telephone call) which ultimately played no part in the applicant’s attendance at the hearing.

Conclusion

1. In all, therefore, the grounds as stated in the application itself are not made out. The one issue revealing jurisdictional error on the part of the Tribunal is not such as to cause the Court to grant the relief sought by the applicant. In these circumstances, the application is therefore dismissed.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  24 April 2009