SZNPU v Minister for Immigration - [2009] FMCA 963

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNPU v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 963

MIGRATION – Review of decision of Refugee Review Tribunal – complaint that Tribunal failed to apply s.424AA in a way that was “fair and just” in accordance with s.422B(3) – complaint that Tribunal failed to consider applicant’s request for more time to respond to information – complaint that Tribunal was “distracted” by interpreter – relationship between s.422B(3) and s.424AA –Tribunal put “doubts” not “information” to applicant – information fell within exceptions – section 422B(3) does not extend procedural fairness obligations beyond Division 4 of Part 7 – SZMOK of general proposition – no failure to comply with s.425 – leave to amend further amended application refused – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.422B, 424A, 424AA, 425
Migration Amendment (Review Provisions) Act 2007 (Cth)

SZKCQv Minister for Immigration and Citizenship [2009] FCA 578
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46
Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZMHD v Minister for Immigration & Citizenship [2009] FCA 712
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR

Applicant:

SZNPU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1209 of 2009

Judgment of:

Nicholls FM

Hearing date:

14 July 2009

Date of Last Submission:

14 July 2009

Delivered at:

Sydney

Delivered on:

2 October 2009

REPRESENTATION

Counsel for the Applicant:

Ms T Baw

Solicitors for the Applicant:

Sarom Solicitors

Counsel for the Respondents:

Mr P Reynolds

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application made on 19 May 2009, as amended on 14 July 2009, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1209 of 2009

SZNPU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 19 May 2009 under the Migration Act 1958 (Cth) (“the Act”), and amended on 14 July 2009, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 April 2009, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

The applicant is a citizen of India who arrived in Australia on 9 September 2008 and applied for a protection visa on 8 October 2008 (Court Book – “CB”, CB 1 to CB 68 with annexures).

Claims to Protection

The applicant claimed to have been born into a family of devout Muslims. He was nonetheless educated at Catholic schools and introduced to Christianity. He claimed to have engaged in Christian activities which were resented by extremist Hindu groups. His activities were also opposed by a Muslim group. The applicant also claimed to have become politically active in 2003, and joined the Janata Dal Party.
The applicant claimed to have been harmed on a number of occasions because of his involvement in political activities, and his refusal to abandon Christianity, including in March 2009 when he joined a group of Christian evangelists and was attacked by Hindu extremists. He claimed that he and others were singled out as the main instigators of those seeking to convert Hindus to Christianity.
Further, that in January 2008 he fell in love with a Christian girl, and that this relationship was opposed by his family, and by members of a Merchant Association, which was said to have links with anti-Muslim and anti-Christian groups. This Association approached him on a number of occasions, and he was warned to cease his Christian activities and publicly renounce Christianity.
In all, the applicant claimed to fear harm from Muslims, extremist Hindu groups, and other political groups. He claimed to fear persecutory harm on the basis of his religion, his political opinion, his race, and his membership of a social group which, at best, appears to be: “Muslims who do not want to embrace their own religion and who are outspoken.”

The Delegate

The applicant was interviewed by the delegate (CB 89.4). There does not appear to be a record of that interview in the Court Book.
The delegate found various inconsistencies between the applicant’s written claims and those made at the interview, which led the delegate to reject central, and important, parts of the applicant’s factual claims. (See CB 90.5 to CB 93.) When each inconsistency, and each rejection of aspects of the applicant’s factual claims, were considered cumulatively the delegate was unable to reach the requisite level of satisfaction that the applicant faced a real chance of Convention related persecution on return to India for reasons of religion or political opinion. Further, that there was no evidence to indicate that the applicant faced a real chance of persecutory treatment for any other Convention reason (CB 94.3). The application was therefore refused.

The Tribunal

The applicant applied for a review by the Tribunal on 22 January 2009 (CB 95 to CB 99). He was represented by a solicitor, who was also a registered migration agent (CB 97).
The applicant was invited to attend a hearing before the Tribunal. His representative did not attend the hearing (CB 121). The Tribunal’s account of what occurred at the hearing is set out in its decision record. (See [27] at CB 130 to [75] at CB 139.)
The Tribunal found that it could not be satisfied that the applicant’s factual claims about his experiences in India were credible ([82] at CB 140).
The Tribunal found that the applicant was a “generally unimpressive witness” at the hearing, that his evidence was “notably vague”, that he “appeared evasive”, and that he: “gave no indication (that his responses) proceeded from any direct authentic personal experience of the dramatic incidents he claims” ([83] at CB 140). Further, the Tribunal found that the applicant: “showed only a partial familiarity with the lengthy statement of claim attached to his protection visa application,” and that there were “significant aspects of it … which seemed to be quite new to him.” This also was said to raise “further doubts about the reliability of his evidence” ([85] at CB 141).
In relation to each of the applicant’s factual claims, the Tribunal found as follows:
1.Conversion to Christianity: The Tribunal found that his claims regarding his involvement with Christianity in India were not credible ([88] at CB 141), and gave reasons for this ([89] at CB 141 to [94] at CB 143).
2.Harm as a Muslim: The Tribunal found that the applicant had never suffered harm at the hands of Hindus, either because they believed him to be a Muslim, or because of his alleged activity with other Christians in trying to convert Hindus, and that on information before it, was not satisfied that the applicant would face harm in India at the hands of Hindus because he was a Muslim ([97] and [98] at CB 143).
3.Political opinion: The Tribunal was not satisfied that the applicant had suffered harm in India because of his political opinion in the past, or that he would suffer harm for such a reason in the future. The Tribunal rejected the applicant’s claims that he had ever joined the “Janata Dal (Secular)” or any other political party in India. (See [99] at CB 143 to [102] at CB 144.)
4.Race: The Tribunal rejected the applicant’s claim in his protection visa application that he feared harm in India because of his “race”, given that he was “unable to shed any further light on this claim at the hearing,” other than some reference to becoming “part of the Christian race” ([103] to [105] at CB 144).
5.Particular social group: The Tribunal found that at the hearing before it the applicant “appeared ignorant” of a claim made in his protection visa application that he feared harm because of his membership of a particular social group. The Tribunal found that there was nothing in the applicant’s circumstances, as presented, such as to say that a claim clearly arose in this regard that obliged the Tribunal to deal with it ([106] to [109] at CB 144).
6.Past harm: The applicant claimed to have suffered serious harm in India at the hands of his family, Muslims from his mosque, and other Muslims in his area, including members of a Merchants Association, members of political parties, members of criminal organisations, and Hindu extremist groups, because he was seen to have converted from Islam to Christianity, and that he had been involved in evangelising activities. The Tribunal was not satisfied that the applicant had ever involved himself in the Christian religion in India, or that he was ever imputed with converting to Christianity, and it was not satisfied that he was at risk of harm for any such reason. The Tribunal also rejected, as not being credible, his account of an incident said have arisen out of a “love affair with a Christian girl” ([110] to [113] at CB 145).
7.In all, therefore, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he were to return to India, and therefore affirmed the decision under review.

Before the Court

At the hearing before the Court the applicant was represented by Ms T Baw of counsel. Mr P Reynolds of counsel appeared for the first respondent.
Although an amended application had been foreshadowed in this matter at the commencement of the hearing, Ms Baw sought to proceed on a “further” amended application. This was the subject of some objection. Ultimately, the hearing proceeded on the basis of what was asserted as the sole ground of the review in this “further” amended application. That is:
“The Tribunal failed to apply s.424AA of the Migration Act 1958 in a ‘a fair and just’ way in accordance with s.422B(3).”
I note that, in any event, the proposed amended application was in the following terms:
“The Tribunal failed to comply with s424AA and s424A of the Migration Act 1958 which amounted to jurisdictional error.”
Also in evidence before the Court (in addition to the bundle of relevant documents in the Court Book), was the affidavit of Sashimendra Singh (the applicant’s solicitor) of 30 June 2009, which attached a transcript of the hearing before the Tribunal on 1 April 2009. (No objection was made.) The applicant also provided the Explanatory Memorandum to the Migration Amendment (Review Provisions) Act 2007 (Cth).
The Court also had before it written submissions filed on behalf of the first respondent, which addressed the proposed amended application. Ms Baw handed up written submissions that related to the “further” amended application.
I understood the applicant’s complaint to be that the Tribunal failed to apply s.424AA of the Act in a way that was “fair and just”, in accordance with s.422B(3).

The Legislation

It is helpful to reproduce the relevant parts of the Act relied on by the applicant. Section 422B is in the following terms:
“Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.”
Section 424AA is in the following terms:
“Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(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; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.”

The applicant’s complaint and submission

In short, the applicant’s specific complaint is that at the hearing the Tribunal failed to properly consider the applicant’s response as to whether he needed more time to comment on, or to respond to, information that had been put to him. Further, that the Tribunal disregarded the applicant’s express wishes in this regard, and in so acting, the Tribunal acted in a way that was not “just and fair”.
In submissions, Ms Baw referred the Court to the following parts of the transcript (“T”) of the Tribunal hearing:
At T50, at line 6:
“[The Tribunal Member]: Okay. Look, I don’t have any more questions I wanted to ask, Mr [applicant]. One thing I meant to tell you - and I apologise for this - during the break I checked on the date on which the St Xavier’s school was founded, and it’s 1964 not 1974. Right. Now, as I say, I have no more questions, but I did want to say something to you and ask you to comment; that is that, on the basis of everything that you’ve told me and all the information that’s in front of the tribunal, I have to say that I have some doubts about the accuracy of your claims. In particular, I have doubts about your claim that you were involved with the Christian church when you were in India.
I have doubts that you participated in Christian activities such as going out to remote areas with preachers and other Christian friends to convert people, and I have doubts that you were attending church. I have doubts that your beliefs changed so that you were 95% Christian while you were in India. Now, apart from that, I also have some doubts about your claim that you joined a political party, Janata Dal, and that you were an active member in Janata Dal. First of all, can I just ask that you - I’m sorry, there is just one other thing I need to say. I also have doubts that you ever suffered harm for those reasons while you were in India. Okay. Now, first of all, could I just ask, do you understand what I’ve said about those things?”
At T51, at line 10:
“[The Tribunal Member]: All right. Okay. Now, what I’d like to do is give you an opportunity to comment on that or respond to it in any way you like. Now, the choice is up to you. I mean, you can decide you don’t want to respond to it at all if you don’t want to. I’m sorry, I’ll just go on and tell you about the alternatives: or you can decide you want to respond right now, or you could decide you’d like to respond at a later meeting, a later session of this hearing, or you could decide that you might like to respond in writing, maybe in conjunction with your migration adviser and with the CD of the hearing. If you needed more time to do that, we can talk about how much more time. So it’s up to you. If you want to think about it for a little bit, that’s fine.
Interpreter [the applicant]: What you have said I didn’t understand.
[The Tribunal Member]: I’m sorry. Okay.
Interpreter [the applicant]: No, I want to stop that where you told me just ---
[The Tribunal Member]: Well, what I’m trying to explain to you is that you can respond or comment on those things that I told you in any way you like. If you want to do it, you can do it right now, that’s fine.
Interpreter [the applicant]: For example, what are we talking about?”
Ms Baw submitted that the importance of this part of the transcript for the applicant’s argument is that the Tribunal gave the applicant a number of options relating to his responding to the “information” that the Tribunal put to him. The response of the applicant was to say that he did not understand.
Further, that the applicant’s subsequent answer was confused. This suggests that he was still under confusion as to what was being said. However, the Member does not then repeat the alternatives that were put to the applicant, but rather “truncates” the response. Importantly, Ms Baw submitted that the Tribunal did not go through the alternatives of which the applicant had initially said that he did not understand, but simply goes on to “re-explain his doubts about the accuracy about what was being told”.
Ms Baw then took the Court to T51, at line 38:
“Interpreter [the applicant]: Whatever I’ve said is the truth. Whatever you recommend I will do that. I’m working for a church, and you should believe in that. I can’t bring a certificate for you for about my belief. If you need I can get a letter from India from my church, and I can hand that in.
[The Tribunal Member]: I can’t tell you what to provide or not.”
The submission in relation to this part of the transcript was that the applicant indicated that he was willing to provide further information, that the Tribunal failed to appreciate this, and did not clarify whether or not the applicant wanted an opportunity to provide that further information.
Ms Baw also referred the Court to T52, at line 10:
[Interpreter]: Sorry, Member, I have to go, because I have to be in Burwood at 2 o’clock.
[The Tribunal Member]: My goodness gracious. Okay. Look, just one more thing I need to say. I’m going to call the hearing officer to come in ...”
The submission was that it appeared that the Tribunal Member became anxious to bring the proceedings to a close, and appeared to have proceeded on the assumption that the applicant was not requesting any further time, and that the Tribunal Member became distracted.
The Court was also taken to T52, at line 38:
“Interpreter [the applicant]: If you have any doubt, you can ask me to come back again, and I will try to clear that doubt.
[The Tribunal Member]: Well, I’m - are you are asking for another hearing?
Interpreter [the applicant]: Anything you want to find out on my life you can check with my lawyer or myself.”
Ms Baw submitted that there is a clear inference that the applicant is seeking more time to respond to the “Tribunal’s concerns”.
She also referred the Court to T53, at line 1:
“[The Tribunal Member]: Yes, okay.
[The applicant]: I want to request that.”
The submission was that the request that the applicant makes at this part of the hearing is that he needs further time to respond to the Tribunal’s concerns.
In all, therefore, I understood Ms Baw to draw from these parts of the transcript that the applicant was unclear as to what his alternatives were in responding to the Tribunal, and that secondly, the intervention by the interpreter was a “distraction” to the Tribunal Member, who then proceeded on the assumption that no further time was being requested.
Ms Baw relied on SZKCQv Minister for Immigration and Citizenship [2009] FCA 578 per Flick J, where in dealing with the issue of whether the Tribunal, in that case, failed to comply with s.424AA(b)(iv), his Honour said:
“18. Perhaps some degree of latitude is appropriate when determining what is sufficient to bring to the attention of the Tribunal that an applicant wishes to have further time in which to respond to “information”. There is certainly no requirement that a request need be in writing. Even a formal and express oral request for additional time may not be appropriate or necessary. The Tribunal, it is to be recalled, is given the mandate to conduct its review functions in a manner that is “fair, just, economical, informal and quick” (Migration Act 1958 (Cth) s 420(1)) and in an “inquisitorial manner”: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60, 75 ALD 1 at [57] per Gummow and Heydon JJ and at [60] per Kirby J. In an appropriate case it may thus be manifestly apparent to the Tribunal that an applicant is in fact seeking additional time — even though he has not said so. But there is nothing now before this Court to indicate that the Appellant was not willing to respond to all of the “information” then before the Tribunal. There was, for instance, no transcript of the hearing before the Tribunal from which any inference favourable to the Appellant may have been drawn.”

The submission was that while these comments are “obiter”, they are applicable to the current case in that there is a transcript before the Court, and that some degree of “latitude” should be brought to bear. That the exchanges set out above show that there had been serious misunderstandings by the applicant during the hearing. That he had given non-responsive and confused answers, and that in this sense, some “latitude” should be granted. That what the applicant was saying should be understood as being a request for more time to respond to the information put to him by the Tribunal.
Ms Baw explained that the thrust of the applicant’s argument was not necessarily that the applicant was complaining about any failure to give clear particulars of information, or a denial of information, but (with reference to s.422B(3)) in applying s.424AA, the Tribunal acted in such a way that was not “fair and just”. That this is required because s.422B(3) of the Act is a “mandatory” provision in this regard.
She explained that any argument put forward by the respondent that a breach of s.424AA was not jurisdictional error because it is not a “mandatory” provision (with reference to SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 (“SZMCD”)) is not relevant, because even though s.424AA is “not mandatory”, it must nonetheless be applied consistently with s.422B(3) when the Tribunal seeks to engage it. Section 422B(3) seeks to ensure that in carrying out the procedures and requirements set out in Division 4, the Tribunal must do so in such a way which is “fair and just” (with reference in particular to the Explanatory Memorandum – see item 17 at [46]).
Ms Baw also submitted that she relied on what was said in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 (“SZMOK”) at [18], that s.422B(3) “might therefore be understood as restoring fairness and justice as a procedural concept.” Further, at [18]: “Accordingly, it was possible that those powers (the powers in Division 4) could be used in ways that were not fair without infringing procedural requirements of Division 4.” Ms Baw submitted that this was consistent with what was intended in the drafting of the legislation, with reference to the Explanatory Memorandum of the Migration Amendment (Review Provisions) Act 2007 (Cth):
“46. Division 4 relates to the RRT's conduct of its reviews. Subsection 422B(1) provides that Division 4 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. New subsection 422B(3) ensures that in carrying out the procedures and requirements set out in Division 4, which continue to be an exhaustive statement of the natural justice hearing rule, the RRT must do so in a way which is fair and just. This complements subsection 420(1) of the Act, which provides that in carrying out its functions under the Act, the RRT must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick .”

Consideration

I understood the applicant’s argument, in part, to be that s.422B(3) mandatorily requires the Tribunal to act in a way that is “fair and just” in applying the various sections set out in Division 4 of Part 7, which includes s.424AA.
To that point, I understood the applicant’s submissions to be consistent with relevant authority (see SZMOK at [18], in particular).
However, the short answer to the applicant’s ground is that s.424AA is concerned with “information”. That is, that the Tribunal may orally give to the applicant clear particulars of any “information” that it considers would be the reason, or part of the reason, for affirming the decision under review. If the Tribunal seeks to do so, then it must comply with the matters set out in s.424AA(b).
With reference to those parts of the transcript extracted above, the applicant complains that the Tribunal sought to engage the provisions of s.424AA, but failed to properly comply with 424AA(b)(iii), and in particular 424AA(b)(iv). This is said to be because the transcript reveals that the applicant did seek additional time to comment, and the Tribunal did not provide such time, in part, because it misunderstood what the applicant was saying, and in part also, because it became distracted by the intervention of the interpreter.
The applicant’s ground does not succeed, however, because it misses the point that s.424AA is plainly concerned with the giving of clear particulars of “information” that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review.
The applicant’s complaint can only succeed if the Tribunal can be said to have failed to advise the applicant that he could seek “additional time to comment on or respond to the information”. With reference to those parts of the transcript extracted above, even if it can be said that the applicant did seek additional time, he had to be seeking additional time to “comment on or respond to the information” (ss. 424AA(b)(iii) and 424AA(b)(iv)).
In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) at [18], the High Court explained what can be characterised as constituting “information” within the meaning of s.424A(1)(a) of the Act. I note in particular:
“Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting ‘information’ within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute ‘information’. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word ‘information’...
‘does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.’
If the contrary were true, s 424A would, in effect, oblige the Tribunal to give advance written notice not merely of its reasons, but of each step in its prospective reasoning process. However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant ‘information’ was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.”
The term “information”, as it appears in s.424AA, is to be given the same meaning as that in s424A. Both sections are: “intended to be complimentary.” (See SZMCD at [2] per Moore J, and at [91] per Tracy and Foster JJ: “In our view, the information covered by each section must be the same.”)
In this light, whether the Tribunal failed to provide the applicant with more time, or did not understand that the applicant was seeking more time, or even became distracted because of the intervention of the interpreter, does not assist the applicant, because, as Mr Reynolds correctly submitted, in my view, what the Tribunal was putting to the applicant at those parts of the transcript relied on by the applicant now was not “information” for the purposes of s.424A or, relevantly, s.424AA. It was putting to the applicant its doubts about his claims.
Even the applicant’s written submissions clearly state that the Tribunal “begins to particularise certain information” (see [9]), but then sets out five instances of this “information” that are said to derive from what appears in the transcript as being described as “doubts” that the applicant was involved with the Christian church, “doubts” about the applicant’s claim to have participated in Christian activities, “doubts” that the applicant attended church in India, “doubts” about the applicant’s claim that he joined a political party, and “doubts” that he suffered harm for those reasons while in India.
As was said in SZBYR, the Tribunal’s subjective appraisal (which includes doubts) is not “information” for the purposes of ss.424A or 424AA.
Further, any plain reading of the transcript as a whole reveals that up to the point relied on by the applicant now (that is, beginning at T50), the Tribunal extensively engaged with the applicant in relation to his factual account of what he said had occurred in India.
The applicant now asserts that what the Tribunal sought to do from T50 onwards was to embark on a “s.424AA exercise”. Great care must be taken in assigning legislative “labels” to different parts of the Tribunal’s actions. That is not to say that the Tribunal is not obliged to comply with mandatory legislative provisions, or to properly deal with discretionary powers once it has chosen to embark on the exercise of those powers. But to seek to label parts of a transcript, as the applicant sought to do in this case, can be misleading.
In my view, any plain reading of the transcript reveals that, having completed its questioning of the applicant in relation to his factual account and his claims, what the Tribunal sought to do at T50 and following was to put to the applicant the “doubts” that it held about his claims. At T50 at line 10 (as extracted above at [24]) the Tribunal clearly put to the applicant that it had no more questions about his claims, but wanted to squarely put to him “doubts” about what he had told the Tribunal, and arising from the information that was in front of the Tribunal.
The Tribunal itself said: “… I have to say that I have some doubts about the accuracy of your claims….” (T50, at line 12). It then specifically directed the applicant to key aspects of his factual claims, as noted at paragraph 9 of the applicant’s written submissions before the Court, and, in relation to each one, plainly put to the applicant the “doubts” that it had about the applicant’s factual claims.
I also note that, in relation to those “doubts”, the Tribunal asked the applicant if he understood what was being put to him. (See T50, lines 24 and 25 as extracted above at [24] of this Judgment.) I note further, although not specifically referred to in this part of the transcript by Ms Baw, that the applicant immediately responded: “Yes” (at T50, line 26).
When read plainly, therefore, whatever the Tribunal subsequently understood, or did not understand, or whether it subsequently became distracted as submitted by the applicant, does not reveal a breach of s.424AA, because the Tribunal was not seeking comment on “information” as that term can be characterised, or understood, in the context of s.424AA, but was putting to the applicant its “doubts” about his claims. Such “doubts”, as set out in SZBYR, are not “information” for the purposes of s.424AA, or s.424A for that matter.
In this regard, to the extent that the Tribunal used the word “information” in parts of the transcript as extracted above, I note that a clear distinction can be drawn between the “information”, being the “information” before it (as discussed earlier, for the most part, at the hearing), and its “doubts” about this information, which it was seeking to put to the applicant.
Further, and in any event, bearing in mind the complimentary nature of the relationship between ss.424AA and 424A (that is, that s.424AA provides the Tribunal with the opportunity to discharge its obligation pursuant to s.424A(1) orally rather than in writing), in my view, on any plain reading of the transcript of the hearing, the “information” about which the Tribunal said it had doubts, was “information” that had been provided by the applicant himself, either during the course of the hearing before the Tribunal, or in writing in support of his protection visa application, in which case such “information” falls within the exceptions respectively set out in ss.424A(3)(b) and 424A(3)(ba) from the obligation in s.424A(1).
In this way, there was no necessity in any event in relation to this “information” for the Tribunal to have sought to engage the provisions of s.424AA as an alternative means of complying with the obligation in s.424A(1).
I also understood Ms Baw to submit that s.422B(3) has the effect of creating the procedural requirements of acting in a “fair and just manner” in relation to s.424AA, and that the Tribunal’s failure in not being “fair” and in acting “unjustly” was in response to whether or not there was further time required by the applicant to make his response.
During the hearing, when pressed with the issue of whether what the Tribunal was putting to the applicant was “information” for the purposes of s.424AA, Ms Baw submitted that the “nub of” the applicant’s complaint is that, with reference to ss.422B and 424AA(b), (and in particular, ss.424AA(b)(iii) and 424AA(b)(iv)) the Tribunal acted unfairly and unjustly.
In essence, I understood the submission, at least by inference, to argue that s.422B(3) created some procedural requirement (that is, to act fairly and justly) beyond what is expressly provided for in Division 4. That is, relevantly, that the Tribunal should have understood the applicant to be seeking additional time to provide his comments.
There appeared to be some difficulty in understanding that s.424AA was concerned with the provision of the opportunity to comment on “information”. Further, that the introduction of s.422B(3) did not create some expansion of the notion of procedural fairness beyond what is set out in Division 4 in relation to the matters that that Division deals with.
Ms Baw sought to distinguish what was said by the Full Court in SZMOK on the basis that the situation before the Full Court in that case was different to the factual situation relied on by the applicant now. That is, that during the hearing of the review, the exchange between the applicant and the Tribunal revealed that there was an express request by the applicant for more time to comment.
This argument must be rejected to the extent that it seeks to assert that the effect of s.422B(3) is that any request for more time made by an applicant to comment on anything that other than “information” engages s.424AA(b).
In the relevant parts of SZMOK the discussion of the relevant statutory provisions were expressed as matters of general proposition, and exposition of understanding about these legislative provisions, and the relationship between s.422B(3) and the other sections in Division 4. What the Court said was not limited only to the factual situation before the Court in that case.
The Full Court gave clear direction as to how the relationship between s.422B and Division 4 is to be understood. (See from [6] of SZMOK.) I note in particular:
“15 Clearly, s 422B(1) has not been repealed by s 422B(3). Accordingly, s 422B(1) continues to exclude common law procedural fairness in relation to the matters dealt with by Division 4, except to the extent of the procedural codes set out in Division 4. Section 422B(3) may be understood as an exhortative provision in the same way as s 420(1) is an exhortative provision. Just as s 420 does not create rights or a ground of review, additional to specific rights of review that are expressly given by the Act, so s 422B(3) should not be understood as creating a procedural requirement over and beyond what is expressly provided for in Division 4 …”
To the extent, therefore, that the applicant’s argument relies on the submission that s.424AA is engaged, notwithstanding that what the Tribunal was putting to the applicant for comment were “doubts” (and with reference to SZBYR this is not “information” for the purposes of s.424A, and nor is it, with reference to SZMCD, “information” for the purposes of s.424AA), that nonetheless there is some additional procedural fairness requirement required because of s.422B(3), I note and apply what was said by the Full Court in SZMOK:
“16 Section 424A does not require the Tribunal to put its thought processes or preliminary conclusions to an Applicant (see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18]). Further, s 422B(3) should not be construed as imposing such an obligation or requiring s 424A to be interpreted as imposing such an obligation. Section 422B(3) speaks of how the Tribunal must act in applying Division 4. It is not a free standing obligation, but simply draws content from the other provisions of Division 4.
17 Thus, s 422B(3) was not intended to qualify or cut down in any way the express statement in s 422B(1) that Division 4 contained an exhaustive statement of the application to the conduct of a review by the Tribunal of the natural justice hearing rule in relation to the matters dealt with in Division 4. In that sense, s 422B(3) complements s 420(1). The unequivocal statement in s 422B(1) of the exhaustive nature of Division 4 renders it unarguable that some other requirement of fairness are to be implied.”
In short, therefore, there is no additional, or general, procedural fairness requirement of “fair” and “just” to be applied to the provisions of s.424AA(b), or above and beyond those provisions. If that section is utilised, or engaged, then clearly the Tribunal must act in a fair and just way in implementing the requirements of that section.
But if s.424AA is not engaged, then there is no additional, or freestanding, obligation on the Tribunal to act in a fair and just way beyond the provisions of s.424AA, a section which is clearly concerned with the giving of “information” and the opportunity for the applicant to comment on “information”.
I agree with Mr Reynolds that the applicant’s argument that SZMOK should be limited to a particular factual situation that arose in that case must be rejected. (See also SZMHD v Minister for Immigration and Citizenship [2009] FCA 712 at [56] per Jacobson J.)
What was clearly missing in the applicant’s submission was that s.424AA is concerned with “information”. Whatever the applicant may wish to submit about s.422B(3), it is clear that that subsection does not alter the fact that s.424AA is concerned with the giving of “information”, and the opportunity for an applicant to comment on that “information”. What the applicant relies on now as being “information” such as to engage s.424AA is not, even on the applicant’s own description (“doubts”), “information” for the purposes of s.424AA.
Whatever the Tribunal was doing at that part of the transcript relied on by the applicant, it was not putting for him to comment “information” as that term is understood pursuant to s.424AA. The applicant’s ground, therefore, as pleaded and argued, does not succeed.
During the course of the hearing before the Court, and during submissions by Ms Baw, I sought to understand why the applicant chose to press s.424AA in circumstances where he relied on material from the transcript that was not concerned with “information” for the purposes of that section.
I mused that where the Tribunal put its “doubts” to the applicant, that s.425 of the Act may have been a more fruitful avenue for the applicant to have explored, given that the Tribunal’s “doubts” may have gone to the issue, or issues, in relation to the review. The question may have been better posed as to whether the Tribunal complied with its procedural fairness obligations pursuant to s.425(1) as explained by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR (“SZBEL”).
Towards the conclusion of the hearing before the Court, some way into submissions in reply, Ms Baw sought to raise an additional ground, ultimately by way of another further amended application, and to be argued by way of further written submissions. Ms Baw sought to argue that the applicant’s ground, to the extent that it relied on 422B(3), also applied to s.425 of the Act, which was also a part of Division 4.

To the extent that I understood Ms Baw to be seeking leave to further amend the “further” amended application, and leave to provide written submissions in support, I refused leave.
First, the applicant has been represented by a firm of solicitors since (at least) the making of the application to the Court on 19 May 2009.

I note that this is the same firm of solicitors, and the same solicitor from that firm, that assisted the applicant before the Tribunal (see

CB 97 to CB 121). I note also that the applicant was represented by counsel.
I accept submissions from Ms Baw that at the time of drafting the “further” amended application, and the drafting of written submissions, both she and the instructing solicitor were sick (I understood this was not an excuse, but an explanation). Nonetheless, what remains is that the applicant’s legal representatives sought to put on a further “further” amended application before the Court, and a further opportunity for written submissions. They did so towards the end of the final hearing of this matter.
The applicant was granted an “indulgence” (to use the word used by Ms Baw) at the beginning of the hearing when he was granted the opportunity to proceed on a “further” amended application. Nothing was said in relation to any ground arising from s.425 at the beginning of the hearing. I can only agree with Mr Reynolds that that time was the opportunity (even at that late stage) for the request to have been made.
I note further that at the first Court date in this matter on 24 June 2009 a clear timetable had been set for the progress of this matter, and that the granting of leave in relation to the further amended application was done outside of what had been ordered at the first Court date (by consent of both parties). The applicant was represented by a solicitor on that first Court date who agreed, on the applicant’s behalf, with the amended timetable that was then set for the progress of the applicant’s case before this Court.
Second, and in any event, I was also mindful of Ms Baw’s submission, in seeking this leave, that the applicant’s argument would be that the application of s.422B applied to s.425, in the same way that it did to s.424AA. To the extent, therefore, that the applicant would seek to rely on some additional, freestanding obligation, then such an argument would not succeed in relation to s.425 for the same reason that it does not succeed in relation to s.424AA, as set out above.
Further, as stated above, the Tribunal’s procedural fairness obligations as they are said to arise from s.425 of the Act are explained by the High Court in SZBEL.
In short, an applicant before the Tribunal is entitled to assume that issues that were determinative and dispositive of the application before the delegate, are determinative before the Tribunal, unless the Tribunal, in inviting the applicant to appear before it at a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review, exposes other such issues to the applicant during the course of the hearing. If any such latter issue is relied upon by the Tribunal and not exposed at the hearing, then the Tribunal can be said to have failed in its procedural fairness obligations pursuant to s.425.
The issue that was determinative of the application before the delegate was that the delegate, for various reasons, rejected the applicant’s factual account of what he said had relevantly occurred in India.
The Tribunal also rejected the applicant’s factual account of what he said occurred in India, as expanded and enhanced before it. (See [13] above.)
But in addition, and at least on a fair reading of those parts of the transcript to which the applicant referred and relied, the Tribunal was concerned to put to the applicant those issues arising from the applicant’s evidence that were ultimately dispositive of the review. In particular, those aspects of the applicant’s factual account of what he said had occurred in India which formed the basis of his fearing persecutory harm should he return. (See [24] to [25] above.)
In terms of s.425 (and bearing in mind what the High Court said in SZBEL), a reading of the transcript as a whole reveals that the applicant was given every opportunity to explain the factual basis of his account of claimed harm in India in the past, and why he would suffer harm as a result in the future if he were to return. In relation specifically to those parts of the transcript now relied on by the applicant (in terms of s.425), the Tribunal squarely put the issues dispositive of the review to the applicant at the hearing.
In this regard, it is also important to note that the specific provisions contained in s.424AA(b), and for that matter, in s.424A(1), are not replicated in s.425. It would not be open to the applicant, therefore, to argue that the provisions of ss.424AA(b)(iii) and 424AA(b)(iv) apply to s.425 through the auspices of s.422B(3), as was inferred in seeking leave to rely on s.425 because s.422B(3) applied to it, as well as s.424AA.
But in any event, in terms of the issues that the Tribunal had exposed to the applicant, that is, the issues dispositive of the review, the applicant told the Tribunal that he understood what was being put to him, and its importance. This is seen at T51, at lines 5 to 8:
“[The Tribunal Member] … But I just want to make sure in my own mind that you understand what I’ve said and why it’s important.
Interpreter [the applicant]: Yes.”
What is set out later in the transcript, showing the applicant saying that he did not “understand”, was the Tribunal’s subsequent statement in relation to whether the applicant wanted more time to make a response to the issues raised by the Tribunal. (See T51, at line 21.)
Any plain reading of what then is set out in the transcript, in my view, reveals that the applicant well understood that the critical issue was that the Tribunal had concerns about the credibility of his factual account of what he said had occurred in India. The applicant then immediately responded by telling the Tribunal that he has told the truth, and that the Tribunal should believe him. (See T51, at lines 39 to 41.)
In particular, the applicant told the Tribunal that he had difficulties in providing further information from India to respond to the Tribunal’s concern. Importantly, even after what was claimed to be the “distraction”, being the intervention by the interpreter (see T52, at line 10), the hearing still continued, and the Tribunal asked the applicant:
“[The Tribunal Member]: Right. Thanks for that Mr [applicant]. Is there anything you want to add that we haven’t already talked about?
Interpreter (the applicant): No.”
Then further at T52, at line 38:
“Interpreter [the applicant]: If you have any doubt, you can ask me to come back again, and I will try to clear that doubt.
[The Tribunal Member]: Well, I’m - are you asking for another hearing?
Interpreter [the applicant]: Anything you want to find out on my life you can check with my lawyer or myself.
[The Tribunal Member]: Yes. Okay.
[The applicant]: I want to request that.
[The Tribunal Member]: I will make a decision on the information that’s in front of me. Okay. All right. Once again, thank you very much indeed Mr [applicant], for attending the tribunal and cooperating with the work of the tribunal. If I could express the tribunal’s thanks to our interpreter for his work today. Thank you very much, and my apologies, Mr Interpreter.
…
[The applicant]: Thank you.”
A number of matters relevantly emerge from the above.
First, the Tribunal exposed to the applicant its concerns about his factual account of what he said had occurred in India, and the view that the Tribunal took about some key specific aspects of that account.
Second, the applicant responded at the hearing by asserting that what he had told the Tribunal was the truth.
Third, the applicant did not respond to the Tribunal’s question as to whether he wanted a further hearing in any affirmative or positive way. The applicant’s response was to leave the matter with the Tribunal, and that if there was anything further that Tribunal wanted to find out, then the Tribunal should proceed to “check” with either him or his lawyer. This must be read in the context of the Tribunal having clearly told the applicant that it had no further questions to put to him, and was merely putting to him its concerns about his evidence. The Tribunal dealt with that request by the applicant by responding that it would not be making any further enquiries of the applicant, but would make a decision on the information that was already in front of the Tribunal. The applicant appeared to acquiesce in this.
In the circumstances, I cannot see any failure to comply with the procedural fairness obligations arising from s.425 as explained by the High Court in SZBEL.
For all these reasons, therefore, it is not appropriate that the applicant be granted the late request for leave to further amend the “further” amended application, and to make further written submissions.

Conclusion

In all, with the benefit of legal representation, including counsel, the applicant has argued one ground before this Court by way of a “further” amended application. For the reasons set out above, that ground does not succeed. Further, nor could I see that it was in the interests of the administration of justice that the applicant be allowed to raise a further ground at the end of the final hearing in this matter in all the circumstances outlined above. For these reasons, this application is dismissed.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: C Darcy

Date: 2 October 2009