SZOIN v Minister for Immigration
[2010] FMCA 741
•30 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOIN v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 741 |
| MIGRATION – Review of decision of Refugee Review Tribunal – no denial of procedural fairness – breach of s.418(3) does not reveal jurisdictional error – s.418(3) does not give rise to an ongoing obligation – material not constructively before the Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.116, 273, 418, 422B, 427 |
| Regina v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330 O’Sullivan v Repatriation Commission (2003) 128 FCR 590 Saeed v Minister for Immigration and Citizenship [2010] HCA 23 WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319 SBAA v Minister for Immigration & Multicultural Affairs [2002] FCAFC 195 NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51 WAGP v Minister for Immigration & Multiculturalism & Indigenous Affairs [2006] FCAFC 103 Matete v Minister for Immigration and Citizenship [2008] FCA 1876 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 [2003] HCA 1; 211 CLR 441; 195 ALR 1 |
| Applicant: | SZOIN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 807 of 2010 |
| Judgment of: | Nicholls FM |
| Hearing date: | 24 June 2010 |
| Date of Last Submission: | 24 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 30 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Kinslor Prince Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 13 April 2010, and amended on 20 August 2010, is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $10,600.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 807 of 2010
| SZOIN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 13 April 2010, and amended on 20 August 2010, under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 17 March 2010 which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
Background
The applicant is a citizen of Nigeria. He arrived in Australia on 10 August 2009. It appears that on arrival the applicant’s visa was cancelled pursuant to s.116 of the Act. This followed an interview with an officer of the Minister’s department. He was taken into immigration detention. He subsequently applied for a protection visa on 13 August 2009 (see Court Book – “CB” – CB 1 to CB 56). He was assisted by a migration agent (CB 29).
The Applicant’s Claims to Protection
The applicant’s claims to protection were initially set out in a statement attached to his application (CB 47 to CB 48). He claimed to fear harm from militants in his home area because of his involvement with a Christian church which preached against the militant activists.
The applicant claimed his father and brother were kidnapped by militants in his home area who then demanded the payment of a ransom. Both his father and his brother were subsequently killed. He then returned to Lagos to rejoin his wife. The militants pursued him there and stormed into his home. He escaped and went into hiding. He came to Australia to seek protection.
The Delegate
The applicant was ultimately interviewed by a delegate of the Minister. He provided a large number of documents in support of his claims, including a letter from the Pastor at the Christ Ascension Church in the applicant’s home state (CB 115).
At the interview the applicant identified the militants as being from the Movement for the Emancipation of the Niger Delta (MEND). He advanced a new claim that he had been forcibly initiated into MEND, but had not worked for them. He now advanced an additional fear, namely a fear of harm from MEND because of his refusal to participate in their activities (see CB 133.3).
The delegate refused the application on 23 October 2009 (CB 127 to CB 136).
The Tribunal
The applicant applied for review on 28 October 2009 (CB 139 to CB 144). He continued to be represented by a migration agent (CB 142). A new agent was appointed on 27 November 2009 (CB 163).
The applicant attended hearings before the Tribunal on three occasions: 4 December 2009 (CB 164), 31 December 2009 (CB 173) and 23 February 2010 (CB 193). His agent attended on each occasion, as did a growing number of supporters.
The applicant’s adviser made written submissions on his behalf following issues raised at the second hearing (CB 178 to CB 181). This included further documents submitted on the applicant’s behalf.
By letter dated 3 March 2010 the Tribunal invited the applicant’s comments on information which it said it considered would be the reason or a part of the reason for affirming the decision under review (CB 197 to CB 199). This information was said to be inquiries made by the Australian Department of Foreign Affairs and Trade, at the Tribunal’s request, in an attempt to locate and identify the pastor who had provided documentary support for the applicant’s claims.
The Tribunal told the applicant that as a result of this information the Tribunal could reject important aspects of the applicant’s factual account of relevant events in Nigeria which underpinned his claim to fear persecutory harm.
The applicant responded (CB 204).
The Tribunal found that the applicant was not credible on key aspects of his factual claims ([101]). The Tribunal found that the applicant was not truthful or credible in relation to his Convention claims ([102]).
The matters that influenced this were:
1)The provision of his brother’s contact details as contact person on arrival in Australia was contradicted by his claim in his protection visa application that his brother was dead. The Tribunal considered and rejected the applicant’s explanation for this inconsistency.
2)The Tribunal did not accept as true the contents of the letter said to be from the applicant’s pastor in Nigeria, which he submitted in support of his claims relating to the death and burial of his father and brother. The letter asserted that the pastor had witnessed these events. The Tribunal formed this view because it preferred the results of the inquiries it had initiated which found no record of the pastor or his church.
3)The Tribunal did not accept the applicant’s claim that he had undergone an initiation ceremony by the militants following his being abducted and detained by them for some days. The Tribunal considered this “extremely significant” and the applicant could not have omitted it from his protection visa application or attached statement. The Tribunal noted that the applicant mentioned this for the first time at the end of the interview with the delegate when it was clear to him that the delegate had serious reservations about his claims.
4)The Tribunal found the applicant’s account of the claimed attack on his house in Lagos in March 2009 as not convincing. The Tribunal gave reasons for this.
5)The Tribunal was not satisfied that the applicant would have remained in Nigeria for 6 months following this incident given the intention to kill him. Further, given the applicant’s own evidence, the Tribunal considered that if the militants had intended to kill him they could have done so.
6)The Tribunal did not accept that the applicant, nor any members of his family, were targeted by MEND. The Tribunal relied on independent country information which it researched to come to this conclusion. It gave reasons for this.
7)On the same basis the Tribunal also rejected the applicant’s claim that he had been forcibly recruited into MEND, or that his father and brother had been abducted and killed by MEND members. Nor did it accept that the armed men entered his house because, given the circumstances described by the applicant, it was “far fetched and implausible” that he was able to escape.
8)The Tribunal was not satisfied that the MEND targeted the applicant and his family because of their religion or because they did not support MEND.
In all, therefore, the Tribunal, having rejected the key factual basis of the applicant’s claim to fear persecutory harm, found it was not satisfied that he had a well founded fear of persecutory harm if he were to return to Nigeria. The Tribunal affirmed the delegate’s decision.
Before the Court
At the first Court date in this matter the applicant appeared in person. On a subsequent occasion leave was granted to Mr D Prince, solicitor, to address the Court in the capacity of amicus curiae. Mr Prince raised concerns about the applicant’s emotional and psychological condition. Ultimately, at the final hearing, the applicant was represented by Mr L Karp of counsel. The Minister was represented by Mr T Reilly of counsel.
Both parties have made written submissions.
The hearing proceeded on the basis of an amended application filed on 20 August 2010. It contained three particularised grounds:
“1. The decision was made in breach of the rules of natural justice.
Particulars
(a) Information crucial to the issues arising in the review (that being psychological and medical records), in the possession of the first respondent was not passed to the second responded (the Tribunal).
(b) The Tribunal made its decision without the benefit of that information.
2. The Tribunal failed to consider crucial evidence constructively before it.
Particulars
(a) That information referred to in ground 1(a) above.
3. The decision involved a breach of s 425(1) of the Migration Act.
Particulars
(a) The applicant was not in a fit state to give evidence at the hearing.”
Ground three was subsequently not pressed.
Leave was granted, subject to establishing relevance, for the affidavit of Mr Prince of 20 August 2010 (with annexures) to be put before the Court.
No objection was taken to reading the applicant’s affidavit of 26 August 2010 into evidence. Leave was granted for this purpose.
The Grounds of the Application
In general I understood the applicant’s complaint before the Court to be that the Tribunal’s conduct of the review was vitiated by the fact that medical assessments relating to the applicant’s mental condition, conducted at the same time as the applicant’s matter proceeded before the Tribunal, were not put before the Tribunal.
Mr Karp took the Court to [47] (at CB 220) and [68] (at CB 224) of the Tribunal’s decision record to note that the Tribunal itself made reference, in the first instance, to the applicant having told the delegate that “… he experiences nightmares and bad dreams about blood and violence…” and, in the second instance, that he told the Tribunal that he had not mentioned his initiation experience with the MEND activists in his protection visa application because “… recalling the matter reminds him of what he went through and the memories traumatise him…”.
Mr Karp submitted that, unknown to the Tribunal, a “parallel process” of evaluation of the applicant’s emotional and psychological state was being conducted by various health professionals. Importantly, this was being done while the applicant was in the care and control of the Minister’s department (“the department”) while being held at the Villawood Immigration Detention Centre (“VIDC”).
Various documents annexed to the affidavit of Mr Prince reveal this activity. These documents were provided to the applicant’s solicitors by the first respondent in response to a Notice to Produce issued in these proceedings ([2] of Mr Prince’s affidavit).
Mr Karp referred in particular to the following documents:
1a)A “Mental State Examination Assessment” report prepared by an employee of “International Health and Medical Services”, dated 12 August 2009 (page 001 of the annexure to the affidavit of Mr Prince).
1b)In particular that the report noted:
i)The applicant’s mood was “very stressed”, the affect was “congruent with his mood”, there was a “delayed response in conversation”, and the applicant displayed “poor concentration throughout the interview”.
ii)The applicant was referred to “STARTTS” (Service for the Treatment and Rehabilitation of Torture and Trauma Survivors).
2)A “Mental Health Examination Assessment” by a psychologist dated 3 November 2009 (pages 012-013 of the annexure to the affidavit of Mr Prince) which noted “mild PTSD symptomatology” and “low mood”. Further: “chronic, mild headache, client perceives this to be stress related… appetite fluctuates according to mood”.
3a)The STARTTS report prepared by a clinical psychologist, dated 18 November 2009 (pages 015 to 025 of the annexure to the affidavit of Mr Prince).
3b)In particular:
i)The report attempts to ascertain whether the applicant’s: “symptoms are consistent with his experiences…” (page 018).
ii)That information relevant to the report was obtained from the author of the “IHMS” report and from a psychologist “… at Villawood Immigration Detention Centre” (page 018).
iii)At 9.1 of the report (page 21): “During the interview [the applicant] expressed feeling of hopelessness and impotence. He does not hold much hope that things will improve for him in the future and made comments about the lack of control he currently has over his life and destiny. There was no indication of paranoid ideation, delusions or hallucinations present and [the applicant] stated he does not have any thoughts of harm to self and/or others. [The applicant] did however report that in 2008, after he was captured and subsequently released, ‘he, at times [when he was alone], heard unknown voices calling him to join the group’. [The applicant] stated that this experience only lasted for about four or five days because he followed the advice of his pastor and prayed in a ‘particular way’ and ‘after four days the voices were gone’. Overall [the applicant’s] presentation during the assessment interview was consistent with what he reported during the session regarding his current psychological difficulties.”
iv)Under “9.2 Clinical Presentation” in particular that he relives his recollections of being captured by the militants. Further, he stated “… accompanied psychological distress and physiological reactivity are often brought on by talking about the traumatic events that he experienced or talking about his family and his life back in Nigeria” (page 021).
v)The assessment reported on psychological difficulties, the assessor’s impressions of his mental state which were said to warrant a diagnosis of Post Traumatic Stress Disorder and major depressive disorder (page 023).
Mr Karp submitted first that there is a duty on the department, because of its “special relationship” with the Tribunal, to provide documents to the Tribunal.
Second, that with reference to the Tribunal’s letter of 28 October 2009 to the applicant acknowledging receipt of his application for review the Tribunal said (CB 147):
“We have requested that the Department of Immigration and Citizenship (the Department) provide us with all documents and files which they consider to be relevant to your application”.
I understood Mr Karp’s submission to be that s.418(3) of the Act, dealing with the provision of relevant documents to the Tribunal by the department, contains a requirement of reasonableness. That the reference in s.418(3) to the Secretary to the Minister’s department be read as being in the circumstances indistinguishable with the department. Therefore, that there is an objective determinant as to what should reasonably be considered relevant and to be given to the Tribunal. The obligation on, relevantly, the Secretary to the department (“the Secretary”), is to require the Secretary to produce all documents which are reasonably or objectively relevant to the review. Further, that this requirement is a continuing requirement for any documents (as in this case the mental health documents) created during the course of the review.
As to the “special relationship”, Mr Karp referred to s.273 of the Act to assert that immigration detention centres are created, established and maintained by the Minister on behalf of the Commonwealth. The argument was that any medical treatment or assessment which an applicant may receive while in immigration detention is given by persons operating in a Commonwealth facility and therefore on behalf of the Commonwealth.
Mr Karp submitted that, given that an applicant cannot go outside a centre and attend a doctor, the medical assessments are kept by the Commonwealth. A circumstance that he said was made clear because: “… the Commonwealth produced these medical records as a result of a notice to produce on the Minister”.
He also submitted that, even if the requirement in s.418(3) was to be treated as a subjective requirement, a duty on whoever controls the information (that is, the medical documents in this case) still arises for the Tribunal to be given that information. Particularly in circumstances where the applicant is in detention in a facility where medical records are controlled by the Commonwealth.
In this regard Mr Karp referred the Court to English authority: Regina v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330 (“Ex parte A”), especially at pages 345 to 347. (But see also O’Sullivan v Repatriation Commission (2003) 128 FCR 590.)
Mr Karp submitted that the Tribunal’s action in proceeding without the medical documents, even though it had no actual knowledge of them, in circumstances where they should have been given to the Tribunal by the department, was procedurally unfair. That is, its decision was made in breach of the rules of natural justice. Section 422B of the Act does not apply as nothing in Division 4 of Part 7 of the Act “deals with” the situation before the Court. (He relied on Saeed v Minister for Immigration and Citizenship [2010] HCA 23 (“Saeed”).)
Ground two in essence arises from the same factual material relied on in ground one. The attack here is that the medical evidence attached to the affidavit of Mr Prince was of a possibly decisive nature, and in the circumstances it was constructively before the Tribunal. The failure of the Tribunal to consider this material constituted jurisdictional error. In this regard the applicant relies on WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319 (“WAFP”), SBAA v Minister for Immigration & Multicultural Affairs [2002] FCAFC 195 (“SBAA”) and NAJT v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 147 FCR 51 (“NAJT”).
Consideration
Mr Karp invites the Court to break “new ground” in finding that at least one of the grounds pressed is made out. I decline to do so because my understanding of the relevant law and its application to the circumstances asserted, and in light of the state of the evidence presented, does not permit me to do so.
I agree with Mr Reilly that there is no authority applicable to the circumstances of this case to support the proposition that jurisdictional error arises simply from circumstances where the “medical” documents were not given to the Tribunal by the Minister or the Secretary to his department.
Ground one asserts a breach of the natural justice rule, a failure by the Tribunal to provide procedural fairness at common law because it did not take into account documents, said to be at least in the control of the first respondent and/or his department, in relation to the applicant’s mental condition.
To the extent that the applicant’s case relies on a failure said to arise out of s.418(3), then that section is not a part of the exhaustive statement of the natural justice hearing rule relevantly set out in Division 4 of Part 7 of the Act. In that context it is not necessary for current purposes to therefore consider the impact of Saeed.
Even further, to the extent that the applicant’s arguments rest on the proposition that there is a duty on the department to provide the “medical” documents to the Tribunal beyond s.418(3), then again I agree with Mr Karp that Division 4 of Part 7 of the Act does not “deal with” this situation, and therefore if any breach has occurred it is to the principles of procedural fairness at general law to which regard must be had.
On either basis however the claimed failure of procedural fairness as asserted in the circumstances of this case is answered completely when regard is had to WAGP v Minister for Immigration & Multiculturalism & Indigenous Affairs [2006] FCAFC 103 (“WAGP”) per Moore, North and Mansfield JJ. A case clearly binding on me and containing circumstances relevantly similar to the current case.
In WAGP the “applicant” in that case submitted that an important document in relation to his claim for a protection visa had not been provided by the Secretary to the Tribunal. That document was said to be in the possession and control of the Secretary. The Secretary’s failure was said to have vitiated the Tribunal’s decision even though the Tribunal had no knowledge of that document.
That in effect and in the broad is the applicant’s argument in the current case.
What the Full Court said at [34] to [39] and [50] to [52] (see also [53] – [67]) provides the answer for the resolution of the current case:
“[34] There were four grounds of appeal argued by counsel for the appellant.
(a) The procedural fairness ground
[35] The first was that the Tribunal committed jurisdictional error by denying procedural fairness to the appellant by proceeding to assess the appellant’s creditworthiness without having regard to the missing document (subsequently identified) and by making the findings about his credit on the basis upon which it did.
[36] It may be accepted that, in conducting the review, the Second Tribunal was obliged to accord procedural fairness to the appellant: see e.g. Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 80 ALJR 228.
[37] However, in this matter, there is nothing to indicate that the Tribunal itself was aware of the missing document at the time of its decision or prior to its decision. The evidence is to the contrary.
[38] It was the Second Tribunal’s function, in deciding the appellant’s claim, to have regard to the evidence before it and to accord him procedural fairness, relevantly so that he was given the opportunity to be heard on the matters before the Tribunal. It is not suggested that the appellant was not given that opportunity. Indeed, counsel for the appellant acknowledged in the course of submissions that the Tribunal could not have done more than it did in terms of according the appellant procedural fairness. The ‘glitch’ (to use the word used in submissions) in the flow of information from the Secretary so that the missing document, after it had been located, was not sent to the Second Tribunal when making its decision was not something within its control or of which it was aware.
[39] In those circumstances, in our view, no failure on its part to accord procedural fairness to the appellant has been demonstrated.
…
[50] Counsel for the first respondent accepted that the Secretary had failed to comply with s 418(3) by forwarding to the Tribunal the missing document (or at least so much of it as was able to be located) prior to the Second Tribunal hearing and its decision.
[51] In our judgment, despite that failure, the Second Tribunal has not been shown to have committed jurisdictional error in reaching its decision. That is because the obligation under s 418(3) is not imposed upon the Refugee Review Tribunal, and the Secretary’s failure to comply with that obligation does not vitiate the Tribunal’s decision.
[52] In Muin each of Gaudron, Gummow and Hayne JJ addressed the issue. Their Honours indicated that the failure of the Secretary to comply with that section did not involve any failure on the part of the Tribunal so as to commit jurisdictional error. The obligation is upon the Secretary.”
The claim in WAGP was a denial of procedural fairness at common law. Given the timing of the introduction of s.422B to the Act, it did not operate to make the matters set out in Division 4 of Part 7 the exhaustive statement of the natural justice hearing rule.
At least a large part of the applicant’s argument in the current case relies on a breach or failure under s.418(3) or otherwise by the Secretary to the department in not providing the medical documents to the Tribunal. This was a central part of the applicant’s case in WAGP, at least in relation to two of the grounds considered by the Full Court.
Relevant to the current case, s.418(3) is not in Division 4. Even on the basis of accepting the applicant’s argument that Saeed is applicable to the circumstances of this case, the matter arising in the current case is not dealt with in Division 4 in any event.
There is no evidence before me that the Tribunal was aware of the existence of the medical documents, nor was this in dispute before me or even raised inferentially. As in WAGP, the applicant in the current case was also given the opportunity to be heard on the matters before the Tribunal. In fact there were three such occasions. The applicant’s migration agent was present on all those occasions.
As an aside, the question must be asked as to the role of the applicant’s migration agent. On what is before the Court, the Tribunal’s own account of the hearing remains unchallenged by any evidence to the contrary. Based on this account, therefore, the applicant’s adviser would have had every opportunity to raise any medical issues with the Tribunal on the applicant’s behalf. The parts of the Tribunal’s account to which Mr Karp referred the Court (see [47] and [68]) would have provided the prompt for this if it was there to be made.
In any event, WAGP (in the absence of authority to the contrary) provides the direction for this Court. In circumstances virtually and relevantly indistinguishable, it cannot be said there was any failure on the Tribunal’s part to accord procedural fairness to the applicant. No such failure has been demonstrated on what has been put before the Court. The mere absence of the medical documents from the Tribunal’s consideration, any alleged failure by the Secretary to put these documents before the Tribunal, even if accepted that such a failure occurred, does not reveal a failure of procedural fairness to the applicant on the part of the Tribunal.
Second, any breach by the Secretary of s.418(3), even if such a breach can be shown, does not otherwise reveal jurisdictional error on the part of the Tribunal.
Mr Karp argued that there was some ongoing objectively understood duty on the Secretary to provide relevant documents to the Tribunal and that because of s.418 the Secretary stands in a “special relationship” to the Tribunal such that the Secretary’s failure may lead the Tribunal to proceed on a false or incomplete basis.
As set out above, WAGP provides the complete answer.
I note in any event that I do not agree that s.418(3) provides for any ongoing obligation on the Secretary. While the Secretary or the department may of course provide documents to the Tribunal at any time up to the making of the decision, and indeed the Tribunal may even require the Secretary to give to it a report of any investigation it requires, including a medical examination (s.427(1)(d)) at any time during the conduct of the review, by contrast I do not see the language of s.418(3) supporting any ongoing obligation on the Secretary as it is said to arise from that section.
The compulsion on the Secretary arising in s.418(3) is to give to the Tribunal documents the Secretary considers relevant to the review, but the compulsion is limited to: “… as soon as is practicable after being notified of the application…” for review. Section 418 as a whole is quite clearly focussed on the obligations of the Registrar of the Tribunal and the Secretary to the department in the immediate period following the making of the application for review. The immediacy and extent of that period, the timing of the relevant compulsions, is said to be “as soon as practicable” (s.418(1) and (3)) and “within 10 working days” in relation to the provision of the relevant delegate’s decision which is the subject of the review (s.418(2)). None of this supports an ongoing compulsion.
In relation to the argument that s.418(3) contains some objectively ascertained compulsion on the Secretary, the plain language of s.418(3) does not support this contention. The compulsion to provide documents is plainly limited to those that are in the possession and control of the Secretary and that are: “… considered by the Secretary to be relevant to the review of the decision”. I cannot see the words: “… considered by the Secretary” as containing or allowing any test other than a subjective one.
In the current case there was no evidence put before the Court as to what consideration the Secretary or anyone acting with his authority gave to this issue. But even if the consideration was limited only to the documents actually provided, that is it excluded the medical documents, in the absence of any other evidence what is left is that no breach of s.418(3) by the Secretary is made out.
Further, on the authority of WAGP, even if it had, this does not reveal jurisdictional error on the part of the Tribunal.
This is plainly illustrated in Matete v Minister for Immigration and Citizenship [2008] FCA 1876 (“Matete”) per Buchanan J, a matter on appeal from this Court and therefore also binding now on this Court in the current circumstances.
In particular, in Matete at [18]-[19]:
“[18] The contention that the appellant was denied procedural fairness depended upon the proposition that a failure to comply with s 352(4) of the Act infected the processes of the MRT with jurisdictional error. When an application is made to the MRT the Secretary of the Department must be notified and must ensure that certain steps are taken. Section 352(4) of the Act provides:
(4) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.
As Mr Godwin of counsel, who appeared for the Minister, pointed out, an identical obligation is imposed upon the Secretary in connection with reviews by the Refugee Review Tribunal (‘the RRT’) by s 418(3) of the Act.
[19] Any suggestion that the MRT denied the appellant procedural fairness or otherwise committed jurisdictional error cannot be accepted. In WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103; (2006) 151 FCR 413 (‘WAGP’) a Full Court concluded that a failure by the RRT to take into account documents which were not put before it by the Secretary did not indicate a lack of procedural fairness on the part of the RRT. The Full Court also held that a failure by the Secretary to comply with s 418(3) of the Act did not affect the validity of a subsequent decision of the RRT. I can see no basis for distinguishing the legal position in the present case and I am, therefore, obliged to treat WAGP as binding upon me. The appellant’s arguments, to that extent, must be rejected.”
Mr Karp also argued that the relevant obligation on the Secretary to provide the medical documents to the Tribunal arose beyond the application of s.418(3). He relies on Ex parte A (see above).
As Mr Reilly submits, WAGP provides the answer to this line of attack. In WAGP the grounds asserting a breach of s.418(3) and a breach of procedural fairness at common law were argued as separate grounds and considered and disposed of separately by the Full Court. (See [48] to [67] for s.418(3) and [35] to [40] for the procedural fairness ground.)
Even in circumstances where it was accepted that the Secretary had not provided the “missing document” to the Tribunal, but in circumstances where the applicant was given the opportunity to be heard and the Tribunal had regard to all the evidence which was placed before it, no failure to accord procedural fairness is demonstrated.
Further, in the current case the applicant has not provided evidence to support the proposition that the Secretary did not provide documents that the Secretary considered were relevant to the review.
First, it is not clear that the medical documents were in the custody and control of the Secretary. Mr Karp argued that they were because the applicant was in detention and was unable to leave the detention centre. What is immediately clear in the bundle of documents annexed to the affidavit of Mr Prince is that the applicant was transported out of the VIDC to various health service locations in relation to at least some of the medical examinations and procedures that he received during the course of his detention. (See 008, 010, 014 (in relation to the STARTTS report), 045, 046, 047, 048.) In particular, the STARTTS report on which the applicant now heavily relies appears to have been derived from an examination conducted outside the VIDC.
Second, the relevant part of the Notice to Produce to the Minister which resulted in these documents being provided to the applicant’s solicitors is in the following terms:
“1. All records, whether in hardcopy or electronic form, relating to the Applicant’s state of health or any medical treatment received while he has been held in Immigration detention.”
There is nothing in this to suggest that the Notice was limited only to documents actually in the custody and possession of the Secretary and the deptartment at the relevant time.
Third, this must be seen in light of the fact that all of the documents other than the “residence assessment” at 081 to 085 of the annexure to Mr Prince’s affidavit, and the transport documents referred to above, were all prepared by private medical and health practitioners acting either in their own capacity or as part of private organisations. There is no evidence put before the Court as to the contractual relationship or otherwise between the Commonwealth and these providers, if indeed any exists or existed at the relevant time, to show the basis as to when and how such documents were provided to the Minister, the Secretary or the department. There is nothing to show they were notified or otherwise provided such that they could be said to have been in the Secretary’s “possession or control” at the relevant time. Nor even if that time were extended to include the entire period of the conduct of the review before the Tribunal.
In this and in other aspects of the applicant’s case before the Court there is an onus on the applicant to make out his case, not to rely on assumptions which are said to arise simply because the applicant was in immigration detention.
This lack of evidence can also be seen in relation to the assumption in particular (a) to ground one of the amended application that these documents were “crucial to the issues arising in the review”. In submissions this was said to be that the documents would have “gone far” to explain the applicant’s demeanour and reluctance to give evidence about the events which he claimed to have been traumatic, and as recorded by the Tribunal at [47] and [68] of its decision record.
I agree with Mr Reilly that, even if it were to be taken that the applicant suffered from depression and post traumatic stress disorder (as stated in the STARTTS report), this does not automatically lead to the conclusion that this affected the applicant’s performance before the Tribunal on any of the relevant occasions such as to provide a satisfactory explanation for his inability, as found by the Tribunal, to explain or address certain concerns it had put to him. Let alone that it affected his capacity to give evidence. This latter complaint, at the heart of ground three, was of course not pressed by the applicant.
In all, ground one is not made out.
In ground two the applicant complains that the Tribunal failed to consider crucial evidence which was constructively before it. That is the same medical information relied on in ground one.
The applicant asserts the proposition that a failure to consider vital evidence constitutes jurisdictional error. He relies on WAFP, NAJT, and SBAA.
First, as Mr Karp also acknowledged, all these cases dealt with situations where the relevant material was actually before the Tribunal.
Second, in these cases the material was “important relevant material going to a central consideration” (WAFP at [19]), or of “pivotal importance to the only real issue the Tribunal had to determine…” (SBAA at [44]). (The parts of NAJT referred to by the applicant do not provide a direct description of the relevant material.)
Third, the difficulty for the applicant is that these authorities are only of assistance if it can be said the information was constructively before the Tribunal and it was important, relevant, or vital as it went to a central or real issue in the review.
As to the first, this approach is inconsistent with WAGP and Matete, where the subject documents were not before the Tribunal, as in this case, and no jurisdictional error was found. (See for example Matete at [19]: “… procedural fairness or otherwise committed jursdicitional error”.)
Further, and in any event, I note that in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 [2003] HCA 1; 211 CLR 441; 195 ALR 1, the High Court (per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ) found no failure of procedural fairness by the Tribunal even in circumstances where the complaint was that: “… the Tribunal should have adverted to some material that had been sent to it by the Secretary to the Minister’s Department, and made a further finding of fact” (at [37] and [40]).
As Mr Reilly submitted, in the current case the subject material had not even been sent to the Tribunal.
Fourth, the applicant’s own description of this material as being: “… of a possibly decisive nature” concedes a qualification to the importance of the material, let alone its centrality to the issue or issues the Tribunal was required to determine.
As with ground one, no evidence was provided to link this material to being “crucial evidence” (as pleaded) such as to bring the authorities relied on into play.
Finally, the only basis argued by the applicant as supporting the assertion that the material was constructively before the Tribunal was to essentially rely on the relevant matters asserted in relation to ground one with which I have already dealt above.
That the material was objectively relevant to a focal issue was not supported by any evidence going to, or deemed from any analysis of, the Tribunal’s consideration. That the material was in the possession of the Minister at the relevant time was left to implication and inference at best. That the Tribunal sought all information that the Secretary considered relevant to the review meant this included the medical documents, as set out above, did not rise above an assertion. I am not persuaded, on what was put before me, that the material can be said to have been constructively before the Tribunal, let alone that it was important or pivotal to the issue to be determined by the Tribunal. In this case the credibility of key parts of the applicant’s factual account (see in this regard [14] to [16] above).
In all, therefore, ground two is not made out.
Conclusion
For the applicant to succeed one of the grounds pleaded, with the benefit of legal advice, would need to reveal at least jurisdictional error on the part of the Tribunal. I cannot see such error. The application is therefore dismissed.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 30 September 2010
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