SZQQA v Minister for Immigration
[2013] FMCA 231
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQQA v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 231 |
| MIGRATION – Whether the Refugee Review Tribunal failed to comply with s.424A of the Migration Act 1958 in relation to the content of its s.424A letter – whether the Tribunal erred in making a decision after the Applicant responded to the s.424A letter but before the expiration of the prescribed period for a response – whether the Tribunal engaged in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds. |
| Migration Act 1958 (Cth), ss.63, 65, 359A, 359B, 411, 415, 420, 424, 424A, 424B, 424C, 425, 430,441C Migration Regulations 1994 (Cth), reg.4.35 |
| ApplicantNAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 221 CLR 1; [2004] HCA 62 M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; [2006] FCA 1247 Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Citizenship v SZOCT and Another (2010) 189 FCR 577; [2010] FCAFC 159 Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61 MZXKH v Minister for Immigration and Citizenship [2007] FCA 663 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 SZEOP v Minister for Immigration and Citizenship [2007] FCA 807 SZLPO v Minister for Immigration and Citizenship (No 2) (2009) 177 FCR 29; [2009] FCAFC 60 SZLWQ v Minister for Immigration and Citizenship and Another (2008) 172 FCR 452; [2008] FCA 1406 SZMKR v Minister for Immigration & Citizenship [2010] FCA 340 SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1; [2012] FCAFC 58 Minister for Immigration and Citizenship v SZQOY and Another (2012) 206 FCR 25; [2012] FCAFC 131 |
| Applicant: | SZQQA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2043 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 23 October 2012 |
| Date of Last Submission: | 27 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 5 April 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Chia |
| Counsel for the Respondents: | Mr H P T Bevan |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
A writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the second respondent made on 17 August 2011 in Tribunal case number 1101745.
A writ in the nature of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent made on 14 February 2011.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2043 of 2011
| SZQQA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 17 August 2011 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. The Applicant sought review by application filed in this Court on 12 September 2011.
The Applicant is a citizen of India who arrived in Australia on 15 September 2010. He applied for a protection visa in October 2010. In his protection visa application he made claims for protection arising from the alleged murder of his brother in 1991. He claimed that his brother’s murder case, which was “still pending in the court of law” in India, would expose “atrocities and human rights abuses” by the Communist Party of India (Marxist) (CPI(M)) which was in power in his home state. He claimed to fear that if he returned to India he would be killed or otherwise harmed by “CPI(M) party goondas”, “state authorities” and “other fundamental groups” and “CPI(M) party hooligans and Kerala state police try to kill [him] to destroy witness” of his brother’s case. He also claimed generally to be the subject of criminal investigation because of “court cases”.
On 6 January 2011 the Applicant attended an interview with a Departmental delegate. He claimed he witnessed the 1991 incident in which his older brother was shot and killed by the police and that thereafter “he was attacked by several men on numerous occasions” because “he was unwilling to withdraw the pending court case regarding his brothers death”. He believed these men were “either members of the police or CPI(M) ‘gundas’”.
The Applicant’s evidence was that he left India in June 1999 and worked in Dubai until February 2010, but returned to India on six occasions during this period. He claimed that in 2003, 2005, 2008 and 2009 he was assaulted in India. In addition he claimed that in 2010, after an event on the anniversary of his brother’s death attended by 200 to 300 people, he was coerced by police to sign a blank piece of paper. He claimed to fear for his life.
On 1 February 2011 the Applicant wrote to the Department reiterating his claims. He advised that he was still waiting for court documents from India. He claimed that he believed his brother’s case was “still pending” but that:
It is very hard for me to produce all the court summons and notices, which is previously coming to my mother’s name and uaslly (sic) my mother collect this document by post and submitted to lawyer and my mother is not educated and she was unable to understand all these documents.
The Applicant also claimed that:
In my remembrance my mother did not receive all these court notices for the last five years and she did not attend the court hearing.
The Applicant claimed not only that the “Communist Party take political revenge against my brother case” but also that the “congress party took political advantage and economic advantage in my brother’s case”. He provided a number of documents in support of his application, including copies of his marriage certificate, baptism certificates of his wife and children and medical certificates.
On 14 February 2011 the Applicant submitted further documents, including a letter dated 8 February 2011 from a Dr A. Jahangeer (who described himself as an advocate and district notary) which addressed the “present conditions” of pending court cases, in particular a 1991 case in which the Applicant was said to be one of over 20 “accuseds” (sic). The letter advised that following a 1991 “mob attack in which a civilian [the Applicant’s brother] and a Police Officer … died”, the police had registered two cases. It was claimed that thereafter “several cases ha[d] been registered implicating innocent peoples of the locality along with the brothers and relatives of [the] deceased”, most of which had been pending since 2002.
On 14 February 2011 the Applicant was notified that a delegate of the First Respondent had refused the Applicant’s application for a protection visa. The Applicant sought review by the Tribunal on 24 February 2011.
The Applicant provided the Tribunal with a statutory declaration dated 10 May 2011 addressing issues raised by the delegate’s decision. He provided copies of press reports about the incident in which his older brother and a policeman were killed.
The Applicant attended a Tribunal hearing on 13 May 2011. A transcript of the Tribunal hearing is in evidence as an Annexure to the affidavit of Nicole Maree Mackay sworn on 29 August 2012. In addition, in evidence before the Court is a transcript of the hearing before the differently constituted Tribunal of 26 August 2009 in relation to a protection visa application made by a younger brother of the Applicant.
As had been foreshadowed in the Tribunal hearing, on 13 May 2011 the Tribunal wrote to the Applicant under s.424A of the Migration Act 1958 (Cth) (the Act) inviting him to comment on or respond to certain information by 30 May 2011. The Applicant provided a handwritten response on 30 May 2011, sought and was given additional time to respond and provided a further letter with supporting documentation on 20 June 2011.
On 4 August 2011 the Tribunal wrote again to the Applicant. It asked him to disregard the letter of 13 May 2011 and gave him a further invitation to comment on or respond to exactly the same information. This was done on the basis that the date for response specified in the letter of 13 May 2011 did not reflect the correct prescribed period.
In essence, the information put to the Applicant related to inconsistencies between his written claims, oral evidence and supporting documents as discussed further below.
In his response of 15 August 2011 the Applicant sought to rely on his earlier responses. He also provided what was said to be a copy of a court order from an Indian Magistrates Court dated 28 March 2011 in relation to a petition against the police brought by a person with the same surname as the Applicant seeking details of pending cases in which people (including the Applicant) had been accused in relation to the 1991 mob attack. The document stated that on 28 March 2010 (sic) the court decided that it was “not allowed to entertain” the petition “[d]ue to various security reasons”.
The Tribunal Decision
On 17 August 2011 the Tribunal affirmed the decision of the delegate not to grant the Applicant a protection visa. In its reasons for decision the Tribunal described in detail the claims made by the Applicant in connection with his protection visa application, his written and oral claims to the Department, the documentary evidence he provided and his written and oral evidence to the Tribunal, including his response to the s.424A letters.
In its findings and reasons the Tribunal characterised the Applicant’s claims as based on the Refugee Convention grounds of political opinion and membership of a particular social group. It summarised his claim as a claim that his older brother was shot by the police during violent clashes involving the (Communist party-led) Left Democratic Front and the (Congress-led) United Democratic Front in Kerala in 1991 and that he witnessed the entire incident. It recorded that he claimed that his “family subsequently registered a ‘murder case’ before the courts in Kerala that could potentially expose human rights abuses and atrocities committed by the police and the CPI(M)”. The Tribunal also recorded that the Applicant claimed that as a key witness to the incident he had been “assaulted, threatened, and forced to sign a blank piece of paper by the police”, that “[h]e and his brothers ha[d] been implicated in a false criminal case”, and that he feared he would be “killed by CPI(M) ‘goondas’ or arrested and imprisoned by the authorities”.
However the Tribunal did not find the Applicant to be a reliable, credible and truthful witness. It had regard to inconsistencies between the evidence he gave to the Department and to the Tribunal, inconsistencies between his evidence and evidence from other sources, the implausibility of significant aspects of his claims and other reasons which it detailed.
First, the Tribunal set out its concerns about inconsistencies between the Applicant’s evidence and that of his younger brother to the Tribunal (differently constituted) in relation to the Applicant’s location and role at the time his older brother was killed. It recorded that in his witness statement, interview with the delegate and at the Tribunal hearing, the Applicant had claimed that the police and the CPI(M) “want[ed] to eliminate him as a witness in his brother’s murder case”. In his interview and at the Tribunal hearing the Applicant had “also claimed that he was the only member of his family who had witnessed the murder of his [older] brother and had come to his aid after he was shot”. However the Tribunal had regard to the fact that in his oral evidence to the Tribunal in 2009 the Applicant’s younger brother had stated that he “was the eyewitness to his brother’s case and that he was being pursued by the Kerala police and the CPI(M) for that reason”. The Tribunal observed that the younger brother had “made no mention of any other member of the family being present at that time to witness the incident” or of any other family member being pursued by the authorities. It also had regard to the fact that the younger brother had provided a letter from a parish priest, Father Joseph Maria, in support of his review application. That letter was said to confirm that the younger brother was the eyewitness to the murder of his brother. The Tribunal stated that it did not contain any other information to indicate “even tentatively, that any other member of the family had witnessed the shooting”.
The Tribunal had regard to the fact that the Applicant had “not specifically address[ed] the inconsistencies between his and his younger brother’s evidence in his response to the s.424A letter”, although at the Tribunal hearing he had stated that his younger brother “may have also been watching the [1991] incident”. The Tribunal found that this explanation was unsatisfactory. It was of the view that if the Applicant’s younger brother had also witnessed the incident and if he had been pursued by the authorities for nearly two decades (culminating in his application for protection on that basis), it was “highly unlikely that the applicant would have been unaware of his [younger brother’s] circumstances”. Alternatively, the Tribunal was of the view that “if the applicant had witnessed the incident causing him numerous serious difficulties as claimed, his younger brother would not have omitted any references to [the Applicant’s] role or what he claim[ed] to have witnessed”.
The Tribunal addressed the Applicant’s evidence about Fr Joseph Maria’s letter of support for his younger brother. While the Applicant claimed that he had also submitted a letter from Fr Joseph Maria, there was no such letter before the Tribunal. The Tribunal found, in any event, that “if the Applicant was the only eyewitness to the incident it [wa]s unclear why Father Maria had given evidence [for the younger brother] expressly stating that [the younger brother] was the witness”.
The Tribunal was of the view that the information provided to the Tribunal by the Applicant’s younger brother, including the information in the priest’s letter, “cas[t] serious doubt on the applicant’s key claim that he was the only eyewitness to [his older brother’s] murder and that he did not know if any other member of the family had witnessed the incident”. The Tribunal did “not accept these claims or the claim that he [wa]s wanted or was targeted by the authorities, CPI(M), CPI(M) ‘goondas’ or anyone because they wanted or want to eliminate him as a witness”.
Secondly, the Tribunal was of the view that the Applicant had provided “inconsistent and unconvincing evidence in relation to the nature of the [Kerala] police and the authorities’ interest in him”. It had regard to the fact that while the letter from Dr Jahangeer referred to cases allegedly pending from 1991, 2002 and 2006 involving the Applicant and other “Accuseds”, “[n]either in his application for a protection visa nor in his interview with the delegate [had] the applicant made any mention of having been named as an accused or having been the subject of a police search nor a court case brought about by the police”.
The Tribunal considered the Applicant’s explanation at the hearing and in response to the s.424A letter to the effect that he only realised he was named as an accused in relation to the death of the policeman killed in the 1991 clashes after he received Dr Jahangeer’s letter. However the Tribunal found that the Applicant’s explanations were unsatisfactory. It was of the view that if, as the “court order” stated, “a number of cases were filed against the applicant in 1991, 2002 and 2006, with most cases as ‘long pending warrants’ since 2002 and [if] the police had continuously searched for the accused, meaning the applicant and his brothers, in connection with these matters, it [wa]s highly unlikely that the applicant had been left completely unaware of any cases against him over the course of a number of years”. The Tribunal observed that, apart from referring to the “sensitivity” of his older brother’s case, the Applicant had provided no reason for such secrecy that over two decades neither he nor any other member of his family had become aware of cases in which he was an “accused”.
The Tribunal observed that the document described as a “court order” dated 28 March 2011 “provid[ed] no information as to what security reasons had prevented the court from issuing details of the pending cases” in relation to which long pending warrants had already been issued. The Tribunal found that if such warrants had been issued it was highly unlikely that the Applicant was not aware of these warrants or the cases against him before February 2011. It also found that if no other documents, petitions or official information regarding the pending warrants and the claimed cases had ever been released, it was “odd” that a decision had been made to release the court order dated 28 March 2011. The Tribunal also expressed concern about the fact that there was no explanation for the Applicant’s delay in producing the court order, other than his claim that his lawyer did not give it to him at the time. In addition, the Tribunal observed that it was “odd” that the court order purportedly issued and signed by a named magistrate featured words and sentences containing particular “grammatical and spelling errors, identical to those featured in Mr Jahangeer’s letter of 8 February 2011”. The Tribunal was of the view that “these features cast doubt on the genuineness of both documents”.
Furthermore, the Tribunal was of the view that the Applicant had been unable to establish persuasively the high degree of sensitivity he claimed surrounded his brother’s murder case. It observed that details of the 1991 incident had been published in a national newspaper and that information about the incident underlying the case was publicly available. In view of the available information in relation to the incident, the Tribunal found it “highly unlikely that the matter was treated with such a degree of secrecy or sensitivity that the applicant and members of his family never came into possession of a single document as evidence that a case was lodged in relation to [his brother’s] death and/or that the case [wa]s still pending after 20 years”. The Tribunal found that the Applicant’s evidence in this regard was unconvincing.
The Tribunal addressed the Applicant’s explanation that inconsistencies in his evidence were because of his “memory problems” and his claim that he was “undergoing treatment”. The Tribunal considered letters from a general practitioner stating that the Applicant was suffering from depression, anxiety, and “memory problem”. However, it had regard to the fact that there was no further information or detail about the Applicant’s condition or whether and how any diagnosis was made or “how his state of depression and anxiety may have resulted in the provision of inconsistent information over the course of many months”. It was also said to be “unclear how memory problems relat[ed] to the particular problems identified in the applicant’s evidence with regard to the claimed charges against him”. The Tribunal also had regard to the fact that “while the applicant [had] provided contradictory evidence, he [had] not appear[ed] to be incoherent or unable to respond to the Tribunal’s questions in a clear manner”. The Tribunal was not satisfied that the medical evidence addressed its concerns or explained the identified problems in the Applicant’s evidence. Rather, the Tribunal was of the view that the Applicant’s evidence in relation to the cases and/or the charges said to be pending against him was fabricated. It did not accept that the Applicant had been charged with any offences or that any cases were pending against him or his brothers.
Thirdly, the Tribunal found that “the applicant’s evidence in relation to the lawyer representing him and/or his brother’s case in India was inconsistent and unconvincing”. The Tribunal stated:
In his submission of 1 February 2011, the applicant claimed that he was awaiting court documents relating to his brother’s case, which is pending. He claimed that it would be very hard for him to produce all the court documents as these documents are usually received by his uneducated mother who forwards them to the lawyer. In his interview with the delegate he stated that he was unable to obtain any documents relating to the case because these documents were held by the Congress, which was not prepared to release them. In his interview with the delegate he also stated that the lawyer assigned to his brother’s case is a Congress lawyer by the name of Jahangeer who had said that it would be difficult to reopen the case. In contrast, at the hearing he claimed that he was under the impression that Mr Jahangeer was a Congress lawyer, but he has found out that he is not. Rather, he was a former teacher of his wife and his brother and had taken an interest in the case because he is a former teacher of the applicant’s wife and the applicant’s brother. He was asked why he had told the delegate that the family were assigned a Congress lawyer. He said when he asked his wife why they were unable to obtain the documents his wife told him that the case was a sensitive issue. They have worked and suffered for the party and the party has now turned its back on them. In his response to the Tribunal’s s.424A, the applicant essentially repeated his evidence at the hearing, claiming that until before he received the letter from Mr Jahangeer, he thought this person was a ‘party advocate’ , because he also handled ‘party cases’. After his wife ‘sought about’ his position, she ‘realised’ that he was her and the applicant’s brother’s teacher and she told the applicant that Mr Jahangeer was not a ‘party advocate’. The Tribunal finds the Applicant’s explanations unconvincing. If Mr Jahangeer was an old acquaintance of his wife and had taken an interest in the case, it is odd that the applicant not only was unaware of this, but also harboured the assumption that Mr Jahangeer was a Congress lawyer. Alternatively, it is unclear on what basis the applicant had held the strong belief that Mr Jahangeer was a Congress lawyer, why he had persisted at the interview that Congress, and by extension Mr Jahangeer, were unwilling to release any documents in relation to his brother’s case, and why the nature of his relationship to the family was unknown to him.
The Tribunal had regard to the fact that in response to the s.424A letter the Applicant had claimed, “for the first time that he had experienced communication difficulties with his representative as they [spoke] different languages” and that in the submission of 1 February 2011 “his representative had misrepresented his claims … in relation to the manner in which court documents had been received and handled”. However the Tribunal observed that the “applicant had never previously raised any communication problems”. It found that it did “not appear that communication difficulties had resulted in misrepresentation of any other aspect of the applicant’s evidence”.
In addition, the Tribunal had regard to the fact that “[t]he applicant’s evidence in relation to who is in possession of the documents in relation to [his deceased brother’s] case was also inconsistent with [his younger brother’s] evidence to the Tribunal, differently constituted, to the effect that the documents were in possession of the police”. The Tribunal found that this inconsistency had not been specifically addressed by the Applicant in his response to the s.424A letter.
Based on these concerns, the Tribunal was “of the view that the applicant’s evidence in relation to court documents and the nature of the legal representation he and his family ha[d] received [wa]s a fabrication”. It found that his explanations were “piecemeal attempts at patching up significant gaps in his evidence”. It did not accept the Applicant’s evidence in this regard.
Fourthly, the Tribunal found that the Applicant had “provided contradictory and unconvincing evidence in relation [to] his political activities and the Congress [Party’s] attitude towards his (sic), his family and his brother’s case”. The Tribunal set out in detail inconsistencies in the Applicant’s evidence to the Department and at the Tribunal hearing about his involvement in political activities and with the Congress Party (in particular in relation to whether he organised meetings and communicated party instructions or merely participated in meetings and provided financial assistance). The Tribunal found it apparent that at the Tribunal hearing the Applicant “had added to and expanded upon his political activities in India”.
The Tribunal had regard to the Applicant’s claim in response to the s.424A letter that, “despite experiencing difficulties, he had spent most of his time for party activities”, but found that his claim to be an active and dedicated member of Congress sat “at odds with [his] claims throughout the process that the family had been failed by Congress, the Congress took political advantage of his brother’s death” and “had done nothing to help progressing the case or defending the family”, and that instead it had “misappropriated funds raised in memory of his brother, entered some form of alliance with the CPI(M) at the national level”, collaborated with the CPI(M) to jeopardise and stop the case from progressing, told him “not to enter a conflict with the CPI(M)” and was “now against his family and want[ed] him to leave the country”.
The Tribunal found it “difficult to accept that if the applicant had felt deeply betrayed by the Congress [Party] and considered the party to have tarnished and turned against his family”, he would nonetheless have “devot[ed] most of his time to party activities”. While it acknowledged the Applicant’s oral evidence that he did not want to go against or fight the Congress Party, the Tribunal was of the view that in such circumstances the Applicant “did not have to devote most of his time to party activities and providing Congress with financial assistance”.
Finally, the Tribunal found that, as it had put to the Applicant at the hearing, he had not provided a persuasive explanation as to why the Congress Party did not want his brother’s case to progress. It noted that his family was said to support the Congress Party, that he claimed to have devoted most of his life to the party and that the party was likely to benefit electorally from the case if, as the Applicant claimed, it was likely to “expose” the CPI(M). The Tribunal found that the Applicant had not offered any convincing reason why the Congress Party had taken a hostile or uncooperative attitude towards him and/or his brother’s murder case.
The Tribunal found that the Applicant’s evidence regarding his political activities and the Congress Party’s attitude towards him, his family, and his deceased brother’s case was unconvincing. It did not accept his evidence in this regard.
For all of these reasons, the Tribunal did not find the Applicant to be a credible, truthful and reliable witness. It found that “[t]he totality of his evidence show[ed] a propensity to fabricate, shift, and tailor evidence in a manner which achieved [the Applicant’s] own purpose”. The Tribunal was of the view that the Applicant had “manufactured his claims and concocted evidence to achieve an immigration outcome”. It rejected the Applicant’s claims that the deficiencies in his evidence were due to his mental health. It was “not satisfied that the applicant’s state of health [had] affected his ability to give evidence in any way that could satisfactorily explain, wholly or partly, the width and breadth of the Tribunal’s concerns regarding his credibility”.
The Tribunal then stated that it had considered the documents and photographs submitted by the Applicant in support of his case. It found that for the reasons it had outlined and “given the fundamental lack of credibility within [the Applicant’s] evidence” it did not give any weight to any of the documents the Applicant had provided in support of his claims.
The Tribunal was prepared to accept that the Applicant’s older brother had been shot dead by the police during violent political clashes in 1991 and that this tragedy had deeply affected the Applicant and his family. However it did not accept any of the Applicant’s other claims, being of the view that he had relied on his brother’s death to achieve an immigration outcome. Thus, the Tribunal did not accept that the Applicant was an eyewitness to the shooting death of his brother, that a case in relation to his brother was ever lodged or was still pending in the courts in Kerala, or that the Applicant’s brother’s death was regarded as a sensitive matter, politically or otherwise. Nor did the Tribunal accept that the Applicant was ever targeted, attacked, assaulted, injured, threatened, or otherwise harmed by anyone in connection with his older brother’s death or his claimed role in that incident. It did “not accept that he was ever charged with any offence, that cases ha[d] been filed or [we]re pending against him, that he ha[d] been investigated in the past or that the police were or are looking for him”. The Tribunal did not accept that the Applicant “was arrested, detained, mistreated, or forced to sign a blank piece of paper in 2010”, that he had been “subjected to interrogation and physical attacks by the police in the past” or “ever targeted by CPI(M) officials, members and supporters”.
Nor did the Tribunal accept that the Applicant was an active member or supporter of any political party in India or that he was regarded adversely by any political party, including the CPI(M) and the Congress Party. It did not accept he would be targeted or killed by “political revenge party groups, Hindu fanatical groups or the authorities”, or that he faced “political pressure and life threatening problems in India”.
In view of the Tribunal’s findings in relation to the Applicant’s political profile and activities and having regard to the particular circumstances which led to his older brother’s death in 1991, the Tribunal did not accept that those circumstances gave rise to a real chance the Applicant would face persecution for a Convention reason, now or in the reasonably foreseeable future. It was not satisfied that his fear of persecution was well-founded and found that he was not a refugee.
This application
There are four grounds in the further amended application.
As explained below, the Applicant ultimately raised a considerable number of issues. For the reasons given I have found jurisdictional error in one respect such as to warrant the relief sought by the Applicant. However, I have also considered all the other bases on which jurisdictional error was alleged.
It is convenient to consider first the two grounds that relate to the content of the Tribunal’s s.424A letters. These grounds were addressed together in submissions.
The content of the s.424A letters
Grounds two and three in the further amended application were addressed together in submissions. They are as follows:
The Tribunal fell into jurisdictional error in not complying with the requirement under paragraph 424A (1)(a) of the Act to give “clear particulars” of the information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that was under review.
The Tribunal fell into jurisdictional error in not complying with the requirement in paragraph 424A(1)(b) of the Act that it ensure as far as is reasonably practicable the applicant understood the relevance of information, the particulars of which it purported to give the applicant in its letters dated 13 May 2011 and 4 August 2011.
In light of the lack of specificity in these grounds and matters raised at the hearing the parties were given the opportunity to make post-hearing submissions to clarify and address the precise basis on which it was contended that the Tribunal had failed to comply with s.424A of the Act. I have had regard to all the submissions.
Section 424A of the Migration Act is relevantly as follows:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
As set out above, the Tribunal wrote to the Applicant under s.424A of the Act on 13 May 2011 and the Applicant responded on 30 May 2011 and on 20 June 2011. However, on 4 August 2011 the Tribunal again wrote to the Applicant by letter delivered to him by hand, advising that he should disregard the letter of 13 May 2011 (which did not give him the time for response required under the Act) and putting to him the identical information and explanation of its relevance that had been provided in the earlier letter and a further opportunity to respond or give comments in writing by 18 August 2011.
The s.424A letter contains six numbered paragraphs (referred to below as Particulars 1 to 6) said to consist of particulars of information the Tribunal considered would, subject to the Applicant’s comments or response, be the reason or part of the reason for affirming the decision under review.
As indicated, grounds two and three in the further amended application are generally expressed and do not particularise the manner or extent to which it is contended that the Tribunal failed to give clear particulars or failed to ensure, as far as reasonably practicable, that the Applicant understood the relevance of information. In pre-hearing written submissions, counsel for the Applicant appeared to concede that inconsistencies between what the Applicant had said at the Tribunal hearing and what he said in other written statements submitted to the Tribunal or to the Department would fall within the exception to the s.424A(1) obligation in paragraphs 424A(3)(b) and (ba) of the Act, but pointed out that such exceptions did not extend to information provided orally by the Applicant to the Department. It was submitted that the information in Particulars 1, 2, 4 and 5 in the s.424A letter was, in whole or in part, required to be given to the Applicant under s.424A(1) of the Act. However the only aspects of the s.424A letter addressed in any detail in the Applicant’s pre-hearing submissions were Particulars 2 and 4 of the letter.
In pre-hearing written submissions in response, the First Respondent referred to the absence of particulars in the further amended application, but addressed Particulars 2 and 4 in the s.424A letter as these had been specifically referred to in the Applicant’s pre-hearing submissions.
However at the hearing, when asked about the extent of the matters intended to be raised in grounds two and three in the further amended application, counsel for the Applicant took issue with the whole of the invitation to comment on or respond to information. He sought to “correct” his earlier apparent concession that the information in Particular 3 of the letter was not subject to the obligation in s.424A(1) of the Act. At the same time, the Applicant conceded that, contrary to the earlier submission, paragraphs 1 and 5 of the s.424A letter did not disclose information that had to be given to the Applicant under s.424A(1) of the Act. There was no suggestion at any time that the information in Particular 6 (in relation to a medical certificate provided by the Applicant in connection with his protection visa application) had to be put to the Applicant for comment, as it was accepted that it was within the s.424A(3)(ba) exception.
It was nonetheless said that the Court should have regard generally to Particulars 1, 5 and 6 on the basis that it was necessary to read the s.424A letter as a whole in determining whether the Tribunal had failed to give “clear particulars”. The Applicant submitted that the Court should look at the objective effect of the invitation “read in its entirety” (see SZMTJ v Minister for Immigration and Citizenship and Another (No 2) (2009) 109 ALD 242; [2009] FCA 486 at [48] per Flick J).
I have considered all the issues that were ultimately raised by the Applicant in relation to the whole of the Tribunal’s s.424A letter.
Particular 1
Particular 1 in the letters of both 13 May 2011 and 4 August 2011 is as follows:
In your application for a protection visa, you claim that your brother’s ‘murder case’ is pending before the courts in Kerala. You claimed that the case will expose human rights abuses and atrocities committed by the State’s ruling party, the Communist Party of India (Marxist) (CPI(M)). If the court were to rule in your family’s favour, CPI(M) will take revenge against you and your family. You claim that if you were to return to India, you will be killed by CPI(M) ‘goondas’ or arrested and imprisoned by the authorities.
In a written statement submitted to the Department of Immigration and Citizenship (the Department) on 1 February 2011, you claimed that your family holds a memorial service for your brother every year and they use the occasion to ‘expose all the political parties’ and that the CPI(M) will take revenge because of your brother’s case.
At your interview with the Department, you claimed that whenever you went to the court you were told that the court would be unable to open the case because the CPI(M) is in power and that the accusations made in the case are not good for the party and the government. While you claim that you were not assisted by the Indian National Congress (the Congress) in progressing your brother’s case, you stated that the Congress had assigned a lawyer to your case and wanted to pursue and settle the matter. At no point you claimed that you were told by Congress not to enter into a conflict with the CPI(M) and that the Congress is now against your family. These claims, however, were made for the first time in your submission in support of your application for review, dated 10 May 2011, and at the Tribunal hearing held on 13 May 2011.
The information you provided to the Department orally is relevant because, on the basis of shifts and changes in your evidence as presented at various stages to the Department and to the Tribunal, including the inconsistencies between your evidence to the Department and your evidence at the review stage, the Tribunal may disbelieve your claims and find that you have not been truthful and/or credible.
In essence, Particular 1 put to the Applicant the particulars of evidence he had provided at the Departmental interview about his older brother’s murder case and the attitude of the Congress Party and the CPI(M) and inconsistencies between that evidence and his written claims made to the Department and the Tribunal as well as his oral claims at the Tribunal hearing.
As counsel for the Applicant acknowledged, the only aspect of this evidence not clearly within the exceptions in s.424A(3) of the Act would be the oral evidence given at the Departmental interview. Moreover, counsel for the Applicant accepted that not all of the information the Tribunal put to the Applicant in the s.424A letter was in fact “information” as that term has been interpreted in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. As their Honours stated in that case the concept of “information” refers to the “existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence” or the Tribunal’s disbelief (at [18]). Counsel for the Applicant acknowledged that this would suggest that insofar as it related to inconsistencies in the Applicant’s evidence Particular 1 did not disclose information that had to be put to the Applicant under s.424A(1) of the Act. His submissions thereafter proceeded on this basis.
Despite this concession, the Applicant submitted that it did not follow that “deficiencies” in Particular 1 (or, as discussed below, Particulars 5 and 6) of the s.424A letter or any other deficiency relating to the s.424A letter “read as a whole” could not “contribute” to a conclusion that jurisdictional error had been committed due to a failure to give “clear particulars”. It was submitted that there was “a general lack of clarity” in the particulars of information (including information not subject to the s.424A(1) obligation) in the s.424A letter.
I note first that insofar as the Applicant conceded that the matters in Particular 1 did not constitute “information” that had to be put to the Applicant for comment under s.424A(1) of the Act, as pointed out by French CJ and Kiefel J in Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1 at [9] it is open to the Tribunal in the exercise of its discretion to invite an Applicant “to make supplementary submissions in relation to apparent inconsistencies, contradictions or weaknesses in his other case which have been identified by the Tribunal”. However the Tribunal does not fall into jurisdictional error merely by putting additional matters to the Applicant beyond those subject to the s.424A(1) obligation.
The Applicant submitted that Particular 1 lacked clarity in that it was not clear what information was actually being put to the Applicant for comment. It was contended that it was not until the second last sentence of the third paragraph that what was in issue emerged.
As Flick J stated in SZMTJ v Minister for Immigration and Citizenship and Another (No 2), the Court should look at the objective effect of a s.424A invitation read in its entirety. However what is required under s.424A(1)(a) of the Act is that the Tribunal give “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”.
Contrary to the Applicant’s contention, the Tribunal’s recital of aspects of the Applicant’s evidence at various times about his older brother’s court case and the attitude of political parties and its subsequent explanation of the relevance of shifts and changes and inconsistencies in the Applicant’s evidence is not so lacking in clarity as to in some way “affect” the clarity of the provision of particulars of information within s.424A(1) of the Act in other parts of the s.424A letter. Insofar as the information in Particular 1 was relevant to an adverse credibility finding, that was clearly set out. Reading the s.424A letter as a whole there could be no uncertainty that this part of the letter was inviting the Applicant to respond to the issues raised in Particular 1 (about shifts and changes and inconsistencies in his evidence) because such matters (together with other matters raised, some of which were subject to the s.424A(1) obligation) could lead the Tribunal to disbelieve the Applicant’s claims and hence affirm the delegate’s decision (SZMTJ at [50]).
Particular 1 and the s.424A letter in its entirety made it clear that the Applicant was invited to comment on the matters set out because the Tribunal was questioning his credibility. There was no lack of clarity in Particular 1 such as to give rise to uncertainty as to what was being sought in the letter as a whole (SZMTJ at [53]).
There may be circumstances in which a s.424A letter read in its entirety does not give clear particulars. This is not such a case. The letter did not simply set out a list of particulars of information and then a general concluding statement as to the relevance of all the information in such a way that a lack of clarity in matters that did not constitute information within s.424A(1) could be said to contribute to a failure to give clear particulars of information required to be put to the Applicant under s.424A(1). Rather, in each paragraph the Tribunal sought to provide a separate explanation in relation to the “particulars” of the information in question.
Jurisdictional error in the manner contended for in ground two or ground three is not established, or contributed to, by the manner in which Particular 1 is expressed in the s.424A letter.
Particular 2
Particular 2 in both s.424A letters was as follows:
In your statement of 1 February 2011 you claimed that your life is at risk because CPI(M) and Kerala Police want to eliminate you as a witness in your brother’s murder case. In your interview with the delegate and at the hearing before the Tribunal, you made similar claims. Both at your interview and at the hearing, you also claimed that you were the only member of your family who had witnessed the murder of your brother and had come to his aid after he was shot.
Your younger brother […] arrived in Australia on 6 April 2009 and applied for a protection visa. In his oral evidence to the Tribunal, differently constituted, he stated that he was the eyewitness to your brother’s case and that he was being pursued by the Kerala Police and CPI(M) for that reason. Mr [younger brother] made no mention of any other member of the family being present at that time to witness the incident or to have been pursued by the authorities.
Mr [younger brother] provided a letter from Father Joseph Maria, parish priest, in support of his application for review in the letter, which was dated 12 August 2009. Father Maria confirmed that Mr [younger brother] was the eye witness to the murder of your brother. There was no other information in the letter to indicate, even tentatively, that any other member of the family had witnessed the shooting.
The information provided to the Tribunal by your brother in relation to his case, including the information contained in Father Maria’s letter, is relevant because on the basis of this information, the Tribunal may disbelieve your claims to the effect that you were the only eyewitness to [deceased brother’s] murder and that you did not know if any other member of your family had witnessed the incident. This information and your oral evidence to the Department are also relevant because they may lead the Tribunal to disbelieve your claims in relation to being wanted or targeted by the authorities, CPI(M), CPI(M) ‘goondas’ or anyone else and find that you have not been truthful and/or credible.
The Applicant submitted that Particular 2 in the s.424A letter failed to give him “clear particulars” of the evidence of his younger brother to the Tribunal (differently constituted) or of the information in the letter of support for his younger brother from Fr Joseph Maria. This contention was put on several bases.
First it was submitted that these documents were evidence that the Applicant had not been “the witness” to the death of his deceased brother and therefore constituted information specifically about the Applicant or another person (his younger brother or his deceased brother) not within the exception in s.424A(3)(a) of the Act.
The Applicant contended that the “information” for the purposes of s.424A(1) was “the text” of the relevant documents themselves (see SZBYR at [18]). Initially the Applicant submitted that this required disclosure of the text of the evidentiary material itself, consisting of a copy of the letter from Fr Joseph Maria and the actual words said by the younger brother at his Tribunal hearing together with a copy of the recording of that hearing. It was subsequently conceded that disclosure of so much of the substance of that evidence as would enable the Applicant to have provided a meaningful comment or response would suffice.
The Applicant subsequently acknowledged that the obligation under s.424A was not an obligation to provide documents per se (see SZBYR at [18]), but rather an obligation to give particulars of information in such a way as to allow the Applicant to meet the adverse consequences of that information (Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352; [2000] FCA 908 at [59] – [60]). However it was pointed out that what was required depended on the nature of the information and may or may not require production of actual documentary material in a particular case.
It was submitted that it was necessary for the Tribunal to put to the Applicant a copy of the letter from Fr Joseph Maria or at least the actual words used by the priest. This submission was put on the basis that the authenticity of the letter from Fr Joseph Maria may have been in issue. Hence it was said that the Applicant had to be provided with a copy of that letter because it may have been open to him to say that it was not authentic.
At the time of the hearing the letter from Fr Joseph Maria was not in evidence before the Court. It was in that context that counsel for the Applicant contended that had the Applicant been provided with a copy of Fr Joseph Maria’s letter, he may have had an issue with the authenticity of the document. However the possibility was raised that after the hearing the Applicant may seek to obtain a copy of Fr Joseph Maria’s letter from the Minister or the Tribunal and to address it in post-hearing written submissions.
Towards the end of the hearing, counsel for the Applicant proposed that orders should be made for the production by the Minister of Fr Joseph Maria’s letter. After some discussion I declined to order production but gave the parties liberty to apply. The timetable for submissions allowed time for production of the letter from Fr Joseph Maria or for any other relevant issues to be raised by the parties.
In post-hearing submissions the Minister sought to tender a copy of Fr Joseph Maria’s letter of support for the younger brother dated 12 August 2009 in support of the proposition that the Tribunal’s statement as to the effect of that letter was correct and sufficient to meet its obligation under s.424A of the Act.
In written submissions in reply the Applicant objected to the tender of Fr Joseph Maria’s letter on the basis of the timing of the tender and relevance. It was submitted that even if this letter was the letter from Fr Joseph Maria referred to by the Tribunal, the only issue raised by the Applicant in his Further Amended Application and submissions was the fact that it had not been provided to the Applicant for comment or response and not whether the 4 August 2011 letter misrepresented its content.
However, having regard to the manner in which the issues in relation to this letter were raised, the Applicant’s submissions at various stages and the opportunity that he had to address the content of that letter, I am of the view that the timing of the tender is not such that the objection should be upheld. The letter is relevant. As the Applicant quite properly conceded, what is required under s.424A depends on the nature of the information and may or may not involve production of the actual documentary material. Hence the content of the letter itself is relevant in determining the scope of the Tribunal’s obligation in this respect.
In the letter Fr Joseph Maria stated that he was the local parish priest at the time of the murdered brother’s death and the revolt in Kerala, that he was “closely involved in that event” and that “he was present in the spot where the police opened fire on the crowd” and the brother of the younger brother was shot dead. In that context the priest stated that the younger brother “is the eye witness of the sad event”.
As the Tribunal correctly stated in Particular 2 of the s.424A letter of 4 August 2011, there was no other information in Fr Joseph Maria’s letter to indicate that any other member of the family had witnessed the shooting.
The Applicant also maintained the contention that in this case the Tribunal had to put a copy of the text of part of the oral evidence of the younger brother to the Tribunal (differently constituted) to the Applicant for comment. It was submitted that in this case the actual words the younger brother had said at his Tribunal hearing in 2009 had to be put to the Applicant to meet the requirements of s.424A of the Act and also that the Applicant should have been provided with a copy of the complete recording of his younger brother’s hearing and not simply had put to him that there were inconsistencies in their evidence.
Relevantly, the transcript of the younger brother’s Tribunal hearing recorded an exchange between the Tribunal and the Applicant’s younger brother in relation to the murdered brother’s death (at Transcript p.14). The exchange in question occurred after the younger brother claimed to regard the CPI(M) as “dangerous for” him. It was as follows:
[TRIBUNAL]: Right, okay, why do you think the CP(M) party wishes you harm?
[APPLICANT’S YOUNGER BROTHER]: It is because I had seen the scene of my brother’s death when they shot and when he died. I am a witness. (Emphasis added)
The Applicant submitted that Particular 2 in the s.424A letter did not put clear particulars of this information that accurately represented what the younger brother had said at his Tribunal hearing because the younger brother had never said that he was “the eye witness” but only that he was “a witness”. It was contended that it could not be inferred that the younger brother was claiming to be the sole witness to his brother’s death.
In the s.424A letter the Tribunal stated that the Applicant’s younger brother had stated that “he” was “the” eyewitness to his brother’s case and that he was being pursued for that reason. It was submitted that the Tribunal had not provided clear particulars of the younger brother’s evidence, given its use of the definite article “the” rather than the indefinite article “a”.
Counsel for the Applicant suggested that the fact that the Minister had referred to the transcript of what was said by the younger brother and also the context in which it was said in an attempt to demonstrate the accuracy of the particulars of the information in Particular 2 of the s.424A letter supported the proposition that in order to afford the Applicant the codified form of procedural fairness required by s.424A and to give him such particulars of information as would allow him the opportunity to meet the adverse consequences of that information (see NADR at [60]), the Tribunal should have put to him an accurate record of what his younger brother had in fact said.
It was also submitted that the fact that the Tribunal put to the Applicant the further assertion that his younger brother had made no mention of any other member of the family being present to witness the incident did not render the earlier misstatement of the younger brother’s evidence accurate. The Applicant submitted that Particular 2 referred to inconsistencies in relation to two aspects of the younger brother’s evidence, (one aspect being that the younger brother had said that he was the sole witness and the other being that the younger brother had not said that any other member of the family was present), but that the Tribunal had not put clear particulars of both aspects of the alleged inconsistency to him. It was contended that the particulars were given in a manner that was confusing and unclear and also that Particular 2 contained a significant amount of irrelevant content.
The First Respondent submitted that the Tribunal met its obligation to give clear particulars of information provided to the Tribunal by the younger brother, including the information in the priest’s letter.
It is not in dispute that under s.424A(1)(a) of the Act information must be provided with “sufficient specificity” (see MZXKH v Minister for Immigration and Citizenship [2007] FCA 663 at [20] and [27]). As Flick J pointed out in SZMTJ (at [45]), “[l]anguage which fails to identify information with “sufficient specificity” and which fails to “unambiguously” set forth information may fail to comply” with the requirement in s.424A(1)(a) to provide “clear particulars” of information.
Relevantly, his Honour also stated (at [52]):
Although s 424A(1) imposes the trinity of requirements set forth in paragraphs (a), (b) and (c), it is not considered that compliance with s 424A(1) is necessarily to be approached by considering each of the three requirements as though it were divorced from the rest. The greater the degree of clarity in the “particulars of any information” provided, the less may be the exposition needed to convey the relevance of that information to the review being undertaken; the greater the uncertainty in the information being provided, the greater may be the need to explain why it may be relevant. Section 424A(1)(b) remains a requirement to be satisfied; but the steps to be undertaken to discharge that requirement may well depend upon the clarity with which the information has been identified and indeed the character of that information.
There is, however, no general requirement that the Tribunal put to an Applicant copies of documents or the actual text of information within s.424A(1). The obligation under s.424A(1)(a) of the Act is to put to the Applicant “clear particulars” of such information, not an obligation to produce documents as such (see Nader at [59]). As Hill J pointed out in Nader (at [60]) in relation to s.424A as it then stood, the question of what is required by “particulars” will fall to be resolved by reference to the nature of the information the Tribunal has received. The same may be said in relation to “clear particulars”.
It can be accepted that in certain circumstances it would be necessary for the Tribunal to put to an Applicant a copy of a document or the actual text of part of a particular document in order to provide clear particulars of the specific information in question or to ensure that, as far as reasonably practicable, the relevance of such information was understood. However this is not such a case. Provided the Tribunal did not misrepresent or insufficiently disclose the content of the priest’s letter or what the Applicant’s younger brother had said to the Tribunal it was not under an obligation to provide the Applicant with a complete copy of the letter from Fr Joseph Maria or (insofar as the Applicant maintained any such contention) a “quote” from that letter presented as such or to put to the Applicant the actual words said by his younger brother at his Tribunal hearing, and/or to provide the Applicant with a copy of the transcript or recording of that hearing.
Section 424A(1)(a) requires clear particulars of information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review to be put to an Applicant. It does not require a copy of the document containing that information to be put to the Applicant in every case in order to anticipate the possibility that an Applicant may wish to take issue with the authenticity of such documentation.
The Tribunal’s statement of what was said by Fr Joseph Maria, and what was not said by him, was clear and, as is now apparent, consistent with what was actually said in the letter. In the letter tendered after the hearing, Fr Joseph Maria certified that from 1990 to 1995 he was the parish priest in the area where the 1991 revolt took place and that he was “closely involved in that event” being “present in the spot where the police opened fire on the crowd” and the Applicant’s named brother (although described as the “younger” brother of the Applicant’s named younger brother) was shot dead. Moreover the priest stated that the Applicant’s younger brother “is the eye witness of the sad event” and gave his address in Australia. The priest also claimed that “[t]he case [wa]s still pending in the Court, and the Police Party is on the alert to arrest those who are involved in the case”, and that “[t]heir life is threatened and that is the reason why [the Applicant’s younger brother] escaped to Australia”.
In Particular 2 of the s.424A letter the Tribunal stated that the letter from Fr Joseph Maria dated 12 August 2009 confirmed that the Applicant’s younger brother “was the eye witness to the murder”. The Tribunal also stated that there was “no other information in the letter to indicate, even tentatively, that any other member of the family had witnessed the shooting”. In this way the Tribunal provided “clear particulars” of the information in question.
Moreover, it is apparent from the transcript of the Tribunal hearing that the Tribunal raised with the Applicant the existence of the letter from Fr Joseph Maria (Transcript p.39). While the Applicant explained that he did not know why Fr Joseph Maria had written the letter for his younger brother, he also stated that at the time Fr Joseph Maria wrote the letter, his younger brother needed the letter. The Applicant claimed that he was “more familiar to” Fr Joseph Maria. The Tribunal also explained to the Applicant that the Department of Foreign Affairs and Trade had contacted Fr Joseph Maria about his letter by telephone and that Fr Joseph Maria had confirmed the contents of his letter which, as the Tribunal explained to the Applicant, “says essentially that your brother was the eye witness”.
Insofar as the Applicant contends that the Tribunal was required to disclose to him the actual wording of Fr Joseph Maria’s letter or a copy of it because it may have been open to the Applicant to say that the letter was not authentic, there is no evidence that the authenticity of this letter was in dispute in this case. On the contrary, in response to the s.424A letter the Applicant acknowledged that Fr Joseph Maria had given a letter to his younger brother and claimed that his name was not mentioned in that letter because it was only for the younger brother’s needs. It would have been open to the Applicant to make a submission or to raise concerns about the authenticity of the letter had he wished to do so.
In relation to the younger brother’s evidence, it is the case that in his answer to the specific Tribunal question as to why he feared harm from the CPI(M), the younger brother stated that he had “seen the scene of [his] brother’s death” and that “I am a witness” (emphasis added, Transcript p.14). However the brother’s use of the indefinite article “a” in this response rather than the definite article “the”, does not establish that the Tribunal misrepresented the substance of the evidence given by the younger brother.
However, the issue of whether the Tribunal gave the applicant clear particulars of his younger brother’s oral evidence to the Tribunal (differently constituted) has to be seen in light of the younger brother’s evidence as a whole, including the fact that the specific response referred to by the Applicant was a response to a question about why the CPI(M) wished the younger brother harm.
It is apparent from the transcript as a whole that at no time did the younger brother claim that any other member of his family was present to witness the incident and/or pursued by the authorities for that reason. When regard is had to the whole of the younger brother’s oral evidence, it was open to the Tribunal to characterise that evidence as being that he (the younger brother) was the eyewitness to the older brother’s death and that he was being pursued by the police and CPI(M) for that reason.
Moreover, the younger brother’s evidence in that regard was referred to in the s.424A letter in the context of the Applicant’s written claims to be at risk because the police and CPI(M) wanted to eliminate him as “a witness” to his brother’s murder as well as his oral claims that he was the only member of his family who had witnessed the murder and had come to his brother’s aid after he was shot. The meaning and relevance of the younger brother’s evidence is to be seen in this context. Clear particulars were provided.
As to whether the Tribunal ensured as far as reasonably practicable that the Applicant understood why it was relevant to the review, the critical issue was whether the Applicant had witnessed the incident and whether he was pursued for that reason. However at the Departmental interview and the Tribunal hearing the Applicant had claimed he was the only member of the family who had witnessed the shooting of his older brother during a demonstration and clash with the police and that he was the only family member who had assisted his brother after he was shot. In particular, at the hearing he claimed (transcript p.20) that he was the “only one to help” his brother, apart from “strangers”, as follows:
[APPLICANT]: As my brother went down after getting shot, people disbursed to other places. I ran crying and then I was the only person … The man who tried to save police he was shot so police also got afraid and they ran away themselves.
[TRIBUNAL]: Okay.
[APPLICANT]: Some people left the area and ran away, some other people ran after the police and took revenge on them by physically harming them. One of them took gun from police and threw it into the sea. So I did not see this .. of the running of the sea, I was concentrating on my brother who was hurt and his brain was all spread out from the shooting.
[TRIBUNAL]: Did you take your brother to hospital?
[APPLICANT]: When I was lifting my brother’s body part of his brain came out and there were only 5 or 6 men around. Another man was watching the scene and took part of his clothes and made a bandaid around his head. Me and some of the woman were around we removed my brother’s body to a far away place.
[TRIBUNAL]: Okay, that’s fine, thank you very much. I’m sorry you have to - - Okay, so it was just you who was able to go and help your brother?
[APPLICANT]: Yes I was the only one to help. At this time I was fully involved but not involved in this matter I describe but there was nobody else to help me.
[TRIBUNAL]: You mean other than the strangers who helped you, there was nobody else?
[APPLICANT]: After the police and people disbursed and when we moved away from the scene with the body of my brother then people started coming to us.
When the Tribunal raised the younger brother’s evidence about being “the eye witness” with the Applicant (including the fact that the younger brother had not mentioned that any of his other brothers were there) the Applicant responded that it was “possible” that his younger brother may have been watching the incident (Transcript p.38). Thereafter the Tribunal put the substance of the younger brother’s evidence to the Applicant in the s.424A letter.
It is apparent from the Tribunal’s reasons for decision (see [19] – [22] above) that the Tribunal’s concern was the absence of any reference by the younger brother to the Applicant’s role in witnessing the incident as well as the fact that the Applicant was unaware that his younger brother had been an eyewitness who was pursued by the authorities for nearly two decades and had sought protection in Australia on that basis. The Tribunal found that the information provided by the younger brother in relation to his case (including Fr Joseph Maria’s letter) “cas[t] serious doubt on the applicant’s key claim that he was the only eyewitness” to his older brother’s murder and on his claim “that he did not know if any other member of the family had witnessed the incident”.
Although in the s.424A letter the Tribunal referred to the younger brother’s oral evidence in terms of being “a witness” rather than “the witness”, the Tribunal explained that its concern was the absence of mention by the younger brother of any other member of the family being present to witness the incident or to have been pursued by the authorities. In that context there was a sufficient degree of clarity in the particulars (SZMTJ at [52]) and the relevance was sufficiently explained.
It was not simply the younger brother’s oral evidence that he was an eyewitness to his brother’s death, but rather the absence of any mention by him of any other member of the family being present and/or being pursued by the authorities that was of concern to the Tribunal. To the extent that such omission constituted information for the purposes of s.424A(1)(a) of the Act, as an implicit positive statement and not merely a gap (see SZBYR at [18] and SZMKR v Minister for Immigration & Citizenship [2010] FCA 340 at [33] per Gray J), the Tribunal brought it to the Applicant’s attention in sufficiently clear terms.
It has not been established that the Tribunal had to put to the Applicant the actual words used by the younger brother and/or a copy of the recording of his Tribunal hearing in order to meet its obligations under s.424A of the Act.
Insofar as the Applicant contended generally that Particular 2 referred to a significant amount of evidence that had nothing to do with the relevant information and in this sense did not provide “clear” particulars, such a claim has not been made out, either having regard to the specific language of Particular 2 or in the context of the letter of 4 August 2011 as a whole.
In Particular 2 the Tribunal set out in appropriate detail the Applicant’s claims at various times including that his life was at risk as a witness in his older brother’s murder case and that he was the “only member of [his] family” to have witnessed the murder and to have come to his brother’s aid after he was shot. The Applicant’s oral evidence to the delegate was not within any of the exceptions to s.424A(1). Its relevance was made clear by reference to the internal inconsistency in his evidence and also the suggested inconsistency with the evidence of his younger brother and Fr Joseph Maria. There was sufficient specificity.
The clarity of the information put to the Applicant in Particular 2 has to be seen in light of the Tribunal’s explanation of the relevance of the information within s.424A(1) of the Act. Such relevance could only be properly explained if the Tribunal also put to the Applicant his own inconsistent evidence in that respect. The Tribunal properly explained to the Applicant the relevance of all this evidence.
Read as a whole, in light of the character of the information, the degree of clarity in the particulars of the information and the exposition of the relevance of that information, it has not been established that Particular 2 referred to a significant amount of evidence that had nothing to do with the relevant information in a manner that gave rise to a failure to comply with s.424A of the Act.
Nor has it been established that Particular 2 failed to provide “clear” particulars because there were two elements to the suggested inconsistency with the younger brother’s evidence. Reading the paragraph as a whole, it is clear that the Tribunal’s concern about what the younger brother and the priest said about being the eyewitness and pursued by the authorities was in circumstances where neither of them had made any mention of any other member of the family being present to witness the incident or being pursued by the authorities.
Insofar as the Tribunal relied on a lack of specificity in the Applicant’s responses to the s.424A information, this does not establish a failure by the Tribunal to give the Applicant clear particulars in Particular 2. The Applicant clearly understood that his younger brother’s evidence was being put to him for comment, even though his replies to Particular 2 of both 30 May 2011 and 15 August 2011 were limited to a claim that he was facing the same problem as his younger brother (who had been given protection). He had also responded to this issue at the Tribunal hearing, but claimed he could not explain, that he did not see his younger brother at the incident and then that he did not know whether any of his other brothers were there, but that he was the only one who went to the aid of his older brother.
The Applicant also contended that because the provision of the particulars of information in respect of the information in Particular 2 was not clear, that of itself meant that the Tribunal also failed to comply with its obligation under s.424A(1)(b) of the Act to ensure that, as far as reasonably practicable, the Applicant understood why the information was relevant to the review. As it has not been established that the Tribunal failed to give “clear particulars”, no failure to comply with paragraph 424A(1)(b) of the Act has been established on this basis.
As indicated, the Tribunal’s statement of the relevance of the information in Particular 2 was sufficient to ensure, as far as reasonably practicable, that the Applicant understood the relevance of the information in relation to his claim about being the only eyewitness and that he did not know if other members of his family had witnessed the incident in which his brother was murdered. The Tribunal also explained the broader relevance of the information in relation to the Applicant’s claims about being wanted or targeted by anyone in India and to his credibility. It has not been established that in putting the younger brother’s oral evidence (and omissions) to the Applicant the Tribunal failed to give the Applicant clear particulars of the information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review or that it failed to ensure as far as reasonably practicable that the Applicant understood the relevance of such information.
No failure to comply with s.424A of the Act is made out in relation to Particular 2 of the letter.
Particular 3
Particular 3 of both s.424A letters is:
On 14 February 2011, you submitted additional documents to the Department. One of the documents submitted was a letter from Mr Jahangeer A, Advocate and District Notary, dated 8 February 2011. The letter appeared to be in relation to the status of the case pending before the Sessions Courts. According to the letter, you along with your brothers … and a few others were named as ‘Accuseds’ (sic) in a number of pending cases dated 1991, 2002 and 2006. In outlining the history of the case, Mr Jahangeer stated:
The case registered by Thumba Police in 1991. It was a mob attack in which a civilian named [deceased brother] and a Police Officer were died. Police registered two cases initially and after than several cases have been registered implicating innocent peoples of the locality along with the brothers and relatives of deceased, [deceased brother], [and two named persons]. Most of the cases have been pending since 2002 as long pending warrants. Police continued their search to locate the accuseds (sic).
Neither in your application for a protection visa nor in your interview with the delegate you mentioned having been named as an ‘accused’ or having been the subject of a police search, nor a court case brought about by the police. At the hearing you claimed that you first heard that you were named in the case filed by the police after receiving Mr Jahangeer’s letter.
The information in the letter and your oral evidence to the Department are relevant because, on the basis of the inconsistencies in your evidence to the Department and the information contained in the letter, the Tribunal may find that the letter and its contents are fabricated and designed to assist you in achieving an immigration outcome. The Tribunal may also disbelieve your claims and find that you have not been truthful and/or credible.
In essence, in Particular 3 of the s.424A letter the Tribunal raised with the Applicant its concern about the claim in the letter of 8 February 2011 from Dr Jahangeer that the Applicant and others were named as “Accuseds” (sic) in a number of pending court cases from 1991, 2002 and 2006 and that they were the subject of “Long Pending Warrants” and police searches. The Tribunal expressed concern about the absence of any prior claim by the Applicant that he had been named as an “accused” or that he was the subject of a police search or a court case brought by the police.
It is apparent from Dr Jahangeer’s letter of 8 February 2011 that it was claimed that the court cases implicated the Applicant in relation to the death of a policeman in the 1991 incident in which the Applicant’s older brother also died. In its reasons for decision (see [23] – [26] above) the Tribunal had regard to this information in the course of finding that the Applicant had provided inconsistent and unconvincing evidence in relation to the nature of the interest of the police and authorities in him.
The Applicant submitted that there was illogicality and irrationality in the Tribunal’s approach, in that there was an inherent contradiction between the Tribunal finding that the letter from Dr Jahangeer was “fake” on the one hand and on the other hand expressing concern that the Applicant had not provided a satisfactory explanation for why he had not mentioned earlier that he was an “accused” as claimed in that letter. In this context it was submitted that the particulars of the information in Particular 3 were not “clear particulars” in that they made it difficult for the Applicant to understand the relevance of this information.
First, contrary to the Applicant’s contention the Tribunal did not in fact find that the letter from Dr Jahangeer was “fake. Rather, based on its adverse credibility finding, it gave no weight to such document (or to the “Court Order”).
There was no inherent contradiction (and hence lack of clarity in the s.424A letter) in the Tribunal raising with the Applicant its concerns about the Applicant’s failure to mention his involvement in what were later said to be long-standing cases.
Insofar as Particular 3 put to the Applicant “information” within s.424A (in what can be seen as an implicit positive statement about not having been named as an accused or having been the subject of a police search or any court case bought by the police and not merely an absence of evidence from the Applicant in his interview with the delegate), this was clearly presented and contrasted with Dr Jahangeer’s later evidence that the Applicant and others had been named as accused persons in a number of pending cases dated 1991, 2002 and 2006, that “most of the cases ha[d] been pending since 2002 as Long Pending Warrants” and that the “[p]olice continued their search to locate the accuseds”.
Moreover, notwithstanding that the Tribunal did not ultimately find that Dr Jahangeer’s letter was fabricated, the Tribunal explained in Particular 3 that on the basis of the inconsistencies and the information contained in Dr Jahangeer’s letter, the Tribunal may find not only that the letter and its contents were fabricated and also may disbelieve the Applicant’s claims and find that he had not been truthful or credible. These two possibilities sit conformably with each other. It has not been established either that the Tribunal failed to provide “clear particulars” of information within s.424A(1) or that it failed to ensure, as far as reasonably practicable, that the Applicant understood the relevance of the information within s.424A(1)(b) of the Act.
Thus, it was submitted that an aspect of the “opportunity” provided for in s.424A of the Act was a requirement that the Tribunal give the Applicant a minimum period within which to provide comment or response, namely the “prescribed period”. It was contended that this was not a single opportunity to provide a single response or comment, but rather a “prescribed period” during which the Applicant may provide several responses or comments.
The Applicant pointed out that in SZEXZ (at [37]) Jacobson J had identified the original objective of s.424B(2) as being to ensure that once the invitation to comment or respond had been issued, the Applicant had “a reasonable period of time in which to provide the information or comment”. His Honour also said that consideration must be given to the part that subsection played “in the codified regime of procedural fairness contained in Div 4 of Part 7 of the Act” (at [42]). It was submitted that this dicta remained applicable in spite of subsequent amendment to the Act.
The Applicant also submitted that while s.424C(2) allowed the Tribunal to put to an end the review process, irrespective of whether or not the Applicant had provided a response or comment (so that it need not wait indefinitely) the Applicant was allowed a minimum time to provide that response. In support of this proposition it was pointed out that the Tribunal was not at liberty to demand a response within a period less than the “prescribed period”, but rather that it could only request a response to a s.424A letter within the “prescribed period” or, if no period was prescribed, a reasonable period. In other words it was contended that the Tribunal could extend the time for response but that it could not limit it, because the “prescribed period” was a minimum period. As this was said to be all the procedural fairness Division 4 of Part 7 afforded an Applicant before the opportunity to respond was automatically revoked by the operation of s.424C(2) it was submitted that it ought not to be interpreted (as the First Respondent was said to have suggested) as providing the Applicant only a single shot. Rather, it was submitted that it ought to be interpreted as allowing the Applicant the full benefit of the limited period within which he could give a response or comment.
The Applicant also submitted that it could not be assumed that the Applicant would not have sought to lodge further submissions or material with the Tribunal or an extension of time to do so (s.424B(4)). Reference was made to the fact that the Applicant had lodged submissions in relation to the particulars of information set out in the s.424A letter on three discrete dates. It was said to be clear that the Applicant was doing everything he could to obtain further supporting documentation from overseas and to put that material before the Tribunal as and when it became available and that his reply was not a once and for all effort. Thus it was contended that it could not be assumed that had the Tribunal not made its decision before the period stipulated in the 4 August 2011 letter had expired, the Applicant would not have sought to lodge further material with the Tribunal.
In addition, it was submitted that an invitation to respond or comment under s.424A could not be perfunctory, but must be a real opportunity. In the present case it was said that there was no real opportunity because the particulars of information which were required to be given were not clearly given or given at all and that for each of the particulars of information that were given, their relevance was not explained as far as was reasonably practicable or at all.
Thus it was submitted that by making its decision within the prescribed period the Tribunal had failed to comply with the procedural requirements set out in ss.424A, 424B and 424C, because although it had taken the step of issuing an “invitation”, it had not afforded the Applicant the full “opportunity” to respond and therefore it did not complete the process of review in the way it had itself recognised to be necessary.
In the alternative, the Applicant submitted that there had been a failure by the Tribunal to “invite” the Applicant within s.425 of the Act. The Applicant submitted that s.425, as interpreted by the High Court in NAFF, did not merely require a letter of invitation to be issued, but also required that the Tribunal afford the Applicant an opportunity to be heard.
It was submitted that even if the Court was of the view that the Tribunal was not required under s.424A to put to the Applicant the information it purported to put in the 4 August 2013 letter, it could nonetheless be said that at the end of the Tribunal hearing the Tribunal was of the view that it was necessary for a letter to be sent to put to the Applicant inconsistencies that had been identified. Hence it was contended that the Tribunal could be said to have discharged its function of review only once this process was complete.
The Applicant submitted (in an echo of the concerns raised in the context of grounds 2 and 3) that by issuing an invitation that was prolix, difficult to comprehend and not fully effective in explaining the relevance of the perceived inconsistencies, and then by issuing its decision prior to expiration of the period stipulated in the 4 August 2011 letter, the Tribunal failed to undertake the steps that it had itself set out for completion of the review.
The Applicant acknowledged that some response had been provided by the time the Tribunal issued notice of its decision. However it was submitted that, for the reasons raised in relation to grounds 2 and 3, the s.424A letter never effectively put the information to the Applicant in the first place so that there could be a meaningful response. The Applicant reiterated the contentions that the s.424A letter was confusing, that it was difficult to identify the particular items of evidence said to be in conflict and that it did not always explain the relevance of the information to a reasonably practicable extent. In such circumstances it was submitted that it could not be said that the Applicant ever had the opportunity to provide a true response to all of the relevant matters such that the Tribunal could complete the steps necessary to finalise the review. It was suggested that even if the Applicant’s handwritten notes of 30 May 2011, 20 June 2011 and 15 August 2011 were regarded as notionally in response to the 4 August 2011 s.424A letter, it was evident that the content of these notes did not in fact provide a substantive response in that they were not truly responsive in many respects, as was recognised in the Tribunal’s reasons.
The Applicant contended that ss.424A and 425 were mandatory requirements which had to be complied with in the exercise of the Tribunal’s jurisdiction (see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 per Gaudron and Gummow JJ at [58] and SAAP at [77], [136] and [208]) and that there was no proper basis to assert that relief should be denied on discretionary grounds.
As the First Respondent submitted, no breach of ss.425 or 424A has been established on the basis contended for in Ground 4 of the Further Amended Application.
It is convenient to consider s.425 first. The Applicant attended a Tribunal hearing. It has not been established that there were any “issues” in respect of which the Applicant was not given the opportunity required by s.425 at the Tribunal hearing. None have been identified and nor are any apparent.
Nor can it be said that in this case the Tribunal’s conduct indicated that the review could not be completed until after the expiration of the period set out in the letter of 4 August 2011. Even if the issue of the invitation of 4 August 2011 is to be seen as a binding indication that the review process would not be concluded until the applicant had an opportunity to respond (see SZGUR at [9]), in this case the Applicant responded on 15 August 2011. I am not persuaded that anything that occurred at the Tribunal hearing prevented the Tribunal from completing the review before the expiration of the time for response provided in the letter of 4 August 2011 in circumstances where the Applicant had been given and had taken the “opportunity to respond” (SZGUR at [9]) to the matters raised by the Tribunal in writing.
Further, contrary to the Applicant’s contentions about a lack of clarity in the letter of 4 August 2011, for the reasons given in relation to grounds 2 and 3, I am not persuaded that the invitation was such that there could be no meaningful response and hence the review was never completed. No failure to comply with s.425 of the Act or error of the kind identified in NAFF has been established.
The issue of whether ss.424A, 424B and 424C or the requirements of natural justice compel a conclusion that the Tribunal could not make a decision on the review until the prescribed time had expired is more problematic. For the reasons that follow, while I incline to the view that in particular circumstances an Applicant may be denied procedural fairness (outside the constraints of s.422B(1) of the Act) if a Tribunal makes its decision prior to the expiration of the prescribed period for response specified in a s.424A letter, this is not such a case.
First, the provisions of the Migration Act should not prevent the Tribunal from making a decision at the time that it did in the particular circumstances of this case.
It is relevant to have regard not only to ss.424A, 424B and 424C but also to ss.63 and 415 of the Act.
Section 63 is contained in Division 3 of Part 2 of the Act which applies to decisions of the Minister and relevantly provides:
When decision about visa may be made
(1) Subject to sections 39 (criterion limiting number of visas), 57 (give applicant information), 84 (no further processing), 86 (effect of limit on visas) and 94 (put aside under points system) and subsections (2) and (3) of this section, the Minister may grant or refuse to grant a visa at any time after the application has been made.
…
(3) The Minister is not to refuse to grant a visa after inviting the applicant to comment on information and before whichever of the following happens first:
(a) the comments are given;
(b) the applicant tells the Minister that the applicant does not wish to comment;
(c) the time in which the comments are to be given ends.
There is no equivalent provision in Division 4 of Part 7 of the Act. However, pursuant to s.415(1) of the Act the Tribunal may exercise all the powers and discretions conferred by the Act on the person who made the decision under review (that is, the delegate of the Minister).
Sections 415, 424B(1) and (2) and 424C(1) and (2) are as follows:
415 (1) The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter--remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision.
(3) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.
424B (1) If a person is:
(a) invited in writing under section 424 to give information; or
(b) invited under section 424A to comment on or respond to information;
the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
424C (1) If a person:
(a) is invited in writing under section 424 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
(2) If the applicant:
(a) is invited under section 424A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information.
By reason of s.422B(1), Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of procedural fairness in relation to the matters it deals with to the exclusion of the common law natural justice hearing rule (Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59] – [67]; SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8]).
In essence, the Applicant submitted that the Tribunal failed to meet the “procedural requirements” of ss.424A, 424B and 424C and hence while it had issued an invitation it had not afforded him the full “opportunity” to respond and therefore did not complete the process of review in the way it had recognised to be necessary.
The Applicant did not identify any “procedural” requirements in s.424A (beyond reiterating the contention about the lack of clarity in the particulars of the information). However even if (as discussed above in relation to grounds 2 and 3) there was some lack of clarity in the s.424A letter this would not of itself mean that the Tribunal had not completed its review. It has not been established that there was a failure to comply with a “procedural” requirement of s.424A of the Act. There is no suggestion that the invitation of 4 August 2011 was not given in accordance with s.424A(2) of the Act. Under ground 4 the assertion of jurisdictional error is based on the fact that the Tribunal made its decision before the expiration of the “prescribed period” referred to in s.424B of the Act. The jurisdictional error established under ground 3 is a separate issue.
At its widest, the Applicant’s contention in relation to s.424B(2) was that the “prescribed period” referred to in s.424B was a minimum period and that the Tribunal was not “allowed” to make a review decision until after the prescribed period had expired.
Section 424B of the Act deals with the requirements for the written s.424A invitation. Relevantly, it provides that an invitation under s.424A to comment or respond to information must specify the way in which the comments or the response may be given (being the way the Tribunal considers is appropriate in the circumstances). If that way is not at an interview, then this is to be within the prescribed period (or if no period is prescribed, a reasonable period).
The requirements and effect of a failure to comply with s.424B have been considered in a number of cases. The obligations imposed by s.424B(2) are directed to ensuring that an Applicant has an adequate opportunity to provide comments on or a response to a s.424A letter (see Minister for Immigration and Citizenship v SZIZO and Others (2009) 238 CLR 627 at 639; [2009] HCA 37 per French CJ, Gummow, Hayne, Crennan and Bell JJ).
SZEXZ concerned a s.424A letter which gave the Applicant more than the prescribed period of time to respond. The Minister conceded that the invitation was in breach of s.424B, but argued that there was no jurisdictional error. The Applicant had attended a hearing and had responded to the s.424A letter. Jacobson J pointed out (at [30]) that:
The question of whether a breach of s 424B(2) gives rise to jurisdictional error is to be answered by having regard to the language of the section and the scope and object of the whole statute; the question is whether it was a purpose of the legislation that an act done in breach of the provision should be invalid; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1989) 194 CLR 355 at [91], [93]; see also SAAP at [73], [205].
As indicated, his Honour was of the view that the “object, or at least one of them,” of s.424B(2) “is apparently to ensure that after the invitation is issued, the applicant has a reasonable, albeit relatively short, period of time in which to provide the information or comments to the RRT” (at [37]) and that it was relevant to have regard to the part s.424B played in the codified regime of procedural fairness in Division 4 of Part 7 of the Act (at [43]). Jacobson J also made the point that the issue of whether the breach complained of gave rise to jurisdictional error “cannot be answered by simply posing the question of breach or no breach; it is necessary to consider whether in the particular circumstances the breach had that result” (at [48]). His Honour found that the breach in question did not give rise to jurisdictional error but that, in any event, if he was wrong he would have refused relief as the appellant had suffered no injustice (at [51] – [53]). Relevantly in this case the s.424A letter of 4 August 2011 specified the correct prescribed period.
In M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; [2006] FCA 1247, Tracey J considered a contention that a failure to comply with s.359B(2) (the equivalent of s.424B(2)) in relation to specification of the prescribed period to respond in a s.359A letter meant that there was no lawful invitation by the Migration Review Tribunal.
It was acknowledged that there was no suggestion that “all breaches of the procedural requirements imposed by the Act would give rise to jurisdictional error” (at [32]). Tracey J found (at [34]) that the procedural obligation imposed by s.359A (the equivalent of s.424A) was “imposed in imperative terms” so that any failure to comply with that section would result in invalidity (see SAAP). His Honour made the point that s.359B (the equivalent of s.424B) was not of the same nature. As His Honour stated (at [35]):
Section 359B of the Act is, on its face, a more flexible provision. It is designed to avoid extended delays in the decision making process in circumstances where the Tribunal chooses or is required to seek additional information or comment from an applicant. If there is a prescribed period that period is to be specified in the invitation. Otherwise a reasonable period limitation is imposed. By s 359B(4) of the Act the Tribunal may extend a prescribed period for a prescribed further period. The burden of any temporal requirement falls on an applicant. There is no requirement that an applicant respond to an invitation. No imperative obligation is, in terms, imposed on the Tribunal by s 359B of the Act.
In SZLWQ Buchanan J went further in expressing the view that s.424B(2) did not establish the kind of obligation on the Tribunal which could lead to either statutory breach or jurisdictional error. As his Honour stated (at [52]):
Section 424B(2) on its face directs that ‘information or comments are to be given within a period specified in the invitation’. It does not, in terms, impose a direct obligation on the RRT about the terms of the invitation (cf s 424B(1) – ‘the invitation is to specify ...’). The consequence of any failure to specify a period is that the facility in s 424C of proceeding to a decision in the absence of the information might not be available but I do not see s 424B(2) as establishing the kind of obligation on the RRT which could lead to either statutory breach or jurisdictional error. A circumstance of this kind (failure to specify a period and consequent inability to rely on s 424C) does not fall within any of the reasoning in SZKTI…, SZKCQ… or SZIZO... As it happens the information was given. It was brought to the attention of the appellant. She had an opportunity to deal with it. It cannot be said that the information was not given before the time for it had passed (s 424C(1)(b)). In my view no ‘breach’ of s 424B(2) occurred and, in any event, any failure to comply with its strict terms did not, in the circumstances of this case at least, amount to jurisdictional error on the part of the RRT. The Minister’s latest written submissions drew attention to judgments of this Court to similar effect (SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 449 and M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333 at [34]- [37]).
Such remarks remain applicable notwithstanding subsequent amendment to s.424A of the Act.
Consistent with the view taken in these cases, it cannot be said that any failure to comply with s.424B(2) amounts to a jurisdictional error. Rather, it is necessary to consider the particular circumstances of the case to determine whether in the particular circumstances there is a breach which gives rise to jurisdictional error. Moreover, even if there may be said to be a jurisdictional error arising out of a breach of s.424B, the court may exercise its discretion not to grant relief where an applicant had suffered no “injustice” by reason of (for example) a misstatement of the prescribed period (see SZEXZ at [50] – [53], M at [38] and also see SZLPO v Minister for Immigration and Citizenship (No 2) (2009) 177 FCR 29; [2009] FCAFC 60 at [144] – [146]).
In this case, notwithstanding that the prescribed period was understated in the first s.424A letter, the applicant effectively had a period of considerably more than the prescribed period to provide comments or response. The second s.424A letter gave him the correct prescribed period. He provided comments or response on three separate occasions. He did not seek additional time to respond. It has not been established that there was any denial of natural justice arising from the Tribunal’s failure to specify the correct prescribed period in the first s.424A letter.
Moreover, consistent with the approach taken to s.424B(2) by the Federal Court, (in particular in SZLWQ), and having regard to the fact that that section is not expressed in terms which impose an obligation on the Tribunal (let alone an obligation expressed in mandatory terms) I am not satisfied that s.424B of itself imposes a mandatory statutory obligation on the Tribunal not to make a review decision until after the expiration of the prescribed period.
Nor do any of the other provisions of the Act lead to the result that the Tribunal had no power to make its decision when it did, in the particular circumstances of this case.
The First Respondent raised the issue of the effect of s.63 of the Act. It is relevant to consider this provision before turning to s.424C of the Act. Section 63(1) empowers the Minister (and, by extension, his delegates) to make a decision on an application for a visa at any time after the application has been made, subject to a number of restrictions. Relevantly, s.63(3) imposes restraints on the decision-maker as to the circumstances in which a decision to refuse to grant a visa may be made. Section 63(3) limits this power in circumstances where an applicant has been invited to comment on information. In such circumstances the Ministerial delegate is not to refuse to grant a visa before one of three events happen. One such event is the giving of comments on the information. Thus s.63(3) imposes a restraint on the decision-maker’s power to refuse to grant a visa.
The paragraphs in s.63(3) are expressed in a disjunctive fashion. If an applicant gave comments before the time provided for comments to be given has ended, the restraint imposed by the subsection (that is, not to refuse to grant a visa) would be lifted.
Under s.411 of the Act, a decision to refuse to grant a protection visa is an RRT-reviewable decision. For the purposes of the review of an RRT-reviewable decision the Tribunal may “exercise all the powers and discretions that are conferred by the Act on the person who made the decision” (s.415(1)). Relevantly it may, among other things, affirm the decision to refuse to grant a visa (s.415(2)).
However any restraint imposed on the Tribunal by the combination of these provisions would not have prevented the Tribunal from making its decision at the time that it did, given that the event referred to in s.63(2) of the Act had occurred. The Applicant had given his comments.
Beyond this, Division 4 of Part 7 of the Act contains specific obligations which must be met by the Tribunal in conducting its review (including, relevantly s.424A of the Act). As indicated, s.424B(2) deals with the requirements of the invitation. Section 424C deals with the situation where the Applicant has failed to respond to an invitation. However s.424C(2) is permissive in form. It permits the Tribunal to make a decision on the review without taking any further action to obtain the Applicant’s views on the information if the Applicant does not give the comments or the response before the time for giving them has passed. In effect, it does impose a restraint on the Tribunal, insofar as the Tribunal could not proceed to make a decision on the review until after the time for giving the comments or the response had passed if the Applicant had not given the comments or the response. However s.424C does not impose such a restraint in circumstances where, as here, the Applicant has in fact given comments or response. There is nothing in the language of s.424C(2) which imposes a restraint on the Tribunal from proceeding to make a decision on the review until after the time for giving comments or a response has passed in circumstances where the Applicant has provided the comments or the response within the prescribed period. Rather, such restraint exists only if the Applicant had not given the comments or the response.
If, as occurred in this case, an applicant gave comments or response before the time in which the comments or response were to be given had passed and the Tribunal wished to affirm the decision to refuse to grant the visa, neither s.63(3) nor s.424C(2) would impose a restraint on the Tribunal from proceeding to make a decision on the review until after the time for giving the comments had passed.
Moreover, and critically, in the circumstances of this case the Applicant was not denied natural justice by the Tribunal proceeding in this manner (see SZIZO at [36]). The Applicant in effect had two opportunities to respond to the information put to him under s.424A of the Act. Both letters contained the same information. He provided a response to the Tribunal’s first letter of 13 May 2011 on 30 May 2011. When he attended at the Tribunal’s registry, he requested and received further time to submit more information. He did this on 20 June 2011. The Tribunal then re-issued its letter on 4 August 2011. The Applicant provided a written response on 15 August 2011. Contrary to the Applicant’s contention, the fact of there having been such response was not in some way contingent on the quality of the response assessed retrospectively.
Moreover in the response of 15 August 2011 the Applicant adopted his earlier responses. By way of postscript he said “I apologise for the delay of this letter. Because, my all documents was with my friend’s hand, on 14/08/2011 I received from him, really sorry”. Importantly, he did not seek additional time to make further comments or to provide further information. Nor did he indicate that any further information was forthcoming. Nor is there any suggestion that he subsequently sought to make a further response or to provide further information to the Tribunal. There is no evidence before the Court to support any claim that he was denied procedural fairness because the Tribunal made its decision before the expiration of the prescribed period.
While there may well be circumstances in which the fact that the Tribunal made a decision before the expiration of the prescribed period would involve a denial of procedural fairness, this is not such a case. No jurisdictional error has been established in the circumstances of this case.
It has not been established that s.424B, s.63 or s.424C (or any combination thereof) operated as an inviolable restraint on the Tribunal’s jurisdiction to make a decision on the review until after the prescribed period for giving the comments or response had passed in circumstances where the Applicant had in fact given his comments and response to the Tribunal’s s.424A letter. In the absence of any denial of procedural fairness the Tribunal was authorised under the Migration Act to proceed to make a decision on the review at the time that it did.
Ground four is not made out.
If I am wrong and the Tribunal should be seen as having committed a jurisdictional error by proceeding to make a decision the day before the prescribed period for response to the second s.424A letter expired, were it not for the separate jurisdictional error discussed above I would have denied the relief sought in the exercise of the Court’s discretion (cf. SZBYR at [28] – [29]; Ex parte Aala at [104]) as I am satisfied that the Applicant has suffered no injustice as a result of the timing of the Tribunal decision. He responded to the information on three occasions. He did not indicate that any further information or response was forthcoming.
However as jurisdictional error has been established on one of the bases contended for in ground three of the Further Amended Application the matter should be remitted to the Tribunal for redetermination according to law.
I certify that the preceding two hundred and sixty-three (263) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 5 April 2013
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