SZQSC v Minister for Immigration - [2012] FMCA 531

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQSC v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 531

MIGRATION – Review of decision of Refugee Review Tribunal – alleged failure to consider all of the applicant’s claims – documents provided to the Tribunal by the Secretary to the Minister’s department – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.36, 65, 414, 418, 424A, 425, 425A, 426A, 430, 438, 441A, 441C, 441G, 476
Migration Regulations 1994 (Cth), r.4.35D

Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No.2) [2004] FCAFC 263
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
MZWBW vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94
Xu v Minister for Immigration & Multicultural Affairs [1999] FCA 1741; (1999) 95 FCR 425;
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister of Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1
SZFDE& Ors v Minister for Immigration & Citizenship & Anor [2007] HCA 35; (2007) 232 CLR 189; (2007) 237 ALR 64
SZFDE & Ors v Minister for Immigration & Anor [2005] FMCA 1979
Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88
Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204
SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195
SZFXC v Minister for Immigration & Citizenship [2007] FCA 381

Applicant:

SZQSC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2227 of 2011

Judgment of:

Nicholls FM

Hearing date:

1 May 2012

Date of Last Submission:

1 May 2012

Delivered at:

Sydney

Delivered on:

27 June 2012

REPRESENTATION

Appearing for the Applicant:

Mr M Jones

Solicitors for the Applicant:

Michael Jones, Solicitor

Counsel for the Respondents:

Mr J Smith

Solicitors for the Respondents:

Minter Ellison

ORDERS

The application made on 4 October 2011, amended on 14 December 2011 and further amended on 1 May 2012, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $9,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2227 of 2011

SZQSC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made on 4 October 2011, amended on 14 December 2011 and further amended on 1 May 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 30 August 2011, to affirm the decision of a delegate of the respondent Minister to refuse the applicant a protection visa.

Background

The applicant is a citizen of Lebanon and a Sunni Muslim (Court Book – “CB” – CB 3). He arrived in Australia on 8 May 2010 on a visitor visa and applied for a protection visa on 31 May 2010 (CB 1 to CB 54 with annexures). The applicant was assisted in his application by a solicitor, Mr Sam Issa, who was also appointed as the applicant’s authorised recipient for the purposes of correspondence (CB 25).

Claims to Protection

Included as an attachment to the application was a statutory declaration in which the applicant set out his claims to protection (CB 51 to CB 54). Namely:
1)In May 2007 he had sold his car to another man in Lebanon. A deposit was paid and the applicant was to receive the remainder of the funds after two days.
2)Four days later the applicant had still not heard from the purchaser, or received the outstanding funds. He repeatedly called the mobile phone number provided by that individual, however those calls went unanswered. Later that day he was advised that the purchaser of his car had been arrested in relation to a conflict at a refugee camp.
3)The applicant was telephoned that evening by “Lebanese intelligence” and requested to attend an interview the next day, which he did at 10am. He was questioned as to his relationship with the purchaser of his car and released over 12 hours later.
4)The following Saturday the applicant was again requested to attend at the intelligence headquarters. He did so and was questioned and detained overnight. The next day he was blindfolded and interrogated. This continued for five days before he was moved to a prison. He remained imprisoned for just over 24 months and suffered periodic interrogation and torture.
5)After his release, in September 2009, the applicant was shot in the face. He alleged that the attack was by the Lebanese intelligence service. Although he reported the incident to the police it was not investigated and he was advised not to pursue it.
6)He feared for his life and decided to leave Lebanon.
The applicant’s representative provided several documents in support of his claims to the delegate (CB 68 to CB 77, CB 85 to CB 93 and CB 97 to CB 111).

The Delegate

By letter dated 1 February 2011 the applicant was invited to attend an interview with the delegate on 18 February 2011, which he attended (CB 94 to CB 96).
On 24 May 2011 the Minister’s delegate decided to refuse the applicant the grant of a protection visa (CB 129). The delegate expressed “serious doubt” about the applicant’s credibility and his claims, particularly given the inconsistency between his evidence and the statutory declaration provided in support of his application (CB 127 to CB 128).
In these circumstances, the delegate placed little weight on the supporting documents provided by the applicant, particularly as they were non-certified facsimile copies, and on the basis that fraudulent documents were said to be available in Lebanon (CB 128).

The Tribunal

On the day of the delegate’s decision, that is prior to the lodging of any application for review, an officer of the Minister’s department advised the District Registrar of the Tribunal that certain material contained in the delegate’s file was, in the delegate’s view, subject to s.438(1)(b) of the Act (CB 131).
On 2 June 2011 the applicant applied to the Tribunal for review of the delegate’s decision (CB 132 to CB 136). He was assisted by the same representative, who was appointed as the authorised recipient for the purposes of the review (CB 134). A P O Box address, facsimile number and phone number were provided for the purpose of receiving such correspondence.
Also on 2 June 2011, by facsimile transmission sent to the number provided by the applicant’s representative for the purpose of receipt of such correspondence, the Tribunal acknowledged receipt of the application for review (CB 137 to CB 141).
On 5 July 2011, again by facsimile transmission to the relevant number, the Tribunal invited the applicant to attend a hearing on 30 August 2011 (CB 148 to CB 158). The Tribunal advised that, on the material before it, it was unable to make a decision favourable to the applicant (CB 151), and provided the applicant with an opportunity to appear before it. The applicant did not respond to the hearing initiation.
The applicant did not appear at that hearing (CB 160 to CB 161). Nor did his advisor. Ten minutes prior to the commencement of the scheduled hearing the applicant’s representative had been contacted by telephone by an officer of the Minister’s department (CB 159). Mr Issa advised that he was unaware that a hearing had been scheduled, and that the last correspondence he had received from the Tribunal was the “Acknowledgment of Application” letter transmitted on 2 June 2011.
Subsequent to this, without any additional hearing being scheduled or correspondence received, the Tribunal decided on 30 August 2011 to affirm the decision of the delegate (CB 166 to CB 176). It set out its findings and reasons in its decision record ([31] at CB 174 to [37] at CB 175), a copy of which was provided to the applicant by way of facsimile to his representative (CB 163 to CB 165).
In reaching its decision the Tribunal turned its mind to the applicant’s Departmental file, the material referred to by the delegate in her decision and other country information ([19] at CB 169).
The Tribunal found that the applicant had been invited to a hearing as the invitation, sent by facsimile transmission, had been sent to the number provided by his authorised representative for the purpose of receiving such correspondence ([29] – [30] at CB 174).
As the applicant had failed to make out his claims, or attend at the hearing to allow his claims to be tested, the Tribunal was not satisfied that he had suffered harm of any kind in the past ([37] at CB 175). Nor that Lebanese authorities would be unable or unwilling to provide effective protection to the applicant in the event that he was harmed.

Application to the Court

The originating application to the Court contained one ground. On 2 November 2011, at the first Court date, consent orders were made granting leave to the applicant to file an amended application by 14 December 2011. The applicant filed an amended application on that date setting out the following ground:
“1. The Tribunal’s decision was affected by jurisdictional error because it failed to have consideration to all the claims made by the applicant.
Particulars
The Tribunal considered only the written evidence submitted by the applicant, not taking into account the evidence that the applicant gave orally to the Minister’s delegate.”
A further amended application was presented at the Court’s registry on 18 April 2012. At the hearing the applicant sought leave to file and rely on the amended application. The further amended application contained an additional ground to that of the amended application of 14 December 2011. Namely:
“2. The Tribunal was misdirected by the Minister’s Department in relation to the legal status of, and the Tribunal’s options in respect of, certain documents provided to the Tribunal by the Secretary.
Particulars
The Tribunal had before it the Department’s file number CLF2010/74869. On 24 May 2011, the delegate of the Minister who made the decision to refuse the Applicant’s protection visa wrote to the District Registrar of the Tribunal (see RD 131) a letter which purported to make the Tribunal’s use and disclosure of certain parts of that subject to subsections 438(3) and (4) of the Act. That letter was not capable in law of having such an effect.”

Before the Court

At the hearing before the Court Mr M Jones appeared for the applicant. Mr J Smith of counsel appeared for the first respondent. Both parties filed written submissions.

Ground One: The Argument

The complaint as stated in the applicant’s first ground is that the Tribunal failed to consider all of the applicant’s claims. In short, this was said to be because the Tribunal did not consider the evidence given by the applicant at the interview with the delegate, but only had regard to the written material before it.
Implicit in the ground as stated is that the Tribunal erred in either not listening to the audio recording of the interview with the delegate or having regard to the delegate’s detailed account of the interview in her decision record. In submissions this was expanded to an assertion that the Tribunal did not consider the delegate’s written account of the interview as set out in her decision record.
The submission was that the Tribunal set out its understanding of the applicant’s claims at [34] – [35] (at CB 175) of its decision record:
“[34] The applicant claims that he was detained, interrogated and imprisoned without charge for a period of 24 months and one day. He claims after his release an attempt was made on his life in which he was shot in the face by members of the ‘Lebanese intelligence’.
[35] He claims that these events occurred because he sold a car to a certain Mr Merhi who he claims had been arrested by the Lebanese intelligence and that his arrest was associated with the conflict at Nahar El Bared.”
The complaint is that his claims were set out in substantially more detail in the written material and contained “significant matters”. Further, that in her account of the interview, which was detailed, the delegate noted discrepancies in the applicant’s evidence and considered documents submitted by the applicant. Details of the applicant’s claims contained in that material were said to be at variance with the Tribunal’s statement of the applicant’s claims.
The submission was that the fact that the applicant did not attend the hearing did not relieve the Tribunal from the obligation to consider all the material before it, including the discrepancies noted by the delegate, and to come to some view about them.
The Minister agreed that a failure to consider all the claims made by the applicant may constitute jurisdictional error (Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 (“Htun”)). This can be further refined by stating that the Tribunal is obliged to deal with all of the claims expressly made and clearly arising from the circumstances presented (NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No.2) [2004] FCAFC 263 and WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184).

Ground One: The Consideration

It must be said that the articulation of the applicant’s complaint suffers from a number of deficiencies.
First, some delineation between the terms “claim”, “evidence” and “material” must be applied here. While the Tribunal is obliged to deal with all of an applicant’s claims and each integer of each claim, it is not required in its decision record to refer to every piece of evidence or material before it, or to deal with every piece of evidence before it (MZWBW vMinister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 at [26] to [27] per Black CJ, Sundberg and Bennett JJ and Htun at [42] per Allsop J (with whom Spender J agreed)).
Second, s.430 of the Act requires the Tribunal to set out in its decision record only that evidence and material on which its findings of fact are based (s.430(1)(d)). A failure to refer to any particular evidence or material would not constitute a breach of s.430 unless a finding of fact was based on it. But even then, such a breach does not reveal jurisdictional error (Xu v Minister for Immigration & Multicultural Affairs [1999] FCA 1741; (1999) 95 FCR 425 at [17], Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [70] per McHugh J).
Third, the applicant does not now relevantly say what claims the Tribunal is said not to have dealt with or to have overlooked. If, therefore, the reference to the delegate’s interview and the written account of the delegate’s interview is put merely to say that the Tribunal did not deal with these as such, and if the reference is in general to “evidence” or “material”, then no jurisdictional error arises (Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51 at [21] – [28] per North and Lander JJ, with whom Katzmann J agreed (see at [35])). In the absence of specificity as to any claims, or integers of claims, overlooked by the Tribunal the ground cannot succeed.
In submissions the applicant said that the delegate set out a number of issues and identified discrepancies in these arising from the interview with the applicant. This is as far as the applicant went to give some specificity to his complaint. What remains therefore is a complaint that a failure to refer to the claims in the same level of detail as the delegate means that the Tribunal did not deal with the claims.
The applicant relies on a comparison between [34] and [35] of the Tribunal’s decision record (set out at [22] above) with the totality of the delegate’s decision, including the account of the hearing, to say that the full extent of the claims were overlooked. However this does not, on a fair reading, at least, of the Tribunal’s decision record, reveal jurisdictional error.
It must be remembered that the task for the Tribunal was to determine whether the applicant had a well-founded fear of persecution for a Refuges Convention reason if he were to return to Lebanon in the reasonably foreseeable future. What is set out at [34] and [35] must be read in the totality of the Tribunal’s decision record. The applicant’s focus on those two paragraphs alone is, in context, disingenuous.
The Tribunal had set out the applicant’s claims as they were expressed in his application for the protection visa ([20] at CB 169 to [23] at CB 171 – which included documents submitted in support), the content of the applicant’s statutory declaration ([24] at CB 171 to CB 173), and reference to further documents and extracts submitted by the applicant ([25] at CB 173 to CB 174).
What appears at [34] and [35] must be read in the context of what precedes it. It is clear that the Tribunal extracted and summarised the height of the applicant’s claims to fear persecutory harm. That is, that he feared harm from “Lebanese intelligence” because he had sold a car to a particular person of interest to them and had suffered harm in the past from them, including that he had been detained, interrogated, imprisoned without charge and that an attempt was made on his life (see in one respect further below).
The Tribunal was statutorily obliged to be satisfied that the applicant, in effect, met the Refugee Convention definition of “refugee” before a protection visa must be granted to him. Absent that level of satisfaction the visa must not be granted (s.65 and s.36(2) of the Act and SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 (“SJSB”), NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] – [5] and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
The Tribunal did not determine the review because of any inconsistencies in the applicant’s evidence, before the delegate or otherwise. Nor did it refuse the application because of any findings of lack of credibility. Simply, on what was before it, the Tribunal could not reach the requisite level of satisfaction such that the visa must be granted.
On at least a fair reading of its decision record, what was before it was the totality of the applicant’s claims. There is no reason to doubt that the Tribunal “had regard to the material referred to in the delegate’s decision, and other material available from a range of sources” ([19] at CB 169). The fact that the Tribunal summarised these claims in its “Findings and Reasons” does not mean, in the circumstances referred to above, that it did not have regard to the totality of the claims. Paragraph 19 (at CB 169) is in the following terms:
“The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.”
The Tribunal’s later reference at [33] (at CB 175):
“As the applicant did not attend an oral hearing, his claims could not be tested by the Tribunal. The Tribunal has only the information contained in the written material before it from which to make a determination.”
[Emphasis added.]
was said by the applicant now to show that the Tribunal did not have regard to what he said to the delegate at the interview with her which was otherwise before it in writing.

This must be rejected. There is no evidence before the Court to challenge the Tribunal’s clear statement that it determined the matter based on the “written material” before it. That plainly included the delegate’s decision record (here with reference to [19] at CB 169) which contained an extensive account of what was said to have occurred at that interview (CB 9.3 to CB 11.5). The applicant does not now say what additional claims were made at that interview and not recorded in the delegate’s decision record.
At least on a fair reading, the Tribunal’s lack of satisfaction was based on, and included, the delegate’s references to the interview. However, in my view it is not necessary to rely on a fair reading of the decision record to arrive at this conclusion. It is plain in the totality of the Tribunal’s presentation. But in any event a fair reading, that is one that does not scrutinise the record over-zealously with an eye attuned to error, achieves the same result (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
Nor does the applicant’s reference in submissions to s.414 of the Act assist him. It is the case that the Tribunal is required by that section to review the delegate’s decision. But the applicant has not explained before the Court how that compels the Tribunal to listen to any audio recording of the delegate’s interview. In the absence of any specificity from the applicant, the Tribunal’s reference to the delegate’s account is sufficient to address the evidence given at the interview.
The Minister’s reliance on Htun per Allsop J at 259 (with whom Spender J agreed) is appropriate and provides direction for the current case:
“The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration … It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act … make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.”
[Emphasis added by the respondent in written submission at [26].]
I should note that in the respondent’s submissions before the Court, and in reply to the applicant’s general complaint about the discrepancies found by the delegate in his evidence at the interview, the Minister made reference to the applicant’s claim, in his statutory declaration, to an attempt being made on his life in September 2009 by a member of the “Lebanese intelligence”. He claimed to have been shot in the face (see at [26] at CB 53 and CB 172).
At the interview with the delegate the applicant said that he had been shot at by a neighbour. When pressed he said that his neighbour had “been briefed by Lebanese Security” (CB 124.8). The delegate found the applicant’s account to be unsubstantiated and implausible (CB 124.10) and contradictory (CB 125.1).
The absence of any specific reference to that in the Tribunal’s “Findings and Reasons” does not mean, in the circumstances, that the Tribunal failed to deal with his claims in their totality. What happened at the interview with the delegate was there for the Tribunal to read, as it said it did. It was plainly part of the material considered by the Tribunal in its inability to reach the requisite level of satisfaction.
In all therefore ground one is not made out.

Ground Two: The Argument

Ground two asserts that the “Minister’s department” misdirected the Tribunal in relation to the “legal status” of, and the Tribunal’s “options in respect of”, certain documents provided to the Tribunal by the Secretary to the Minister’s department.
This is said to arise from the letter sent by the Minister’s delegate to the District Registrar of the Tribunal dated 24 May 2011 (see [8] above and at CB 131):
“NOTIFICATION REGARDING THE DISCLOSURE OF CERTAIN INFORMATION UNDER s 438 OF THE MIGRATION ACT 1958
I notify the Refugee Review Tribunal that paragraph 438(1)(b) of the Migration Act 1958 applies to the information in

folios 128 – 141 of file number CLF2010/74869.
In my view, this information should not be disclosed to the applicant or the applicant’s representative because it contains information affecting the personal privacy of third parties.
The disclosure of such information could have adverse consequences for another individual.
The Refugee Review Tribunal’s use and disclosure of this information is subject to the provisions of subsections 438 (3) and (4) of the Migration Act 1958.
…
Delegate of the Minister for Immigration and Citizenship.”
Section 438 of the Act was, at the relevant time, in the following terms:
“438 Refugee Review Tribunal’s discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a) the Minister has certified, in writing, that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 437(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
(2) If, in compliance with a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies, the Secretary:
(a) must notify the Tribunal in writing that this section applies in relation to the document or information; and
(b) may give the Tribunal any written advice that the Secretary thinks relevant about the significance of the document or information.
(3) If the Tribunal is given a document or information and is notified that this section applies in relation to it, the Tribunal:
(a) may, for the purpose of the exercise of its powers, have regard to any matter contained in the document, or to the information; and
(b) may, if the Tribunal thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the applicant.
(4) If the Tribunal discloses any matter to the applicant, under subsection (3), the Tribunal must give a direction under section 440 in relation to the information.”
The applicant’s attack contains a number of elements. First, while the terms of the letter purport it to be a “notification” under s.438(1)(b) of the Act, such notification is required to be given by the Secretary of the Department, not the Minister (see s.438(2) of the Act).
Second, the letter is signed by “Ann Kramer” as the “Delegate of the Minister …”. There is no indication that she was acting on behalf of the Secretary. There is nothing to contradict the signature block, with its reference to her being the Minister’s delegate, such as to say that she was acting with, or upon, any general direction from the Secretary.
Third, at the date of the notification no application for review had been made to the Tribunal.
Fourth, the stated reason for the notification was said to be that the subject information affected “… the personal privacy of third parties. The disclosure of such information could have adverse consequences for another individual”.
This does not appear to have any direct connection to the purpose of s.438(1)(b) of the Act. The submission was that there did not appear, nor was it explained, that there was any justification for the contemplating of an unspecified effect on a person’s privacy with the disclosure of information provided in confidence. All of the above may be allowed at the factual level. The difficulty for the applicant was that his submissions remained unclear as to how this revealed jurisdictional error on the part of the Tribunal, or how otherwise the process of the review conducted by the Tribunal was vitiated by this letter.

Ground Two: The Consideration

As Mr Smith submitted, if the concept of jurisdictional error is understood to include some breach of an inviolable limitation on the exercise of the decision maker’s (in this case, the Tribunal’s) power, then what is required, at least, is the identification of such an inviolable limitation. This is as a prerequisite to the consideration of whether it had been breached (relevantly, for jurisdictional error see Minister of Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1 at [82] per McHugh, Gummow and Hayne JJ). The applicant has not identified any such limitation.
I should also just note, nor did the applicant seek to assert that the Tribunal’s decision was vitiated in the way found in SZFDE& Ors v Minister for Immigration & Citizenship & Anor [2007] HCA 35; (2007) 232 CLR 189; (2007) 237 ALR 64 (“SZFDE”).
In any event, this is not a case where the jurisdiction of the Tribunal can be said to be “constructively unexercised” (SZFDE at [52]). Even if some error did occur on the part of the officer purportedly acting as the Minister’s delegate, or even if some failure on the part of the Secretary can be said to have occurred, that is that the Secretary, or someone on his behalf, should have sent the notification, it was not revealed in the applicant’s submissions. Nor was it otherwise evident how such an error or failure can be put upon the Tribunal. For example there was no suggestion, let alone evidence to indicate, any fraud was involved. Nor did the applicant properly explain how the sending of this letter to the Tribunal affected, or more properly impacted upon, the review conducted by the Tribunal.
While there was no dispute between the parties that the letter was sent to the District Registrar of the Tribunal, there is nothing to show that it played any part in the conduct of the review. It is quite plain, though it appears to have been ignored by the applicant now, that the reason the Tribunal affirmed the delegate’s decision was that the Tribunal was unable to reach the requisite level of satisfaction such that the visa must be granted (with reference to s.65 and s.36(2) of the Act and SJSB) (see at [35] above).
That circumstance arose because, having been put on notice of the Tribunal’s inability to reach a conclusion favourable to him, the applicant was invited to a hearing to give evidence and make his arguments as to why he should be granted a protection visa. The applicant did not attend.
Unlike in SZFDE, where the failure to attend the hearing was on the evidence found (at first instance – SZFDE & Ors v Minister for Immigration & Anor [2005] FMCA 1979) to have been as a direct result of the fraudulent conduct of the person who purported to be a registered migration agent and solicitor admitted to practice, there is nothing of that even suggested as arising from the impugned letter. Nor, in the circumstances, did the disposition of the application for review reach the state where there was any necessity to consider the material which was the subject of the letter.
At best, the applicant’s argument appeared to be that, while the letter purports to be a notification under s.438 of the Act, it was in fact not so, given the deficiencies already outline above (see [50] to [54] above).
Nonetheless, the letter appears to have been placed on the Department’s file (there was no application at that time for review to the Tribunal such that it can be said to have been actually sent to the Tribunal). The Tribunal subsequently said it had the Departmental file before it ([19] at CB 169). Therefore it can be inferred that the Tribunal saw this letter subsequent to the making of the application for review.
The applicant’s submission, ultimately, was that the letter’s references to “personal privacy” and “adverse consequences”, particularly given the unexplained generality of this “advice”, suggests some “sinister” aspect to the material on the applicant’s file such that it could influence the Tribunal’s thinking in a “subjective way” in deciding on the credibility of the applicant’s claims. That is, that the letter may give rise to the inference that the applicant is a person who may harm other people.
It must be said that, in the circumstance, the best that can be said about this submission is that it is fanciful.
First, the terms of the letter plainly refer to the privacy of third parties. There is nothing to suggest that, whatever the subject of the information, it had any relevance to the applicant. There would need to be something more to suggest otherwise.
Second, the Tribunal’s decision did not turn on any adverse credibility finding in relation to the applicant. As set out above, it turned on the Tribunal’s inability to reach the requisite level of satisfaction in circumstances where the applicant did not attend at the hearing.
Third, the implication in the applicant’s submission was to say that the Tribunal was misled as to the applicant’s character by the inference which may in turn be drawn from the letter. This was such, it is said, that the Tribunal may have been disposed against the applicant. Such an argument would require far more to even bring this to an assertion that, for example, an apprehension of bias on the part of the Tribunal existed.
In submissions the applicant sought to rely on Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 (“VEAL”). While the strength and scope of the analogy was vaguely expressed, the proposition appeared to be that the letter gave rise to the potential of the Tribunal drawing an adverse conclusion about the applicant’s character and future intentions on the basis that the letter acted in some way to create a “subconscious effect” on the Tribunal as to the applicant’s possible conduct.
The reasons set out immediately above apply equally to this part of the applicant’s submissions. Further, as Mr Smith reminded the Court, VEAL dealt with procedural fairness at common law. It dealt squarely with information adverse to the applicant contained in what was described as a “dob in letter”. The decision maker in that case did not tell the applicant of the existence of the letter, but said in the decision record, in finding adverse to the applicant’s credit, that it did not have regard to the letter. Ultimately the High Court found that, irrespective of this, the applicant was entitled as a matter of fairness to have been told of the existence of this letter.
As set out above, in the current case no finding as to credit was made. Nor were the terms of the letter on their face adverse to the applicant or his creditworthiness. Importantly, neither the credibility of the applicant nor of his claims were ever at issue. It was the insufficiency of what he had put in his application for a protection visa that resulted in the Tribunal falling short of reaching the requisite level of satisfaction ([36] to [37] at CB 175).
Here also, as Mr Smith submitted, any procedural fairness obligations arose in circumstances involving the giving of information to the applicant or putting him on notice of matters of such nature as to be adversely dispositive of his claims. These are matters found in Div.4 of Pt.7 of the Act (see as explained in Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252; (2010) 267 ALR 204).
Relevantly, those matters are dealt with in s.424A and s.425 of the Act. It is the case, with reference to the requirement now to identify an inviolable limitation in the exercise of its power, that such a limitation exists in both s.424A and s.425 of the Act. Breaches of both result in jurisdictional error being revealed.
In relation to s.424A of the Act, it was not engaged in the current circumstances (SZEFM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 78 at [23] per Bennett J, SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195 at [28] to [30] per Allsop J ).
In relation to s.425 of the Act, the applicant was invited to a hearing pursuant to that section (see CB 148 to CB 157). That invitation complied with all the relevant statutory and regulatory requirements (s.425, s.425A, the reference to s.426A, s.441A(4), s.441C(4), s.441G of the Act and r.4.35D of the Migration Regulations 1994 (Cth)).
The applicant did not attend at the hearing. While there is a suggestion that the applicant’s migration agent (and solicitor) did not receive the letter of invitation, it was open to the Tribunal to proceed to a decision pursuant to s.426A of the Act in circumstances where it was satisfied that the invitation had been properly effected and the applicant had the benefit of the prescribed period of notice of the hearing (see [26] to [30] at CB 176).
In any event, the applicant now makes no complaint in this regard before this Court.
During submissions some argument was directed to the nature and meaning of s.438 of the Act and, in part, its relationship with s.418.
Section 418 of the Act is concerned with the giving of documents to the Registrar of the Tribunal by the Secretary to the Minister’s department where an application for review of a delegate decision is made to the Tribunal. The terms of s.438 of the Act are set out at [49] above.
The applicant’s submissions were, as referred to above, that s.438(3) of the Act must be read in concert with s.438(2) (s.438(1) did not have relevance to the disposition of the current application). That is, that s.438(3) applies to any document given under s.438(2), and not otherwise. Given that the document did not fall within the requirements of s.438(2), because it was not given to the Tribunal in the way required (see [51] above), then this section did not apply to the current circumstances.
The Minister’s position was that the mere fact that the letter did not reflect the terms of s.438(1)(b) did not mean that the information did not fall within that section. The Minister submits that s.438(3) should be understood as relating to the giving of information to the Tribunal, say in compliance with s.418(3) of the Act. In circumstances where such information was given to the Tribunal, this required compliance with s.438(3). But, given that s.418 is not the only avenue by which information can be given to the Tribunal, it was therefore open to someone other than the Secretary, such as a delegate of the Minister, to give such information.
It must be said that ultimately this part of the argument before the Court is a diversion. Whether the giving of this information (by the Minister’s delegate) in the circumstances in which it was given meant that the information fell within s.438, or breached its requirements, or otherwise, does not assist in the resolution of this case.
First, the applicant’s ground did not rely on any such breach. The thrust of the complaint was that the Tribunal had information before it (in whatever fashion it was given) and was influenced by it. That attack is rejected as an avenue of revealing legal error on the part of the Tribunal for the reasons relevantly set out above.
Second, s.438(3) does not contain any compulsion on the Tribunal to have regard to the information. In the current case the Tribunal did not. No error is revealed, nor is the process before it vitiated, also for all the reasons relevantly set out above.
For what it is worth, I should observe that I agree with Mr Jones that s.438(3) should be read with s.438(2) of the Act. It is not just the giving of a document to the Tribunal to which regard must be had. The conjunctive “and” at s.438(3) makes it clear that the directions available under (a) and (b) of that sub-section are only activated if notification occurs that the section applied. That notification and its application flows from s.438(2)(a).

In any event, the applicant’s ground is not made out. Whatever the meaning and application of s.438 of the Act, whatever the circumstances of the giving of the document to the Tribunal by the Minister’s delegate, and in light of the applicant’s specific attack which focused on the alleged potential impact on the Tribunal, no jurisdictional error on the part of the Tribunal is revealed. Ground two is not made out.

Conclusion

For the applicant to be successful before the Court he would need to establish jurisdictional error on the part of the Tribunal. Jurisdictional error has not been revealed by either of his grounds put to the Court with the assistance of legal representation. Nor can it otherwise be discerned in the Tribunal’s decision. The application to the Court should be dismissed. I will make an order accordingly.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 27 June 2012