SZQXX v Minister for Immigration & Anor
[2012] FMCA 415
•18 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQXX v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 415 |
| MIGRATION – Review of recommendation of Independent Merits Reviewer – whether the applicant was denied procedural fairness – whether the Reviewer was required to put to the applicant the contents of a “dob in” letter – application dismissed. |
| Constitution, s.75 Migration Act 1958 (Cth), ss.5, 36, 46A, 189, 195A, 476 |
| Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 Kioa v West (1985) 159 CLR 550 Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298 Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Minister for Immigration and Citizenship v SZIZO & Ors (2009) 228 CLR 627 Parker v Comptroller-General of Customs (2009) 83 ALJR 494 |
| Applicant: | SZQXX |
| First respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | J BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | SYG 2810 of 2011 |
| Judgment of: | Emmett FM |
| Hearing date: | 4 May 2012 |
| Date of Last Submission: | 4 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Gormly (direct access) |
| Appearing for the Respondents: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The proceeding before this Court, commenced by way of application filed on 8 December 2011, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $6,240.
NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2810 of 2011
| SZQXX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| J BARTLETT IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
The application is brought before this Court in its original jurisdiction pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) which gives the Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
This is an application for judicial review of conduct leading to the recommendation by J Bartlett in her capacity as Independent Merits Reviewer (“the Reviewer”), dated 12 November 2011 and handed down on 30 November 2011, that the applicant not be recognised as a person to whom Australia has protection obligations.
The applicant seeks an injunction restraining the first respondent from relying on the recommendation of the second respondent. The applicant also seeks a declaration that, in recommending to the first respondent that the applicant is not a person to whom Australia has protection obligations, the second respondent made an error of law in that the second respondent failed to observe the requirements of procedural fairness.
The applicant claims to be a citizen of Afghanistan and of Shia faith and Hazara ethnicity.
Prior to considering the proceeding before this Court, these reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims for refugee status and a summary of the Reviewer’s conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations.
Background
On 10 July 2010, the applicant arrived in Australia at Christmas Island as an offshore entrant.
On 21 July 2010, an entry interview was conducted with the applicant by an officer of the Department of Immigration and Citizenship (“the Department”).
On 5 November 2010, the applicant made a request for a Refugee Status Assessment (“RSA”).
On 14 February 2011, an officer of the Department found that the applicant did not meet the criteria for being a refugee and consequently was not a person to whom has protection obligations.
On 7 March 2011, the applicant applied for an Independent Merits Review of the RSA.
On 30 November 2011, the Reviewer recommended that the applicant not be recognised as a person to whom Australia has protections obligations.
On 8 December 2011, the applicant filed an application in this Court seeking judicial review of the Reviewer’s conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations.
Legislative framework
The legislative framework relating to judicial review of the conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations is accurately and comprehensively explained in the submissions of the solicitor for the first respondent, Mr Markus, as follows:
“2. The provisions of the Migration Act 1958 (the Act) directly relevant to the Refugee Status Assessment (RSA) and Independent Merits Review (IMR) processes are ss 5, 46A and 195A.
3. Section 5 relevantly provides the following definitions:
"offshore entry person" means a person who:
(a) entered Australia at an excised offshore place after the excision time for that offshore place; and
(b) became an unlawful non-citizen because of that entry.
…
"excised offshore place" means any of the following:
(a) the Territory of Christmas Island; …
…
"excision time", for an excised offshore place, means:
(a) for the Territory of Christmas Island--2 pm on 8 September 2001 by legal time in the Australian Capital Territory …
4. The applicant, being a non-citizen, who entered Australia at Christmas Island without valid travel documents at a time after the relevant ‘excision time’, and thereby became an unlawful non-citizen[1] is an 'offshore entry person'.
[1] See s 14(1) of the Act.
5. Section 46A relevantly provides:
(1) An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non-citizen.
(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3) The power under subsection (2) may only be exercised by the Minister personally.
…
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
6. By operation of s 46A(1), unlawful non-citizens are unable to apply for a valid protection visa.[2] However, s 46A(2) provides that the Minister for Immigration and Citizenship (the Minister) has a discretionary power to determine that an offshore entry person may make a valid application for a visa of a class specified if the Minister thinks that it is in the public interest to do so. This is commonly referred to as a decision to 'lift the bar' on the prohibition contained in s 46A(1). Subsection 46A(3) provides that this power can only be exercised by the Minister personally. Subsection 46A(7) of the Act makes it clear that the power vested in the Minister under s 46A(2) is a non-compellable power.
[2] s 46A(1) of the Act
7. Similarly, section 195A relevantly provides:
Persons to whom section applies
(1) This section applies to a person who is in detention under section 189.
Minister may grant visa
(2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3) In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5) The power under subsection (2) may only be exercised by the Minister personally.
…
8. By operation of s 195A(2), the Minister has a personal discretionary power to grant an offshore entry person who is in detention a visa of a particular class if the Minister thinks that it is in the public interest to do so. Subsection 195A(5) provides that this power can only be exercised by the Minister personally.
9. Since late 2001,[3] successive governments adopted various policies to deal with offshore entry persons. In developing these policies, and the processes which were adopted by the Department of Immigration and Citizenship (the Department) to implement these policies, care was taken to ensure that Australia does not breach its international obligations; i.e. that persons who are assessed as refugees under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (the Convention), as modified by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the Protocol), are not returned to a country where that person has a well-founded fear of persecution.
[3] Following the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) (the Excision Act), which inserted a majority of the provisions referred to above into the Act.
10. As part of this process, the Department developed an offshore refugee status assessment process.
11. Until the election of the Labor Government on 24 November 2007, most such processing occurred, as part of the so called “Pacific solution”, on Nauru, but some processing also occurred on Manus Island and on Christmas Island.
12. In February 2008, the Government announced that asylum claims of future unauthorised boat arrivals would be processed on Christmas Island. It also announced that it had initiated discussions with Nauru over the closure of the centre on Nauru, and that it was commencing discussions with Papua New Guinea concerning the future of the processing centre on Manus Island.
13. On 29 July 2008, the Minister announced that the Government had decided to strengthen and enhance the RSA process and that the enhancements would include:
13.1 provision of publicly funded independent advice and assistance (a commitment that has since been met under the Immigration Advice and Application Assistance Scheme, which is available for the initial RSA and any subsequent independent merits review);
13.2 independent merits review for people receiving unfavourable refugee status assessments;
13.3 improved procedural guidance for departmental officers conducting refugee status assessments; and
13.4 external scrutiny of the RSA process by the Immigration Ombudsman.
14. In Plaintiff M61/2010E v Commonwealth and Ors (2010) 243 CLR 319 (M61), the High Court determined that s 46A(2) and 195A(2) constituted two distinct steps that the Minister could personally exercise: firstly, to consider whether to exercise the discretion to lift the bar, and secondly, to exercise that discretion.
15. The High Court has interpreted the former Minister’s announcement of 29 July 2008 that all unlawful non-citizens who entered Australia at Christmas Island making claims for protection would be assessed according to the new RSA procedure as the Minister having decided to take the first of those steps, and as the Minister having required the Department 'to undertake the enquiries necessary to make an assessment and, if needs be, review the conclusions reached'.[4] That is to say, the announcement has been interpreted as encompassing 'a decision by the Minister to consider whether to exercise either of [the powers conferred by s 46A or s 195A] in respect of any offshore entry person who makes a claim that Australia owes the claimant protection obligations' as well as 'a direction [pursuant to which direction the Department has established and implemented the RSA and IMR procedures] to provide the Minister with advice about whether power under s 46A or s 195A can or should be exercised'.[5]
16. The High Court held that an RSA, and any subsequent IMR, constitute conduct 'under and for the purposes' of the Act on the basis that the conduct occurs after the Minister 'has begun the task of considering whether to exercise power under either s 46A or s 195A'[6] and 'for the purposes of informing the Minister of matters ... relevant to the decision whether to exercise one of those powers in favour of a claimant'.[7] The High Court also held that the conduct directly affects the rights and interests of a claimant by prolonging detention.[8]
17. The High Court held that the fundamental question to which the RSA and IMR processes were directed is whether the criterion stated in s 36(2) of the Act, as a criterion for grant of a protection visa, was met.[9] Whether that criterion is met depends on the terms of s 36(2) itself , as well as on the various other provisions of the Act that explain or define concepts within it, or mould its application in particular circumstances. These include ss 36(4)-(7), 91R-91U, and the definitions of relevant words and phrases in s 5.
18. The High Court concluded 'that the assessment and review must be procedurally fair and must address the relevant legal question or questions'.[10] This conclusion was said to follow from the findings referred to above and to reflect 'well established' principles governing the limits of the exercise of a statutory power affecting rights or interests.[11]
19. As the RSA and IMR processes do not arise from the valid application of a visa and therefore are not reviews conducted by the Refugee Review Tribunal, the procedural fairness obligations prescribed in Part 7 Division 4 of the Act do not apply. Instead, the principles of common law procedural fairness apply.[12]
Jurisdiction and relief
20. The Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution, that is, to grant a writ of mandamus or certiorari, or injunction.[13]
21. In M61, the High Court held that mandamus will not issue to compel the Minister to reconsider exercising the power given by ss 46A or 195A, and that the unavailability of mandamus meant that there was no utility in granting certiorari to quash the IMR recommendation.[14] The High Court left open the issue of whether an injunction was available.
22. The first respondent submits that while an injunction is necessary to enliven the jurisdiction of this Court,[15] should the Court be minded to grant relief, an injunction is not necessary or appropriate in circumstances where there is no immediate threat of the applicant being removed from Australia in reliance of the IMR recommendation. Instead, the Court can be satisfied, as the High Court was in M61,[16] that a declaration that the recommendation is affected by legal error will be sufficient for the Department and Minister to not rely on a recommendation.”
[4] M61 (2010) 243 CLR 319 at [70].
[5] M61 (2010) 243 CLR 319 at [66].
[6] M61 (2010) 243 CLR 319 at [67].
[7] M61 (2010) 243 CLR 319 at [73].
[8] M61 (2010) 243 CLR 319 at [76].
[9] M61 (2010) 243 CLR 319 at [89].
[10] M61 (2010) 243 CLR 319 at [78].
[11] M61 (2010) 243 CLR 319 at [73].
[12] M61 (2010) 243 CLR 319 at [91].
[13] s 476 of the Act.
[14] M61 (2010) 243 CLR 319 at [99]-[100]
[15] Darabi v Minister for Immigration and Citizenship [2011] FMCA 371 at [27]-[31]
[16] M61 (2010) 243 CLR 319 at 360-361 [101]-[104].
The applicant’s request for Refugee Status Assessment
The applicant provided a Statutory Declaration in support of his request for a RSA in which he stated:
a)He left Afghanistan based on a fear of being executed by the Pashtoon or the Kuchis due to false accusations laid against him by his cousin.
b)He had returned to Afghanistan from Iran to reclaim his portion of the land owned by his father and two brothers.
c)In the applicant’s absence, his cousin had been farming this land.
d)When the applicant told his cousin that he intended to reclaim his land, his cousin became very angry.
e)His cousin spread the rumour that he was involved in the killing of Kuchis in the Beshood area which had taken place soon after his arrival in Afghanistan from Iran in 2007.
f)The applicant invited elders to come to his village to discuss the land issue and they told the applicant’s cousin to give up the land.
g)The applicant’s cousin initially said he would think about it but behind the scenes he was looking to get rid of the applicant.
h)When the applicant confronted his cousin about the land issue a fight broke out and they had to be separated.
i)The applicant’s cousin then went to a neighbouring Pashtoon area where he repeated his claims against the applicant.
j)The Pashtoons in this area believed the applicant’s cousin’s claims after he swore on the Koran.
k)A Pashtoon man, led by another man who knew where the applicant lived, then came to the applicant’s village and as the applicant was not there, told the applicant’s wife that he wanted the applicant to see the regional Pashtoon elder.
l)Upon his return, the applicant consulted two of the village elders and they warned him not to see the regional Pashtoon elder as his life would be in danger.
m)The applicant’s cousin’s wife then told the applicant’s wife that the applicant’s cousin had made a false claim against him and that they should leave as the applicant’s life was in danger.
n)The applicant remained in hiding for three months while he made arrangements to leave Afghanistan because if his cousin knew where he was he would have found the applicant and taken him to the Pashtoons.
o)If the applicant returns to Afghanistan he fears being killed by the Pashtoons or the Taliban and does not think that the government can protect him.
Independent Merits Review and decision
On 3 March 2011, the applicant lodged an application for review of the RSA finding by the Reviewer.
The applicant provided further documents in support of his review application.
The applicant was interviewed by the Reviewer on 12 October 2011.
The decision of the Reviewer is accurately summarised by the solicitor for the First respondent in his written submissions as follows:
“4. At the interview between the applicant and the second respondent on 12 October 2011, the second respondent discussed with the applicant the fact that she had received photographs purported to be of him. The second respondent commented that the photographs did not appear to be relevant and that she would not be taking them into account (RD147, at [35]). The first respondent agrees that the second respondent did not discuss with the applicant the existence or contents of the dob in letter found at RD128.
Findings of the reviewer
5. The second respondent found that the applicant provided a consistent account of his experiences and accepted that fear motivated his departure from Afghanistan (RD148 at [39]).
6. The second respondent did not accept that the country information showed that Hazaras supported, or were perceived to have supported, the Afghan government or foreign troops (RD149 at [46]). The Reviewer did not accept that the applicant’s circumstances gave rise to actual or perceived political opinions of support of or association with the government or foreign troops. Accordingly, the Reviewer found that there was not a real chance in the reasonably foreseeable future that the applicant will be persecuted by reason of actual or imputed political opinions (RD150 at [47]).
7. The second respondent accepted the applicant’s account of the land dispute, but was not satisfied that the false accusation by the applicant’s cousin caused the Pashtuns-Kuchis to target the applicant for reasons of imputed political opinion and race, or for any other Convention reason (RD150 at [50], RD153 at [55]). Instead, whilst the second respondent accepted the applicant’s claim that a dispute has or will arise between the applicant and his cousin over the division of the inherited land, she concluded that this would be motivated by self interest in circumstances of an existing familial dispute, and not for a Convention reason (RD151 at [51]).
8. The second respondent accepted that there were historical land and natural resources disputes between Pashtun Kuchis and settled Hazara farmers, however she found that these disputes were not for reasons of race and religion or any other Convention related reasons. Further, the Reviewer found that any Taliban involvement would not be for the essential and significant Convention reasons (RD152 at [54]).
9. The second respondent also found that the applicant would not be seriously harmed in the reasonably foreseeable future because of his Sayyed race (RD153 at [57]).
10. The second respondent accepted that the applicant is a member of the minority ethnic and religious groups of Sayyed, Hazara and Shia, and noted that they continued to face some discrimination. However, the second respondent concluded that none of the authoritative independent reports identified members of these groups as generally subjected to serious harm for a Convention related reason. (RD154 at [60]-[61]).
11. The second respondent also found that the applicant would not be denied the protection of the Afghan State for a Convention reason (RD155 at [64]).”
The proceeding before this Court
The applicant was represented before this Court by Mr Julian Gormly of counsel.
Mr Gormly confirmed that the applicant relied on the ground contained in an amended application filed on 4 April 2012 as follows:
“That the decision of the second Respondent (the reviewer) was affected by legal error in that:
1. The second respondent (the reviewer) did not afford procedural fairness to the applicant in that the reviewer did not bring to the attention of the applicant or allow the applicant an opportunity to comment on information which was credible, relevant and significant.
Particulars
· The information was contained in a ‘dob in’ letter apparently sent from Norway;
· The information bore upon whether the applicant was entitled to a protection visa and included the allegations of the applicant’s membership of the Mojahedin in the Islamic Movement Party of Afghanistan, contact with the Taliban when the Taliban were in power, involvement in various criminal activities including robbery and a major role in the smuggling of narcotics from Afghanistan to Iran, a working relationship with the Mafis (mafia) in Afghanistan, in and an alleged desire to continue his illegal activities in Australia as being the reason for his decision to come to Australia;
· The applicant was not made aware of the dob in letter or its contents until after the reviewer’s report;
· Procedural fairness required the reviewer to put the substance of the information in the dob in letter to the applicant prior to the reviewer’s report to allow him to comment.”
The “dob-in” letter was received by Department of Foreign Affairs and Trade on 27 September 2010 and referred to the Department on 30 September 2010. The “dob-in” letter is otherwise undated and anonymous. Counsel for the applicant summarised the letter as containing the following allegations which were denied by the applicant:
a)The applicant was a member of the Mojahedin in the Islamic Movement Party of Afghanistan;
b)The applicant committed robberies in Kabul and other places;
c)When the Taliban was in power the applicant obtained a Pakistani ID;
d)The applicant played a role in smuggling narcotic drugs to Iran;
e)The applicant was in contact with the Taliban;
f)The applicant has been involved in illegal activities; and
g)The applicant wants to continue these illegal activities and that is why he decided to go to Australia.
Mr Gormly submitted that the letter revealed intimate knowledge of the applicant’s immediate family and the applicant’s intentions as well as the other serious allegations referred to above.
The letter also came with some photographs. The Reviewer stated in her decision that she put some photographs and an envelope to the applicant in the course of the interview on 12 October 2011 and that the applicant thought the sender was his step-mother with whom he had a “rivalry”. He recognised himself in some of the photographs. The Reviewer told the applicant that the photographs did not appear to be relevant to his claims “in as much as not appearing to be relevant to the conflict which he stated had arisen with his cousin.” The Reviewer then reaffirmed that she would not be taking them into account in considering the applicant’s oral evidence of fears of returning to Afghanistan. The Reviewer made no mention of a “dob-in” letter
Prior to making her decision, the Reviewer wrote to the applicant’s advisor on 25 October 2011, inquiring as to whether there was anything further that the applicant would like to have taken into account before the Reviewer made recommendations to the Minister and, if so, could it please be forwarded in writing by no later than 11 November 2011. No response was received to that letter.
Counsel for the applicant, Mr Gormly, read an affidavit of the applicant, affirmed 4 April 2012, which annexed a copy of the “dob-in” letter and stated that the applicant did not know of the existence of the letter until he saw the documents in the book of relevant documents tendered and marked Exhibit 1A. The applicant also deposed that none of the allegations summarised at paragraph [19] above, were put to him by the Reviewer during the interview on 12 October 2011.
Mr Gormly submitted that, ultimately, the Reviewer accepted that a false rumour had been made against the applicant but found that this was part of a land dispute which was not Convention related; that the applicant would not be imputed to have a political opinion for the alleged killing; and, that the Taliban’s involvement in the natural resource dispute between the Hazara’s and the Kuchi was not Convention related. Mr Gormly conceded that the Reviewer did not have to rely on the contents of the letter in making any of those findings.
However, Mr Gormly submitted that the allegations raised in the “dob-in” letter provided an alternate and independent basis for rejecting the applicant’s claims for protection from those relied on by the Reviewer.
Mr Gormly submitted that the information in the “dob-in” letter clearly bore on whether the applicant was entitled to a protection visa as it was credible, relevant and significant information. In support of that submission, Mr Gormly referred the Court to Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 (“VEAL”) at 95-99. Relevantly, at 95, the Court referred to the passage of Brennan J in Kioa v West (1985) 159 CLR 550 at 628-629, where Brennan J stated as follows:
“… in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.”
Mr Gormly submitted that the information in the “dob-in” letter was clearly credible, relevant and significant and for that reason should have been put to the applicant for comment. Mr Gormly submitted that because the information in the “dob-in” letter was credible, relevant and significant to the inquiry the Reviewer could not ignore it (see VEAL at 99). Mr Gormly submitted that because procedural fairness is concerned with procedures rather than outcomes, the Reviewer was required to determine what was credible, relevant and significant information before the final decision is reached. Mr Gormly submitted that, although the Reviewer had reached her conclusion on different bases, the Reviewer could not put the information in the “dob-in” letter aside until she had reached her conclusion on other bases. He submitted that procedural fairness demanded that the applicant, in those circumstances, was entitled to know what was said against him in the letter.
The solicitor for the first respondent, Mr Markus, submitted that, read in context, VEAL did not require the contents of the “dob-in” letter to be put to the applicant. Mr Markus submitted that the “dob-in” letter formed no part of the Reviewer’s reasons for refusing the applicant a protection visa. Mr Markus submitted that the “dob-in” letter could only have been relevant to the applicant’s credibility and the Reviewer did not make adverse credibility findings in respect of the applicant. Mr Markus submitted that in VEAL, the allegations contained in the “dob-in” letter related directly to the issues upon which the Reviewer determined to affirm the decision under review, particularly the appellant’s credibility.
I accept that the allegations contained in the “dob-in” letter were intended to undermine the applicant’s credibility in a general sense. However, the applicant’s credibility was not an issue for the Reviewer who accepted the entirety of the applicant’s claimed series of events, but concluded that they were not Convention related.
Mr Markus also submitted that there was no practical unfairness to the applicant in the failure of the Reviewer to bring to the applicant’s attention the existence of the letter.
In Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298 (“Dagli”), the Full Court of the Federal Court at [91] referred with approval to reasons of Hely J in Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069 (“Tuncok”) where his Honour said at [34]:
“… If the applicant was not informed of the case which he had to meet, that is sufficient to establish ‘practical injustice’ without the applicant having to prove what he would have done had he been informed of that case…”
Counsel for the applicant submitted that the notion of practical unfairness involved working backwards from the decision to characterise the unfairness and that, in any event, there is sufficient practical unfairness if an applicant was not informed of the case that he has to meet (see Dagli at [91]). Mr Gormly submitted that the effect of Dagli was that there was no obligation on the applicant to provide evidence of a practical unfairness.
In VEAL, the Court said that what is credible, relevant and significant information must be determined by a decision-maker before the final decision is reached and that the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made.
Mr Markus submitted that the line of authority referred to by Hely J in Tuncok and Dagli related to cases where the assertion of denial of procedural fairness also provided evidence of adverse consequences.
Mr Markus referred to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (“Lam”), where the applicants claimed to have a legitimate expectation that a procedure foreshadowed in correspondence would be followed. However, Gleeson CJ rejected that claim and stated that no practical injustice had been shown because the applicant had not demonstrated any loss of opportunity to advance his case. Mr Markus submitted that the relevance of Gleeson CJ in Lam was to demonstrate, that in the absence of evidence of adverse consequences, there was no breach of procedural fairness.
Mr Markus submitted that the law today is that, in the absence of practical unfairness, there is no denial of procedural fairness and that in the present case the applicant has conceded the absence of any practical unfairness. I raised with Mr Gormly what the Reviewer could have done had the “dob-in” letter been put to the applicant, beyond not making any adverse credibility finding and having no regard to the letter. Mr Gormly agreed that there was little else the Reviewer could have done but maintained his submission that that was not sufficient to excuse the Reviewer from failing to put the “dob-in” letter to the applicant.
I accept the submission of Mr Markus that, in light of the way in which the Reviewer made her decision, no practical unfairness could have existed in not putting to the applicant a document that was not given any credence by the Reviewer.
Mr Markus referred the Court to Minister for Immigration and Citizenship v SZIZO & Ors (2009) 228 CLR 627 (“SZIZO”) at 640 where the Court held that the rules of procedural fairness under the Act are to designed to ensure that an applicant for review is enabled to properly put his or her case at the hearing; but that a failure to comply with the rules of procedural fairness will require consideration of whether, in the events that occurred, an applicant was denied natural justice. In SZIZO, the Court found there was no denial of natural justice in the circumstances of the case arising out of a failure to take a procedural step.
In Parker v Comptroller-General of Customs (2009) 83 ALJR 494 at 498, French CJ confirmed the proposition that fairness is not an abstract concept and is essentially practical and that when one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. Chief Justice French referred to Lam in support of that proposition.
In the case before this Court, as in is SZIZO, the procedural unfairness complained of had no practical unfairness and, therefore, there was no denial of natural justice.
The only issue to which the “dob-in” letter could have gone was the credibility of the applicant. Where the Reviewer made no adverse credibility findings in respect of the applicant and made no mention of the “dob-in” letter in the decision, the only reasonable inference open to the Court, and that I make, is that the Reviewer did not have any regard to the “dob-in” letter. In such circumstances, I am satisfied that there was no denial of procedural fairness that resulted in any denial of natural justice.
However, even if I am wrong, for the reasons referred to above, I would refuse to grant the applicant relief as there would be no utility in doing so because, at the highest, the Reviewer could only have no had regard to the letter and made no adverse credibility findings in respect of the applicant. Both of these findings the Reviewer has already made.
Conclusion
In the circumstances, the Reviewer’s conduct leading to the recommendation that the applicant not be recognised as a person to whom Australia has protection obligations was done according to law.
Accordingly, the proceeding before this Court should be dismissed with costs.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 18 May 2012
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