SZRFN v MINISTER FOR IMMIGRATION & ANOR
[2012] FMCA 1036
•21 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRFN v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1036 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – whether the Tribunal fell into jurisdictional error because there was a “delay” between the hearing and its decision being handed down – whether that “delay” caused denial of procedural fairness – whether the Tribunal misinterpreted s.429 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.353, 357A, 360, 414A, 418, 420, 422B, 425A, 426, 429, 441A, 441C, 441G, 476, Pt.7 Migration and Ombudsman Legislation Amendment Act 2005 (Cth), s.3, Sch.1 |
| Minister for Immigration and Citizenship v Li [2012] FCAFC 74 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 223 ALR 171 SZKJV v Minister for Immigration and Citizenship [2011] FCA 80 Minister for Immigration and Citizenship v MZYNN [2012] FCA 1177 SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49; (2006) 229 ALR 423 SZCSC v Minister for Immigration and Multicultural Affairs [2007] FCA 418 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 |
| Applicant: | SZRFN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 484 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 28 August 2012 |
| Date of Last Submission: | 28 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2012 |
REPRESENTATION
| Appearing for the Applicant: | Mr M Jones |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Appearing for the Respondents: | Mr O Jones |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 5 March 2012 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 484 of 2012
| SZRFN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 5 March 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 2 February 2012, affirming the decision of the delegate of the first respondent to refuse the applicant a protection visa.
Background
The applicant is a citizen of Egypt. He arrived in Australia on 29 November 2006 on a student visa. He returned to Egypt on two occasions, in August 2007 and May 2008 for a period of three months.
He applied for a protection visa on 4 January 2010 (Court Book – “CB” – CB 1 to CB 35 with annexures). He was assisted in that application by Mr Sam Issa, a registered migration agent (CB 29 and CB 32 to CB 35).
The applicant’s claims to protection were set out in a Statutory Declaration provided with his protection visa application (CB 2 to CB 4).
The applicant claimed to fear persecutory harm from the Egyptian authorities because of his claimed involvement with the political wing of the Islamic Brotherhood, dating back to a period prior to the parliamentary elections in Egypt in 2005. In particular, the applicant claimed that:
1)He had joined the political wing of the Islamic Brotherhood prior to the 2005 parliamentary elections, and was assigned as a personal assistant to the successful candidate representing his local area.
2)One week prior to the elections he was arrested by Egyptian “intelligence” and held in custody without charge for a period of one week to: “… ensure that I would not participate in the week leading up to the elections”. While in detention, he was physically abused and not permitted access to legal representation. He was released on the undertaking that he would not participate in any further elections, nor support the Islamic Brotherhood candidates.
3)Following his release he was constantly monitored by Egyptian “intelligence”. He was required to report monthly to the police about his activities and to sign a declaration that he had refrained from participating in any political activity. He was also subjected to interrogation and physical abuse, and was threatened with further detention. As a result of these reporting conditions, he feared leaving his home and was thus denied the opportunity of engaging in employment.
He decided to leave Egypt, in November 2006, to avoid further detention and abuse. His wife and children remained in Egypt. His wife later informed him that the authorities had placed a travel ban on her. Following his departure, Egyptian “intelligence” visited his family’s home on two occasions and questioned his wife about his activities.
In August 2007 the applicant said that he decided to return to Egypt to assist his wife to obtain a passport. He was detained by Egyptian “intelligence” at the airport for two days, and was beaten and interrogated. He was subsequently released without charge. While he remained in Egypt for three months he was required to report to the police monthly, and was again subjected to physical abuse and interrogation. Despite the assistance of their local parliamentary member, his wife was denied the issue of a passport. After three months he gave up hope of obtaining a passport for his wife and he left Egypt.
Six months later, the applicant again decided to return to Egypt as his wife was receiving “ongoing” visits from Egyptian “intelligence”. On arrival he was again detained at the airport and held in custody for a period of a week. He was subjected to abuse and interrogation. Again, during this visit, the applicant was unsuccessful in obtaining a passport for his wife. After three months the applicant again left Egypt as he was threatened with detention. His wife and children continued to be monitored and subjected to ongoing visits by “intelligence”.
He feared that he would suffer detention, interrogation and abuse if he were to return to Egypt again. Further, that that would be heightened in the lead up to the 2010 elections.
The Delegate
In a decision dated 6 April 2010, the delegate found that the applicant was not of “major concern” to the Egyptian authorities. The delegate doubted that the applicant had been detained at the airport in Egypt and found that the applicant’s claims as to his detention, and his account more generally, had been fabricated and were implausible (CB 70 to CB 71). The delegate was not satisfied that the applicant would be of adverse interest to the authorities if he were to return to Egypt (CB 71). Nor was the delegate satisfied that the applicant had a well-founded fear of persecution if he returned to Egypt (CB 71).
The Tribunal
On 29 April 2010, the applicant applied to the Tribunal for review of the delegate’s decision (CB 73 to CB 77). He continued to be represented by the same migration agent (CB 73 and CB 75). He was invited to attend, and attended, a hearing before the Tribunal on 28 May 2010 (CB 81 and CB 105). Prior to that hearing, further documents were also provided to the Tribunal on the applicant’s behalf by his representative (CB 86 to CB 97). Further documents were also provided post-hearing (CB 111 to CB 126).
A request was made by the applicant’s representative on 7 June 2010, for a further oral hearing to allow the applicant’s wife and legal representative in Egypt to give evidence on behalf of the applicant (CB 112 and CB 132). That request was denied. The Tribunal said it relied on s.429 of the Act, which requires the hearing to be private, and that the Tribunal could not ensure communications from the witnesses in Egypt would so remain (CB 110, CB 128 and CB 131).
A further request was made, on 15 June 2010, for the Tribunal to reconsider its decision to refuse oral evidence from the applicant’s wife and legal representative in Egypt (CB 132). The Tribunal reaffirmed its original decision (CB 131).
On 16 June 2010, a further hearing was requested for the applicant to provide oral responses to address the Tribunal’s concerns raised at the hearing (CB 129). The Tribunal denied that request (CB 128). Further written submissions and supporting documents were also provided to the Tribunal (CB 133 to CB 170). In its decision, dated 2 February 2012, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
Application to the Court
The application to the Court is in the following terms:
“1. The Tribunal fell into jurisdictional error by denying the Applicant procedural fairness.
Particulars
The Tribunal conducted a hearing in the matter on 28 May 2010. The Tribunal did not deliver a decision in the case until some 20 months later. The Tribunal based its decision on its assessment of the Applicant’s credibility. The length of the delay between the last time the Tribunal met with the Applicant and the time of decision was such that the Tribunal was not in a position to properly assess the Applicant’s credibility at that time and thus was a denial of procedural fairness.
2. In the alternative, relying on the same particulars, the Tribunal failed to perform the statutory duty required of it by s 420(1) of the Migration Act 1958.
3. The Tribunal also fell into jurisdictional error by misdirecting itself as to whether it could hear from witnesses overseas, as requested by the Applicant.
Particulars
The Applicant requested the Tribunal to take evidence from his wife and lawyer, by telephone from Egypt. The Applicant stated that he would waive any protection of privacy in respect of taking such evidence. The Tribunal determined that it was prevented by s 429 of the Act from taking evidence in a situation in which it could not ensure that the communication would remain private, and that s 429 imposed a statutory obligation on the Tribunal which could not be waived. In doing so, the Tribunal misinterpreted the relevant statutory provision.”
Before the Court
Mr M Jones appeared for the applicant. Mr O Jones appeared for the first respondent. In addition to the Court Book, the Court took into evidence the applicant’s Exhibit 1 (“AE1”) being an extract from the “Refugee Review Tribunal Annual Report 2010-11”.
The Issues
There are two issues for consideration in this case. First, whether the Tribunal fell into jurisdictional error because of what is said to be the long delay in it making its decision in this matter. Second, that the Tribunal’s refusal to hear from the applicant’s witnesses and, in particular that the reason for that refusal, was based on a misapplication of the relevant law.
Grounds One and Two - Delay
The factual basis for the applicant’s complaint is said to be that there was a period of some 20 months between the hearing the Tribunal conducted with the applicant, on 28 May 2010, and when it made its decision, on 2 February 2012.
The applicant relies on ss.420 and 422B(3) of the Act to argue that the relevant statute requires the Tribunal to operate in a “fair” and “just” way (Minister for Immigration and Citizenship v Li [2012] FCAFC 74 (“Li”)). The Tribunal’s failure to comply with that statutory requirement, by was said by the applicant to be a denial of procedural fairness, and reveals jurisdictional error.
The applicant also relies on NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 223 ALR 171 (“NAIS”) where the High Court found that the “inordinate delay” in that case amounted to procedural unfairness. The applicant directed the Court to the following judgments in that case:
1)Gleeson CJ at [11]:
“The fact that the impairment resulted from the default of the Tribunal is important. Many events, outside the control and influence of the Tribunal, might occur to make it more difficult to evaluate the claims of an applicant. That does not make the procedure unfair. On the other hand, when the Tribunal, exercising the control over its own procedures given to it by the Act, without explanation or justification, and without any fault of an applicant for review, draws out those procedures to such an extent that its capacity to discharge its statutory obligations is likely to be materially diminished, and there is nothing in the Tribunal's reasons to displace that likelihood, then a case of procedural unfairness arises.”
2)Kirby J at [102]:
“Conclusion: invalidating delay: The result of this analysis is that prima facie the delay that happened before the Tribunal, in the provision of its reasoned decision in this case, was materially excessive. On the face of things, it deprived the appellants of a ‘decision’ of the type required by the Act. It rendered suspect the reasons, findings and references to the evidence contained in the Tribunal's ‘decision’. The ‘decision’ was not reached by a process that was procedurally fair and just to the appellants. By reason of the delay, the ‘decision’ was presumptively flawed by jurisdictional error.”
[Emphasis in the original. Footnote omitted.]
3)Callinan and Hayden JJ at [161]:
“Sometimes the pressures of work on administrators and courts can be very great. The sufficiency of the resources and the number of people to do the work depend upon the funds which governments are prepared to expend on them. Not all people have the same capacity for efficient and expeditious work, including decisiveness itself, as others. Care accordingly needs to be taken before condemning what may, in some cases, at first sight appear to be cases of inordinate delay. Nonetheless, nothing, apart from bias or unfairness, is more likely to bring public administration and the law into disrepute than inexplicable prolonged delay in the disposition of matters. Delay of that kind immediately and inevitably raises questions. How earnest was the consideration given to the matter? Did the maker of the decision truly apply his or her mind to it? Did he or she find it too hard? Was the decision-maker distracted? Was the decision in the end made out of desperation, or a realization that it had at last to be given, regardless of its correctness or otherwise? All of these questions can be asked but not satisfactorily answered in this case. That they cannot does not mean that the decision of the Tribunal can on that account alone be set aside. But it does mean that a reviewing court should scrutinize the decision, if not with a disposition against it, at the very least, with scepticism, especially if, as the decision in this case does, it depends in any way at all upon the assessment of competing claims of fact and credit, and impressions based on demeanour.”
In SZKJV v Minister for Immigration and Citizenship [2011] FCA 80 (“SZKJV”) Reeves J at [33] relevantly said about NAIS:
“In summary, I consider the critical principles arising from these various decisions of the majority in NAIS are these: where adverse credibility findings, based solely or significantly on demeanour, are combined with a lengthy or significant delay in delivering the decision containing those findings, in the absence of some reasonable explanation for that delay, it can be inferred that the procedures followed were unfair, in the breach of natural justice sense, thereby giving rise to jurisdictional error.”
The applicant, respectfully, says that this does not limit any finding of jurisdictional error to situations where adverse credibility findings are based solely, or significantly, on demeanour. The applicant notes that this aspect “figured only” in the joint judgment of Callinan and Hayden JJ in NAIS, and only at least in part.
The applicant stressed the relevance of s.414A(3) of the Act which was inserted into the Act on 12 December 2005 (Migration and Ombudsman Legislation Amendment Act 2005 (Cth), No.141, 2005 (“the Amending Act”), s.3 and Sch.1). In essence that requires the Tribunal to make a decision on any application for review within 90 days of receipt from the Secretary to the Minister’s department of relevant documents pursuant to s.418 of the Act. The applicant relied both on “AE1” (at p.27), and the Explanatory Memorandum to the Amending Act (at [43] of the Explanatory Memorandum) to argue for the importance of this provision.
The applicant’s position is that the delay in this case exceeded the 90 day period by a factor of seven. That was said to be exceptional in light of the statutory requirements. Requirements, which the applicant emphasised, were not even in existence at the time the High Court gave its judgment in NAIS. This was said to therefore further enhance the applicant’s position.
Consideration
I do not agree with the applicant that the Tribunal’s decision reveals jurisdictional error by reason of any delay.
First, as was, in my respectful view, made clear in SZKJV (see in particular at [44], and see also [37] – [38], per Reeves J (a matter on appeal from this Court), whether jurisdictional error is revealed as a result of delay, and in a situation which involves s.414A, consideration must be given to the circumstances of each case.
Second, in the circumstances of this case it is, in my view, misleading to rely, as the applicant does, on the “delay” between the hearing and the date of the decision as a period of 20 months. It is not the case here that the Tribunal conducted the hearing, then nothing relevant occurred for 20 months.
The circumstances reveal that the Tribunal hearing was indeed held on 28 May 2010 (CB 105 and [13] at CB 176). The applicant has not produced any evidence before the Court to challenge the Tribunal’s account of what occurred at that hearing as is set out in its decision record.
That account reveals that the Tribunal canvassed the applicant’s claims and evidence in some considerable detail. This also included references to information relevant to the review. The Tribunal noted at [86] (at CB 190) that:
“… [t]he applicant’s representative requested that the applicant be given until 11 June 2010 to provide comments or a response to this information in writing. He said that part of their submissions might involve further evidence from the applicant’s lawyer in Egypt with regard to the reasons why the applicant’s wife had not been granted a passport.”
On 7 June 2010, the applicant’s representatives wrote to the Tribunal requesting a further hearing (CB 111 to CB 112). No submissions of substance were made in support of that request, although a number of documents were attached to the letter of request. In any event, a Tribunal officer responded by letter of the same date (CB 110). (The request for a further hearing was refused.)
On 16 June 2010, the representative again wrote to the Tribunal (CB 129), in the following terms (CB 129):
“Dear Sir/Madam,
RE: [The applicant]
We refer to your facsimile of even date and note the Tribunal’s position.
We are instructed that in the absence of oral evidence from the witnesses our client would like an opportunity of a further hearing to provide responses to the adverse information.
Yours faithfully
Sam Issa
Solicitor”
The Tribunal again refused the request for a further hearing, and reminded the applicant that, at the hearing, his representative had asked for the opportunity to put his response to the adverse information in written submissions (CB 128).
By letter dated 15 June 2010, the representative pressed for a further oral hearing (CB 132). The Tribunal’s letter in response, again, explained the Tribunal’s concerns as to privacy in refusing the request for another hearing. The Tribunal also noted that the time for the applicant making written submission had passed (CB 131).
Submissions (albeit, relatively brief) were ultimately provided on 17 June 2010 (CB 133). Attached to those submissions were further documents which appear to a large part to be newspaper or media reports (CB 135 – CB 147). Even further documents were sent by the applicant on 7 October 2011 (CB 153). These included a police report and further media reports (CB 153 – CB 170).
A further letter from the respondents, dated 23 November 2011, appears at CB 152. Its context, with the reference to an earlier letter of 2 November 2011, is not explained. No such letter is reproduced in the bundle of relevant documents (the Court Book). Further, the reference in the letter of 23 November 2011 to “15 Jan 2011” can only be read as “15 Jan 2012”. In essence it states that the “representative” would be out of Australia until that date and requested the Tribunal’s “cooperation in this matter” (CB 152.5). It can only be assumed that the representative was asking for the Tribunal’s “cooperation” in awaiting for his return before proceeding further.
What is abundantly clear is that the applicant’s charge of “delay” now is, in the circumstances, disingenuous. Plainly the applicant’s representative was still submitting material to the Tribunal up until, at least, November 2011. The Tribunal responded to each letter from the representative. Submissions made by the applicant were received and considered by the Tribunal ([87] at CB 190 to [99] at CB 192). Even without the “curious” letter of 23 November 2011, these circumstances cannot be said to represent a “delay” by the Tribunal in the sense that it did nothing, or nothing happened, in the progress of the applicant’s case.
Third, I note that the applicant submitted to the Court that: “It should not be understood… that Reeves J [in SZKJV] is limiting any finding of jurisdictional error to cases where the adverse credibility findings are based solely or significantly on demeanour…” (at [13] of the applicant’s submissions). I did not respectfully understand Reeves J to have said anything in that judgment to have required this submission from the applicant in this case. Plainly, and respectfully, I note that Reeves J was referring to findings made by this Court at first instance (see at [37] and [76] of SZKJV per Barnes FM, and its source in NAIS).
Fourth, it is important to note, in light of relevant authorities (as set out above), that the other aspect relevant to the circumstances of this case is that whatever the emphasis on demeanour, and the applicant’s argument in the current case that jurisdictional error can arise in cases of delay even beyond a situation based “significantly or solely” on demeanour, the Tribunal’s findings in the current case were not based on any such factor.
Fifth, the compulsion in s.414A(1) of the Act must be seen in light of s.414A(2) of the Act. Any failure to comply with the 90 day period does not affect the validity of the Tribunal’s decision. The reasoning behind this statutory situation becomes clear when regard is had to the parts of “AE1” which the applicant referred the Court (pg.41 of “AE1”). Amongst the reasons given for exceeding the 90 day period was the “submission of further material after the hearing”. That occurred in the current case. In these circumstances, it is to the relevant authority that the Court must turn.
In this light the current case, as the Minister submits, is governed by SZKJV, particularly given the similarity in the circumstances as they relate to the Tribunal’s analysis. The Tribunal’s conclusion in the current case was based on its difficulty in accepting that the applicant was telling the truth (CB 110). That was variously informed by the Tribunal’s relevant findings that the applicant’s evidence was contradictory, inconsistent with independent evidence before it, and internally inconsistent. Further the Tribunal found that the applicant’s explanations for this, and important parts of his evidence (e.g. the refusal of a passport to his wife), were implausible. Further, the applicant’s return to Egypt on two occasions, his delay in applying for protection, and his failure to advance explanations at the hearing which were later raised on his behalf by his representative in written submissions.
None of these findings was based on demeanour. As in SZKJV, the Tribunal’s reasons in the current case were detailed, well reasoned and comprehensive. Apart from the mere fact of the alleged “delay”, the applicant has made no attack on the actual reasoning of the Tribunal. A reasoning which, in addition to the other relevant elements, contains a level of detail that contradicts the assumption implicit in cases of delay, that it is procedurally unsafe for a decision-maker to proceed to a decision in circumstances where the passage of time may lessen the accuracy of memory. Matters such as demeanour may be subject to such vagaries, and may be seen to be represented by bland assertions as to what may have occurred at the hearing in the giving of evidence.
In the current case, the “delay” (even discounting the representative’s letter of November 2011) is about four months. But even if the “delay” had been in the order of 20 months, in all the circumstances, no jurisdictional error is apparent. In short, the Tribunal’s findings as to the applicant’s credibility were not based in any part on the applicant’s demeanour, let alone solely on demeanour. Further, I cannot see that the delay in this case was lengthy, significant or inordinate as claimed. In any event, a reasonable explanation for the period taken is apparent.
While before the Court the applicant says that the unfairness is not restricted to cases of delay where demeanour is a factor. What was not satisfactorily explained, beyond the insistence on the delay itself, was what was actually unfair and unjust in the actual circumstances of this case. (The only such possibility is dealt with below under the heading of “Ground Three - Witnesses”.) The Tribunal’s consideration of the applicant’s claims was detailed and comprehensive. Its rejection of the applicant’s factual account of claimed events in Egypt, which formed the basis of his claims to fear persecutory harm, was supported by reasoned argument. It cannot be said that the Tribunal failed to engage with any aspect of the applicant’s claims or evidence in such a way as to reveal that, the time taken between hearing and decision resulted in some deficiency in the process leading to, and arriving at, the decision made.
Since the hearing of this matter, Gray J handed down judgment in Minister for Immigration and Citizenship v MZYNN [2012] FCA 1177 (“MZYNN”), a matter on appeal from this Court. One of the issues in that matter was the question of delay between the date of the Tribunal hearing and the making of the decision.
With reference to relevant authorities, including NAIS, his Honour said at [32] of MZYNN:
“It is abundantly clear from the authorities that the occurrence of a lengthy delay between a hearing or the receipt of submissions and the making of a decision does not itself constitute error (whether jurisdictional error or other error) on the part of the decision-maker. What is required is the demonstration of some flaw in the process of arriving at the decision, that can reasonably be attributed to the passage of time. This is so whether the decision-maker is a court, a tribunal, or some other administrative official. It is true, as the federal magistrate said, that Heydon J in Aon said that 10 months was an excessive period to reserve an interlocutory judgment on issues relating to the preparation of a case for trial. His Honour’s stern statement followed an express recognition of the absence of a ‘good explanation’ for the delay. His Honour went on at [153] to link the delay with deficiencies in the reasons for judgment, namely:
failure to refer to the affidavit evidence or the cross-examination of ANU’s solicitor, failure to appreciate the gulf between what counsel for ANU said were the reasons for the amendment and what the evidence on the point was, and failure to identify what factors, if any, there were which explained ANU’s failure to appreciate and raise the new claims earlier.
Those deficiencies clearly had more to do with his Honour’s view that the interlocutory judgment should be reversed than did the mere fact of delay. Heydon J appears to have been the only member of the High Court in Aon to deal with the delay issue.”
[Emphasis in original.]
In relation to NAIS, his Honour at [33] of MZYNN said:
“In NAIS, the link between delay and jurisdictional error on the part of the Tribunal was that the Tribunal based its decision largely on the absence of credibility on the part of the applicant for a visa with whose case it was dealing. The concern of the court was with the ability of the Tribunal to recall anything about the way in which that applicant had given evidence when several years had passed between the hearing at which the evidence was given and the publication of the Tribunal’s decision. Even so, two members of the High Court dissented. Even where credit is not the issue, there may be a danger that the passage of time will affect unconsciously the process of decision-making and lead to the making of the decision that is easiest to make and express. See Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189 (2004) 140 FCR 17 at 74. The authorities were reviewed by the Full Court in Haros v Linfox Australia Pty Ltd [2012] FCAFC 42 (2012) 287 ALR 507 at [26]- [30]. The Full Court emphasised the need for caution in finding that a judge has denied fairness to a losing party by reason of delay. The Full Court had regard to the practical means that a judge might have of refreshing his or her memory about the evidence and the arguments, so as to ensure that the judgment is sound.”
[Emphasis in original.]
The reasons in this judgment were substantially drafted before reading MZYNN. I respectfully draw on his Honour’s judgment to reinforce what is set out above. A strengthening which comes with the force of binding authority on this Court.
In essence even if the period of delay were to the extent pressed by the applicant now, the applicant failed before the Court to point to, let alone demonstrate, some flaw in the actual process leading to the decision which is attributable to the delay. The matter of the witnesses does not fall into this category (his ground three is deficient in asserting jurisdictional error. It is dealt with below).
In the current case the applicant, in effect, relies simply, and only, on what he says is the “extensive delay”. In light of the authorities that is not sufficient to make out jurisdictional error. That was the very approach adopted by this Court at first instance in MZYNN. That approach was rejected by Gray J on appeal.
In the circumstances, grounds one and two are not made out.
Ground Three - Witnesses
The applicant’s complaint is that the Tribunal misinterpreted s.429 of the Act in finding that it imposed a statutory obligation on the Tribunal, which could not be waived. That led to the Tribunal refusing the applicant’s request to take evidence from his wife and his lawyer in Egypt.
Section 429 of the Act is in the following terms:
“Review to be in private
The hearing of an application for review by the Tribunal must be in private.”
Following the hearing the applicant’s representative submitted to the Tribunal (on 7 June 2010) that the applicant’s wife and lawyer in Egypt were willing to give evidence. That was said to be in regard to “adverse issues” raised by the Tribunal at the hearing (CB 111.5).
The Tribunal’s response is at CB 110. I should note that while that response is signed by an officer of the Tribunal, it was, at least, drafted with the involvement of the Tribunal member, if not at his direction (see CB 110.7).
On 15 June 2010, the representative repeated the request (CB 132). The Tribunal’s response was given on 16 June 2010 (CB 131). It included:
“…
Your representatives have repeated their request for a further oral hearing to allow witnesses in Egypt to provide supporting evidence and to ‘clarify some of the issues raised by the Tribunal’. Your representatives have said that you are aware of the risks associated with taking this course but have said that they believe that it is in your interests.
As referred to in the Tribunal’s letter dated 7 June 2010, the hearing of an application for review by the Tribunal must be in private: see section 429 of the Migration Act 1958 and the decision of the High Court in SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 CLR 486. This is a statutory obligation imposed on the Tribunal: is not a privilege which an applicant before the Tribunal can waive. The Member reviewing your case has asked me to advise you that, for the reasons given in the Tribunal’s letter dated 7 June 2010, he does not believe that he can ensure that any communication by telephone with your witnesses in Egypt would remain private, particularly given that you claim to fear persecution by the Egyptian authorities.
…”
The Tribunal member’s consideration is also explained in the decision record ([94] at CB 191 to CB 192):
“On 16 June 2010 the Tribunal responded to the applicant noting that the obligation imposed by section 429 of the Act was a statutory obligation imposed on the Tribunal, not a privilege which an applicant before the Tribunal could waive, and that for the reasons given in the Tribunal’s letter dated 7 June 2010, I did not believe that I could ensure that any communication by telephone with the applicant’s witnesses in Egypt would remain private, particularly given that the applicant claimed to fear persecution by the Egyptian authorities. The Tribunal noted that the time which the applicant had been allowed to comment on or to respond to the information which I had given him at the hearing had passed.”
The applicant complains that the Tribunal was of the view “… that s.429 could not be ‘waived’ by an applicant” ([26] of the applicant’s submissions). The charge is that the Tribunal did not therefore properly consider the request, for example, by turning its mind to the circumstance that even if the authorities were to “tap” the phone in Egypt, that did not provide an explanation as to why the Tribunal could not still provide “privacy” to the giving of the evidence at the hearing.
The applicant argues that in SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49; (2006) 229 ALR 423 (“SZAYW”) (with reference to [26] of that judgment) the High Court contemplated an applicant before the Tribunal choosing to have another person present at the hearing, a person who might otherwise be excluded from a hearing held in private. The result, the applicant says, was that an applicant may waive the privacy provision in s.429 of the Act.
Further, the applicant relies on SZCSC v Minister for Immigration and Multicultural Affairs [2007] FCA 418 (“SZCSC”) per Mansfield J (at [47]) to argue that the Tribunal did not give “genuine” consideration to his request:
“The RRT declined the request because it ‘would have no guarantee about who was at the other end of the line.’ I must express concern at that reason. It would be applicable to almost every request to take evidence from an overseas witness. There are opportunities then in a telephone hearing to probe witnesses as to background facts which they might be expected to know to test their identity or their relationship with the particular applicant. However, more importantly to the RRT was its concern – based on the appellant’s evidence – that telephones in Belarus may be tapped so that the RRT thought the witnesses may be endangered by giving telephone evidence. That was a proper concern for the RRT, although if the proposed witnesses were prepared to undergo the risk it is hard to see why it should lead to the RRT declining to hear their evidence. However, on balance, I do not think it has been shown that the RRT failed to give genuine consideration to that request, so it has not been shown to have failed to comply with s 426(3).”
In the current case the applicant says that the Tribunal did not refer to any evidence to support the claim that hearing from the witnesses would undermine the privacy of the hearing. Nor was there any evidence referred to in support of any concern that the telephone call would be “intercepted”, and whether there was any way to “circumvent” any such occurrence.
The applicant, again and additionally, relies on s.420 of the Act and Li to argue some failure of fairness.
Consideration
First, it is difficult to see how SZAYW assists the applicant. As the Minister submits, even the extract from that judgment relied on by the applicant now makes it clear that the circumstances in that case and the current case are different. In SZAYW, the matter commented on by the High Court involved a third person accompanying the applicant to a Tribunal hearing for “moral support” (see SZAYW at [7]). In those circumstances, and where the Tribunal had no reasonable grounds to object, it was said that the presence of the third party would not destroy the privacy of the hearing. Importantly, for current purposes, the High Court found it unnecessary to consider the Tribunal’s powers to exclude such a person.
In the current case, the applicant plainly did not ask for the presence of his wife and/or his lawyer for the purpose of their giving him “moral” support. Further, the request, given that they were in Egypt and the hearing was in Australia, would have required communication by some electronic means. There was no suggestion by the applicant’s representative that the wife and lawyer would travel to Australia. In the applicant’s wife’s case that would have been difficult given that the applicant insisted, before the Tribunal, on his wife’s difficulty in obtaining a passport.
Second, nor was the request that they give evidence made pursuant to s.426 of the Act, such as to engage s.426(3) of the Act:
“(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.”
The Tribunal’s invitation to hearing complied with ss.425A and 426(1) of the Act. The date of the invitation, with reference to s.426 of the Act, was 10 May 2010 (CB 80 – CB 82). The period contemplated in s.426(2) of the Act ended on 17 May 2010. (The letter was, on the best evidence available, sent by facsimile on 10 May 2010 to the applicant’s authorised recipient (s.441A(5)(a) of the Act.) The applicant, therefore, received notification at the end of that day (ss.441C(5) and 441G of the Act). The notification of the willingness of the applicant’s wife and lawyer to give evidence was sent (by facsimile) to the Tribunal on 7 June 2010 (CB 111).
That immediately distinguishes the current case from SZCSC where the consideration was given in the context of the Tribunal’s reasons of its obligation in s.426(3) of the Act. (See SZCSC at [29].)
That is not to say, however, that what the Court said in that case would not be of general direction, or where appropriate, assistance to this Court in circumstances that are not further distinguishable. The Court’s concern in SZCSC was with that Tribunal’s refusal to take evidence because of the difficulty of identifying the witnesses who were overseas and to be heard from by telephone. That was not a matter relevant to the current Tribunal’s consideration.
Third, the Court in SZCSC did endorse the Tribunal’s concern in that case that the witnesses may be endangered by any communication with the Tribunal. That was held by the Court to be a “proper concern”. The applicant in this case now relies on the Court’s view in SZCSC that the witnesses themselves would be in a position to judge whether the communication was safe, and how much they could say.
The applicant’s submissions ignore that part of the reason advanced by the Tribunal in the current case, at least on a fair reading, was the integrity of the process in which it was engaged ([92] at CB 191). The Tribunal noted that the applicant had claimed to fear harm from the Egyptian authorities. Its concern that the communication with the witnesses may not remain private was “particularly” put in the context of the integrity of the review. While that may have included some concern as to the situation of the witnesses, when read with [91] (at CB 191) of the Tribunal’s analysis, it is tolerably clear that the Tribunal’s concern was with the conduct of the review before it, the privacy of the process, and the impact of any such breach of privacy on the conduct of the review.
I also understood the applicant in the current case to argue, in support of his ground, the assertion that the Tribunal failed “to give genuine consideration to the Applicant’s request” ([30] of the applicant’s submissions). Before the Court it was submitted that the Tribunal did not properly consider “the request for the witnesses to give evidence”. It was argued that, even if the telephone were to be “tapped”, there was no consideration as to how privacy could otherwise be provided. Nor was that a reason to justify refusal of hearing from the witnesses.
It must be said that this comes dangerously close to, if not oversteps the line of, asking the Court to determine how it would have exercised the discretion. That is, as opposed to whether the Tribunal’s consideration was not unreasonable, and was “fair” and “just”.
A number of further matters must be noted. First, the Tribunal did consider the applicant’s request to hear from the witnesses. It did not reject the request in any capricious or arbitrary fashion.
Second, the question is not whether the consideration was “proper” in the sense explained by the applicant. That is, that the Tribunal’s explanation was adequate (or inadequate as was submitted by the applicant). The relevant question, flowing from Li, was whether the Tribunal provided a mechanism that was “fair” and “just’.
That directs attention to ss.425 and 426 of the Act which appear, along with s.422B of the Act, in that Part of the Act concerned with the Tribunal’s conduct of the review (Div.4 of Pt.7). As set out above, s.426 of the Act (a part of Div.4) was not engaged. Further, unlike in Li, a hearing was conducted in this case. This was not a case involving a failure to agree to a request for an adjournment of the hearing date.
Further, in the current case the Tribunal’s refusal was of a request for a “second” hearing where the applicant’s witnesses could give evidence. The relevant circumstances of this case include the applicant’s own evidence to the Tribunal that when he had returned to Egypt in 2008 he had “done so” because (at [20] – [21] at CB 177) :
“20. … because the Intelligence had continued to visit his family’s home and his wife and children had feared for their lives. The applicant said that he had once again been detained by the Egyptian Intelligence at the airport, this time for a period of a week, and that he had been physically abused and interrogated. He said that he had once again failed to obtain a passport for his wife. He said that he had left Egypt after three months because he had been threatened with detention.
21. The applicant said that his wife and children were still being visited and monitored by the Intelligence. He said that he feared that if he returned to Egypt he would be detained, interrogated and physically abused by the Egyptian authorities. He said that the forthcoming parliamentary elections in 2010 would place him at increased risk of monitoring and arrest by the Intelligence.”
Plainly the applicant’s circumstances, as he himself presented them, were that his wife and his children feared for their own lives and that this was not necessarily because of anything they had done, but because of their association with him.
The Tribunal saw it, in effect, as inconsistent for the applicant to assert this evidence and then, at the same time, to insist on a further hearing where the obligation of privacy, statutorily imposed, could not be ensured. The assumption of risk by the witnesses, communicated by the applicant, and even the applicant’s own assumption of risk, does not act of itself to displace the statutory compulsion in the current circumstances. The applicant may now complain that he wanted his witnesses to give evidence but, in the circumstances, there was nothing unreasonable, unfair or unjust, in the Tribunal giving weight to the statutorily imposed obligation of privacy.
These circumstances also include the situation where the witnesses had provided statements to the Tribunal. Further, and importantly, the complete failure by the applicant and his representatives to explain to the Tribunal why another hearing was necessary, as opposed to the utilisation of the opportunity already afforded to him by the Tribunal to provide responses to its concern in written submissions. After all that is what the applicant’s representative had originally asked for at the hearing. The applicant’s change of heart following the hearing was never explained. In addition, it was never explained, for example, just what further the applicant’s wife and the lawyer could add orally at a hearing to the applicant’s claim that there were “… ongoing legal proceedings for the issue of an Egyptian passport…” to the applicant’s wife (at item 5 at CB 133 – the request for the witnesses to give evidence).
The applicant is not correct to say that his witnesses were denied the opportunity of giving their evidence. The applicant’s wife’s declaration, and the solicitors “statement” were both put before the Tribunal ([39] – [40] at CB 180), and were considered by the Tribunal (see at [120] at CB 197 – [122] at CB 198).
In terms of s.425 of the Act, and procedural fairness, the issues in the review were raised with the applicant at the hearing. The applicant has not produced evidence to the Court to challenge the Tribunal’s account of what occurred at the hearing. The refusal of a “further” hearing in circumstances where all the issues were discussed at the hearing and the applicant given the opportunity to respond was not unfair, unjust, or even a failure of procedural fairness pursuant to s.425 of the Act (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152).
The applicant and his representative asked for a further opportunity to respond in writing. The Tribunal gave them a reasonable opportunity to do so. The part to be played, subsequently, by the applicant’s witnesses in responding to the Tribunal’s concerns was not explained by the applicant and his representative. That is, beyond mere assertion that they could provide the antidote to the Tribunal’s concerns in relation to the “information” it had provided to the applicant at the hearing (see [92] – [93] at CB 191 and CB 111, CB 129 and CB 132).
The applicant relies on s.420 of the Act to argue a breach of procedural fairness in that the Tribunal was not “fair” or “just’ in its refusal to hear from the witnesses. Plainly, what the Full Federal Court said in Li in relation to s.353 of the Act with reference to the Migration Review Tribunal applies equally to s.420 of the Act, given it is the “parallel” provision in relation to the Refugee Review Tribunal (see at [28] at Li).
The applicant asserts a denial of procedural fairness because the Tribunal, in circumstances where it refused him the opportunity of another hearing, did not agree to hear from his witnesses. The applicant relies on s.422B(3) of the Act. The Full Court in Li said relevantly (at [30] of Li):
“As we have already observed, necessarily, it will also mean that the MRT has not conducted its core function in a way which is ‘fair’, which is a requirement of s 353 and, for that matter, of s 357A(3) of the Act. The statement in s 357A(1) of the Act that the division of the Act in which s 357A(3) appears is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters dealt with in that division is not a palliative for a failure on the part of the MRT to discharge its ‘core function’.”
That is, that the Tribunal’s “core function” is to review an “RRT Reviewable decision”. In conducting the review the Tribunal must act in a way that is “fair” (s.353, the parallel to s.420 of the Act), and “fair” and “just” (s.357A(3), the parallel to s.422B(3) of the Act).
In Li the issue was whether the Tribunal in that case had unreasonably refused an adjournment of a hearing, the invitation to which was extended pursuant to s.360 (the parallel to s.425) of the Act. The Court said (at [29] of Li):
“Consideration of the statutory context in which s 353 and s 357A(3) appear does not negate the proposition that an unreasonable refusal of an adjournment can constitute jurisdictional error on the part of the MRT. The MRT’s ‘core function’ is to review an MRT reviewable decision such as that made in respect of, the respondent, Ms Li: s 348. In so doing, it must invite her to appear: s 360. The appearance afforded by the MRT to an applicant by that invitation must be meaningful, not perfunctory, or it will be no appearance at all. The MRT is given power to adjourn proceedings from time to time: s 363(1)(b) of the Act. An unreasonable refusal of an adjournment of the proceeding will not just deny a meaningful appearance to an applicant. It will mean that the MRT has not discharged its core statutory function of reviewing the decision. This failure constitutes jurisdictional error for the purposes of s 75(v) of The Constitution.”
[Emphasis in the original.]
In the current case I cannot see, in all the circumstances, that the Tribunal’s refusal of a further opportunity for a hearing was unreasonable or unjust. The Tribunal gave careful consideration to the applicant’s request. Its reasons for refusing it, in the circumstances, were cogent and were available to it.
For the reasons set out above I cannot see that the Tribunal failed to observe its “core function” as that term was explained in Li. I note additionally, given the different factual basis of the current case, that to the extent that ss.425, 426(3) and 429 of the Act are part of the exhaustive statement of the natural justice hearing rule in relation to the matters dealt with in Div.4 of Pt.7 of the Act (Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252), that s.426 of the Act was not engaged and s.429 of the Act was applied. In all ground three is not made out.
Conclusion
The grounds as pleaded in the application, and explained, do not reveal jurisdictional error on the part of the Tribunal. Therefore, accordingly, the application should be dismissed. I will make an order to this effect.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 21 November 2012
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