SZRNY v Minister for Immigration

[2013] FCCA 197

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRNY v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 197

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – whether the Tribunal erred in failing to consider complementary protection provisions which came into effect after the date of the Tribunal decision but before decision properly notified to the Applicant – when the application for a protection visa was finally determined – whether the Tribunal erred in seeking access to the Applicant’s Facebook account.

Legislation:
Migration Act 1958 (Cth), ss.5, 36, 411, 412, 414, 424, 424A, 425, 427, 430, 430A, 430D, 439, 441A, 476, 477
Migration Amendment (Complementary Protection) Act 2011 (Cth)

Cases Cited:
Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45
Minister for Immigration and Citizenship v SZQHI [2012] FCAFC 160
Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25; [2012] FCAFC 131
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328
Pongrass Group Operations Pty Ltd v Minister for Planning (2007) 156 LGERA 250; [2007] NSWLEC 638
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668
Semunigus v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 96 FCR 536; [2000] FCA 240
Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2
SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58
SZQCN v Minister for Immigration & Anor [2011] FMCA 606
SZQOY v Minister for Immigration & Anor [2012] FMCA 289
Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39; [2000] FCA 1817

Applicant: SZRNY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1278 of 2012

Judgment of: Judge Barnes

Hearing date: 5 February 2013

Date for Last Submissions: 2 April 2013

Delivered at: Sydney

Delivered on: 7 May 2013

REPRESENTATION

Applicant: In person

Counsel for the Respondents: Mr Kaplan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. A writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the second respondent made on 12 March 2012 in Tribunal case number 1110684.

2. A writ in the nature of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent made on 16 June 2010. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1278 of 2012

SZRNY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application to review a decision of the Refugee Review Tribunal dated 12 March 2012 affirming a decision of the delegate of the First Respondent not to grant the Applicant a protection visa.

2. The Applicant is a citizen of Pakistan who arrived in Australia in February 2010 and applied for a protection visa in March 2010.  The application was refused.  The Applicant sought review by the Tribunal and on 6 October 2010 the Tribunal (differently constituted) affirmed the delegate’s decision.  The Applicant sought review in this Court and the matter was remitted to the Tribunal to be determined according to law.  It is that reconsideration that is the subject of these proceedings.

3. On 18 October 2011 the Tribunal wrote to the Applicant acknowledging the remittal by this Court and advising him that the case would be re-allocated to a member who may seek further information, invite his comments or response to particular information, invite him to a hearing and/or make a decision.  Future references to the Tribunal are to the Tribunal as reconstituted.

4. On 2 November 2011 the Tribunal received a notification of change of address and authorisation letter from the Applicant advising that he would be representing himself and would like to receive all correspondence at a specified home address in Sydney (the Sydney address). 

5. On 2 February 2012 the Tribunal received a completed Change of Contact Details form in which the Applicant advised a new residential and postal address in the Newcastle area of New South Wales (the Newcastle address). 

6. On 9 February 2012 the Tribunal wrote to the Applicant at the Newcastle address inviting him to a Tribunal hearing on 7 March 2012.  The Applicant attended the Tribunal hearing.  The only evidence before the Court as to what occurred in that hearing is the Tribunal’s account in its reasons for decision. 

The Tribunal decision

1. The Tribunal affirmed the delegate’s decision on 12 March 2012.  In the course of its reasons for decision the Tribunal summarised the Applicant’s claims as made at various times, including in his original protection visa application, in a statutory declaration sworn by him on 28 June 2010 and in a written submission from his former migration agent to the Tribunal as originally constituted dated 29 August 2010 and sent to the Tribunal on 15 September 2010.  The Tribunal also referred to various documents provided by the Applicant in support of his application and a 2010 report of a mental health clinician containing a “psycho social assessment” of the Applicant as having symptoms consistent with a diagnosis of Depression and Adjustment Disorder.  It summarised his oral evidence in a Departmental interview of 9 June 2010, at the first Tribunal hearing on 21 September 2010 and at the Tribunal hearing on 7 March 2012. 

2. The Applicant claimed that he was a medical practitioner who had worked in Peshawar in Pakistan.  He claimed that on four occasions between July 2008 and January 2009 he had been ordered by Lashkar-e-Islam, a militant organisation, to assist in treating its injured soldiers.  He claimed that on each occasion he disobeyed these orders and was required to pay large fines which his brother ultimately paid on his behalf. 

3. The Applicant claimed that approximately one month after the fourth approach he left his village for Lahore, where he worked in a hospital.  He claimed that in about October 2009 he was informed by staff at the hospital that two bearded men, whom he suspected were members of Lashkar-e-Islam, had come to the hospital looking for him and that his brother had advised him that Lashkar-e-Islam were pursuing him in Lahore.  He resigned from his employment.  He claimed he worked in another hospital for about three months, before leaving Pakistan for Australia in February 2010.

4. The Applicant claimed to fear persecution at the hands of Lashkar-e-Islam due to his failure to assist that organisation.  He claimed that members of Lashkar-e-Islam had executed another doctor, Dr Rafiq and had attacked his brother-in-law’s house after he refused to assist the organisation.  At the hearing on 7 March 2012 the Applicant also told the Tribunal that his brother had recently been held captive by Lashkar-e-Islam for one year because he had helped the Applicant escape from Pakistan and was looking after the Applicant’s wife and children.

5. In its findings and reasons the Tribunal first addressed the Applicant’s medical condition.  It expressed satisfaction that the Applicant had been given a “genuine opportunity” to appear to give evidence and present his case and that his medical condition had “not affected his ability to meaningfully participate in the hearing or present his case in writing”. 

6. The Tribunal found that the Applicant had “not been truthful in his evidence”.  It had regard to several matters, including the fact that the Applicant’s claims had “expanded from the initial application to his most recent submissions”.  It gave the example that in his initial protection visa application the Applicant had failed to refer to the attack on his brother-in-law and the killing of his friend, Dr Rafiq, despite the fact that he claimed they had been harmed in similar circumstances for their failure to assist or work for Lashkar-e-Islam. 

7. In addition, the Tribunal had regard to the fact that in his initial application the Applicant had stated only that his brother had informed him that he suspected that he had been discovered in Lahore, but in subsequent claims had referred to two men visiting the Lahore hospital where he worked.  The Tribunal addressed the Applicant’s explanation to the previous Tribunal for his failure to mention the claims about men visiting the Lahore hospital in connection with his protection visa application, in particular that he did not have an adviser when he lodged his protection visa application.  He also claimed at the March 2012 Tribunal hearing that he believed he could address these matters later.  However the Tribunal rejected these explanations having regard to the significance of such event and the fact that the Applicant was clearly well-educated with a good knowledge of the English language. 

8. The Tribunal also took into account the fact that the Applicant had first raised the claim that his brother had been kidnapped and kept in captivity for one year at the March 2012 hearing.  The Tribunal was of the view that “[t]his incident [was] of utmost significance to the applicant’s claims”.  It found that “[g]iven that one of the reasons the previous Tribunal rejected his claims was his failure to provide the details of all the incidents in his application, it [wa]s unthinkable that the applicant would not consider the need to refer to his brother’s capture and release prior to the [Tribunal] hearing, in the somewhat lengthy period that his application was before the second Tribunal”.

9. The Tribunal also found that the Applicant’s explanation in relation to events between the first approach to him by Lashkar-e-Islam (which he claimed occurred in July 2008) and his departure for Lahore in January 2009 was implausible.  It recorded the Applicant’s claim that he was first approached in July 2008, and told to be present on the battlefield and that his name would be put on the list of people who would treat Lashkar-e-Islam injured soldiers, but that he did not obey and a fine was imposed.  He claimed he was approached again in August 2008 and told he had to go with Lashkar-e-Islam the next day but, again, was absent and avoided going with them and was fined.  He claimed he was next approached in October 2008, failed to comply again and was fined for disobeying the order.  Finally, he claimed “he was approached for the fourth time in January 2009 and charged a larger sum following the decision of a Jerga”.  However the Tribunal had regard to the fact that “[a]t the same time the applicant claim[ed] that others, including his brother in law and Dr Rafiq, had been killed or injured for disobeying orders or refusing to cooperate” with Lashkar-e-Islam.  The Tribunal did not consider it plausible that the Applicant would be allowed to fail to comply with the orders of Lashkar-e-Islam “continuously and repeatedly” and “that no action would be taken against him other than increasing fines”.  It observed that he was not detained or forcefully taken to a training camp or battlefield or to provide medical services.  The Tribunal did not accept the Applicant’s explanation that he “did not refuse to cooperate but gave [Lashkar-e-Islam] hope”.  It was of the view that it “would have been obvious to Lashkar-e-Islam that the applicant had not complied with their orders in at least four occasions, over a period of six months, and that he was not cooperating”.  The Tribunal did not accept that “Lashkar-e-Islam would wait until [the Applicant] left the village or until he travelled to Australia before coming to his house and telling his family to “produce him” or be targeted”.  

10. The Tribunal also found it significant that the Applicant had attempted to move overseas before the time he claimed Lashkar-e-Islam first approached him.  It noted that his passport indicated that he had made United Kingdom visa applications in March 2008 and July 2008.  It found the Applicant’s initial evidence to it that he could not recall the first such visa application to be “odd”, given his detailed description of other events that occurred at the same period.  It also found that his later statement that “he may have applied to study overseas” was at odds with his claim that he could not leave Pakistan earlier or apply for any other visa because study overseas would require money and he had insufficient funds to travel and establish residence.  The Tribunal had regard to the fact that in his statutory declaration of 28 June 2010 the Applicant stated that he had applied for a UK visa in July 2008 “because he wanted to escape from joining Lashkar-e-Islam and he thought he could seek protection”.  However it found that the fact that the Applicant had also applied for a UK visa in March 2008 (before he claimed to have been approached by Lashkar-e-Islam) “suggest[ed] that seeking protection and avoiding Lashkar-e-Islam was not the reason he wished to leave the country”.  Coupled with the Applicant’s failure to make any attempt to leave Pakistan after being refused a UK visa, this caused the Tribunal to question his claims about his dealings with Lashkar-e-Islam and his credibility.

11. The Tribunal did not accept the Applicant’s explanations about his delay in leaving Pakistan after he was granted an Australian business visa in October 2009.  The Applicant claimed he did not travel to Australia until February 2010 because he had no money to leave earlier.  The Tribunal did not accept that the Applicant could not have obtained the money by virtue of his employment or from friends or family.  It found the delay of nearly four months was inconsistent with the Applicant’s claim that he was “concerned about his safety and well-being and that he had already been discovered by Lashkar-e-Islam in Lahore”.  This was also said to suggest “that the applicant ha[d] not been truthful about the approach by Lashkar-e-Islam and his resultant fear of harm”. 

12. In addition, the Tribunal considered the Applicant’s own conduct was inconsistent with his claims.  It observed that while he suggested that his refusal to cooperate with Lashkar-e-Islam put his life and the safety of his wife and children at risk, he had remained in his village for six months after the claimed first approach from Lashkar-e-Islam before moving to Lahore where he stayed until late 2009.  The Tribunal was of the view that if the Applicant had had the claimed dealings with Lashkar-e-Islam and was concerned about the well-being of himself and his family, he would have taken steps to leave Pakistan.  It was not convinced by his explanation that “a substantial amount of money [wa]s required to be able to apply for a visa” and did not accept that he “had no opportunity to collect money, either from his own savings or employment or from friends or relatives, if he believed that would give him the opportunity to obtain the visa and avoid harm”.  It observed that the Applicant had previously applied for two visas to the United Kingdom and found that this suggested that he had “felt able to obtain the money required to live in the UK”.  It had regard to his claim that his brother had paid fines to Lashkar-e-Islam and that he himself had been able to relocate with his family to Lahore and rent a house.  In these circumstances the Tribunal did not accept that the Applicant would not even make an attempt to leave Pakistan before the end of 2009, including after his UK applications were refused, if he genuinely believed his life or safety were at risk.  It found that the fact that he had not done so, but rather remained in Pakistan for over a year after the claimed first approach by Lashkar-e-Islam suggested that the Applicant had not been truthful about their approach and did not have a fear of harm.

13. Finally, the Tribunal had regard to the Applicant’s evidence “that he had applied for an Australian visa in August or September 2009, which was before he claim[ed] to have been approached in hospital”.  Having regard to the Applicant’s previous statement that he had moved to Lahore because he thought it was a safe area, the Tribunal found that “[t]here was no reason for him to believe in August or September 2009 that Lashkar-e-Islam would locate him, despite [his] suggestion that he could not keep away from them forever”.  The Tribunal found that the fact the Applicant “applied for the Australian visa before being found by Lashkar-e-Islam and approached in hospital also suggest[ed] that the reason the applicant sought to travel to Australia was not the reason he put forward in his protection visa application”.

14. The Tribunal found that the combination of these concerns caused it to conclude that the Applicant had not been truthful in his evidence.

15. The Tribunal considered the “numerous newspaper articles and other information concerning Lashkar-e-Islam and the situation in Pakistan, including information about the killing of Dr Rafiq” provided by the Applicant (which it had described in more detail earlier in its reasons for decision), but found that it did not establish that there was a real chance the Applicant himself would face serious harm upon return to Pakistan.  It accepted that Lashkar-e-Islam was an organisation that had been involved in killings and had been declared an illegal organisation by Islamabad and that it had been involved in the various activities suggested by the Applicant.  However the Tribunal pointed out that it must consider the Applicant’s own circumstances and the real chance of persecution to him, rather than the activities of Lashkar-e-Islam in general.  For the reasons it had given, the Tribunal found that there was no real chance the Applicant would be harmed by that organisation.  It also found unpersuasive his claim that the mere fact he left Pakistan and came to Australia where he had faced difficulties finding employment and other hardships was evidence that he was facing difficulties in Pakistan.

16. Having found that the Applicant was not truthful, the Tribunal rejected his claims.  It did not accept that he had been approached by Lashkar-e-Islam on several occasions, that he had refused to cooperate with them or that he or his family had been fined as a result.  It did not accept that he had moved to Lahore to avoid harm or that he had been discovered there.  Nor did it accept that his wife and brother had left the family home, that they had been in hiding as a result of the Applicant’s dealings with Lashkar-e-Islam, that his brother had been captured and detained for a year and tortured or that his nephew was shot.  The Tribunal did not accept that the Applicant had had any dealings with Lashkar-e-Islam or that he was of any interest to them, that Lashkar-e-Islam had targeted him in the past because of his occupation or for any other reason or that they would do so in the future.  It did not accept that the Applicant left Pakistan to avoid harm from Lashkar-e-Islam, that the organisation wished to harm him or that the authorities would be unable or unwilling to protect him from such harm.  The Tribunal rejected the “entirety” of the Applicant’s claims with respect to Lashkar-e-Islam.

1. The Tribunal found, considering the totality of the Applicant’s evidence, that it was not satisfied there was a real chance the Applicant would face persecution for any Convention reason if he were to return to Pakistan now or in the reasonably foreseeable future.  The Tribunal affirmed the delegate’s decision. 

Notification of Tribunal decision

1. On 12 March 2012 the Tribunal wrote to the Applicant notifying him of the Tribunal decision.  It also sent a copy of its decision to the Secretary of the Department of Immigration and Citizenship on that date.  However it is not in dispute that the letter was sent to the Applicant at his former Sydney address, notwithstanding his notification of the change to the Newcastle address in February 2012. 

2. It appears from the Courtbook that on 23 May 2012 the Applicant telephoned the Tribunal to enquire about the status of his case.  He was then informed the decision had been made in March 2012 and that a copy of the decision had been sent to his Sydney address.  The Applicant told the Tribunal that he had notified it of his change of address.  This was acknowledged by the Tribunal.  On 28 May 2012 the Tribunal notified the Applicant of the Tribunal decision of 12 March 2012 by letter sent to his Newcastle address. 

This Application

1. The Applicant sought review of the Tribunal decision by application filed in this Court on 12 June 2012. The application to this Court was made outside the 35-day period from the date of the migration decision provided for under s.477(1) and s.430(2) of the Migration Act 1958 (Cth) (the Act) because of the Tribunal’s failure to notify the Applicant of the decision by letter sent to his Newcastle address,. The Applicant sought an order that the time for making the application be extended under s.477(2) of the Migration Act. In the particular circumstances of this case, the Minister consented to such an order. An order extending the period for making the application was made on the first return date. Insofar as the First Respondent’s written submissions referred to the Minister not opposing leave being granted pursuant to s.477(2), such an order has already been made.

2. The Applicant attached an annexure headed “Final Orders and the grounds for appeal” to his Application.  After reciting what had occurred in relation to his protection visa application (including the remittal to the Tribunal), the Applicant continued:

   In the recent event, at most places of the reasons for refusal there is no specific reason mentioned by the tribunal member, rather her personal sense of judgement without any proofs of incorrectness of the situation mentioned by me in either the application or in the oral hearing. 

   The member wanted me to be saying the same words at all the times;  ie, if anything changes in my circumstances here or overseas, is unacceptable because I haven’t sent in writing before hearing.  Is this a valid reason for refusing someone’s claim?  When I mentioned about my brother being taken and put in jail for a whole one year, the member at first started to disagree because I haven’t sent them anything in writing although in this application I haven’t even fill in the application as I was told that the previous application will be considered and if any new information was to be submitted can be filed at any time.  So I preferred to tell this in the hearing and then it was taken a lie.

   Member is mentioning my medical condition which I haven’t claimed ie. I don’t have any medical condition which has suffered my mental status except for the depression given by this visa issues and the family problems aggravated by the delay in my visa. 

   The tribunal member’s decision is almost totally based on the previous member’s decision which was already a refusal and my whole effort of going to the court and getting the permission for reconsideration wasn’t for following the old decision but to look at my case with an independent view.

3. The Applicant did not file pre-hearing written submissions.  At the hearing he did not take issue with the manner in which the First Respondent characterised the issues he had raised in his application, but sought to raise additional matters. 

4. In addition, the First Respondent raised an issue that had not been pleaded by the Applicant.  It is discussed below under the heading “The complementary protection issue”.  The parties were given, and took, the opportunity to make post-hearing written submissions.  It is convenient to consider first the grounds raised in the written attachment to the Application as elaborated on in written and oral submissions. 

Actual and/or apprehended bias

1. The Applicant appears to contend that the Tribunal was biased and/or erred in making findings disbelieving his account of events without referring to evidence that positively disproved that account in his reference to the absence of any “specific reason”, and the Tribunal member’s “personal sense of judgement without any proof of incorrectness” of his claims. 

2. It is well-established that an allegation of bias must be “distinctly made and clearly proved” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69] per Gleeson CJ and Gummow J and SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [43]). It is “a rare and exceptional case where actual bias can be demonstrated solely from published reasons for decision” (see SCAA v Minister for Immigration and Multicultural Affairs [2002] FCA 668 at [38] per von Doussa J).

3. In this case there is nothing in the Tribunal’s reasons for decision to support any claim of either actual bias in the sense of prejudgment, or apprehended bias from the perspective of the appropriately informed reasonable lay observer in the sense considered in Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28.

4. Insofar as the Applicant took issue with the Tribunal’s attitude, questioning or any other aspect of the hearing, there is no evidentiary basis for any claim of actual or apprehended bias in the conduct of the hearing.  There is no transcript in evidence.  The Tribunal’s account of the hearing is not, either on its own or in conjunction with the Tribunal’s reasons, such as to establish that the Tribunal member’s mind was closed to the Applicant’s claims.  The fact that the Tribunal raised concerns about the Applicant’s claims with him is not indicative of either actual or apprehended bias. 

5. Nor, in the circumstances of this case, is the fact that the Tribunal made adverse credibility findings indicative of either actual or apprehended bias.  The Tribunal sought and considered the Applicant’s explanations for issues of concern and gave reasons for not accepting such explanations and for its adverse credibility finding.  The mere fact of adverse findings does not give rise to an inference as to the state of mind of the Tribunal member before and whilst the matter was under consideration or establish prejudgment of the issues that had to be determined.  It has not been established that the Tribunal member embarked on the case with a closed mind not open to persuasion. 

6. The findings were open to the Tribunal on the material before it for the reasons it gave.  Even if a different decision-maker may have taken a different view in relation to issues of concern to the Tribunal, this is not a case in which the Tribunal’s fact-finding can be said to have been conducted in a manner which could be described as “in substantial respects unreasoned, a mere assertion lacking rational or reasoned foundation, at times plainly and ex facie wrong and as selective of material going one way” (see NADH of 2001 and Others v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 at [115] per Allsop J) such as to found a conclusion that, from the perspective of the appropriately informed fair-minded observer, there might or would be a reasonable apprehension that the Tribunal had reached its conclusions with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. There is nothing in the evidence before the Court or in the decision of the Tribunal to establish an apprehension of bias on this basis.

7. The Applicant appears to assert that there was actual or apprehended bias, or a failure to conduct a review on the basis that the Tribunal’s decision was said to be “almost totally based on the previous member’s decision which was already a refusal”.  It was claimed that the Tribunal failed to look at the Applicant’s case with an “independent view”. 

8. The decision of the Tribunal as originally constituted is in evidence before the Court.  Insofar as it was submitted that the Tribunal’s statement of reasons was similar or identical to that of the previously constituted Tribunal, when the decisions are compared it is apparent that the Tribunal’s summary of the Applicant’s previous evidence up to and including the conclusion of the review by the first Tribunal is similar.  However in circumstances where evidence given in the past did not and could not change, the second Tribunal’s adoption of the first Tribunal’s summary of such evidence is not such as to give rise to a reasonable apprehension of bias in the sense considered by the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45 and Minister for Immigration and Citizenship v SZQHI [2012] FCAFC 160.

9. Moreover it is clear from a reading of the whole of the Tribunal’s decision, including its summary of the evidence given at the second Tribunal hearing, its reference to independent country information and all of its findings and reasons, that the Tribunal turned its mind to and dealt with the Applicant’s particular circumstances including, notably, the claims that he raised for the first time at the second Tribunal hearing.  It did not simply adopt the first Tribunal’s findings (compare SZQHH at [50] per Rares and Jagot JJ and SZQHI at [62] per Yates J).

10. The fact that the second Tribunal had regard, among other things, to the expansion of the Applicant’s claims after the time of his initial application (including, in that respect, the expansion of claims that occurred prior to the first Tribunal decision and to which the first Tribunal had also had regard) is not indicative of bias or of a failure to conduct a review.  It was open to the Tribunal to have regard to the fact that the Applicant’s claims had expanded over time.  The Tribunal had regard not only to the expansion in the Applicant’s claims up to and including the time of the first Tribunal review, but also to the fact that he had not raised a fresh claim about his brother having been kidnapped and kept in captivity for a year until the second Tribunal hearing, notwithstanding its significance and in circumstances where one of the reasons the previous Tribunal had rejected his claims was his failure to provide details of all incidents in his protection visa application or at the earliest opportunity.

11. It is the case that the Tribunal as reconstituted did not give the Applicant a fresh express invitation to provide further written information in its acknowledgement of the remittal.  However in its hearing invitation it indicated that the Applicant could provide additional written information if he had any new information he wished the Tribunal to consider.  In this sense the Tribunal gave the Applicant the opportunity to send it any new information.  It did so in circumstances where the Applicant could be taken to have been aware of the importance the first Tribunal had placed on the fact that he made late claims at the first Tribunal hearing.  The Applicant did not make his claim about his brother at the earliest opportunity, despite the importance of such a claim to his application.  Rather, he raised this issue for the first time at the hearing on 7 March 2012. 

12. It was open to the Tribunal to draw an adverse inference from these circumstances as one of the factors leading to its finding that he had not been truthful in his evidence.  While another decision-maker may not have had the same view about the relevance of the timing of the claim about the Applicant’s brother in these circumstances, the fact that the Tribunal had regard to this as an instance of the Applicant’s failure to make claims at the earliest opportunity and ultimately came to the same conclusion as the earlier Tribunal is not, in all the circumstances, such as to establish either actual or apprehended bias or that it failed to consider the Applicant’s case independently in a manner demonstrative of jurisdictional error.

13. This is not a case in which there can be said to have been the use of a template by a Tribunal member.  Its findings and reasons are not in the same terms as the findings of the first Tribunal.  The material before the Court reveals that the Tribunal brought to bear upon its task an impartial mind open to persuasion in relation to the Applicant’s claims.  It is apparent from the Tribunal’s findings and reasons that it considered the Applicant’s case on its merits based on all the evidence before it at the time of the decision and that it had regard to several matters of concern, not simply the timing of the claim about his brother.  The Tribunal also had regard to the more general expansion in the Applicant’s claims over time, to implausibility in his explanations and to his failure to seek to leave Pakistan at an earlier date, including after he obtained an Australian visa.  It also found that the Applicant’s own conduct in Pakistan was inconsistent with his claims.  It addressed the material he had provided. 

14. Insofar as matters of concern to the first Tribunal were also of concern to the second Tribunal, it is clear from a comparison of the “Findings and Reasons” sections in the two Tribunal decisions, that the second Tribunal adopted its own approach to the Applicant’s claims.  The fact that matters that had been of concern to the first Tribunal were also of concern to the second Tribunal in its assessment of the Applicant’s credibility is not, of itself, indicative of bias.  It was open to the second Tribunal to come to the same conclusions on the same material. 

15. Neither actual nor apprehended bias has been established on any of the bases contended for by the Applicant. 

Whether obligation to inquire, need for material disproving the Applicant’s claims or illogicality

1. The Applicant contended that the Tribunal was under an obligation to make inquiries or to find evidence positively disproving his claims as a precondition to it not being satisfied or refusing to accept those claims.  However it is well-established that it is for an Applicant to put forward evidence and arguments in support of his case (see Abebe v The Commonwealthof Australia (1999) 197 CLR 510; [1999] HCA 14 at [187] per Gummow and Hayne JJ). The Tribunal is not a contradictor. The Applicant was given the opportunity to put forward evidence and arguments in support of his case. It was open to the Tribunal on the material before it not to accept that the Applicant had been truthful in his claims and hence to make an adverse credibility finding. The Tribunal was not under an obligation to accept the Applicant’s claims in the absence of evidence disproving their correctness. Nor is this a case in which the circumstances are such as to give rise to any obligation on the Tribunal to make inquiries in the sense considered in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39.

2. Insofar as the Applicant otherwise disagrees with the Tribunal’s adverse credibility finding he seeks impermissible merits review.  Credibility findings are a matter for the Tribunal.  Merits review is not available in this Court.  As indicated, the Tribunal’s failure to accept the claim that the Applicant’s brother had been captured and detained for a year was a finding that was open to it on the evidence before it for the reasons that it gave.  Even if a different decision-maker might have reached a different conclusion in relation to this issue or may not have attributed any significance to the timing of this claim, that does not establish jurisdictional error on the basis of illogicality or irrationality in the limited sense considered in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 (and see SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1; [2012] FCAFC 58).

3. In oral submissions, in the context of expressing concern about the Tribunal’s finding about the timing of his claim about his brother, the Applicant provided an explanation for the fact that he did not make an earlier claim about his brother’s capture.  He told the Court that at some stage during the second review process he had asked a Tribunal officer whether he should send a further submission to the Tribunal and had been informed that that was not necessary as the Tribunal had his submissions.  There is no evidence before the Court to support such a claim.  Nor, more relevantly, is there any evidence that the Applicant gave such an explanation to the Tribunal at the March 2012 hearing when questioned about why he had not previously mentioned such claim, or at any other time. 

4. If the Applicant had been told that he was not under an obligation to provide a written submission to the Tribunal as reconstituted, it was open to him to give such an explanation to the Tribunal when asked about his failure to previously mention such claims.  He confirmed to the Court that he did not give the Tribunal this explanation at his hearing in March 2012. 

5. Insofar as the Applicant intended to raise concern about the conduct of the Tribunal Registry, the fact that he was told he need not put in a further written submission to the Tribunal did not preclude him from bringing to the Tribunal's attention any new evidence of relevance to his application (or from referring to his claimed contact with the Tribunal Registry in explanation for his failure to make an earlier claim about his brother). 

6. The Tribunal was entitled to draw an adverse inference from the fact that the claim about the Applicant's brother was raised for the first time at the March 2012 Tribunal hearing in circumstances where the Applicant had, in the hearing invitation, been given the opportunity to provide further written information in support of his case.  On the material before it, it was open to the Tribunal to have regard to the fact that one of the reasons the previous Tribunal rejected the Applicant’s claims was his failure to provide details of all incidents relied on in his protection visa application and to find that it was unthinkable that the Applicant would not consider it necessary to refer to his brother’s capture and release prior to the second Tribunal hearing in the period the application was before the Tribunal as reconstituted.  It was not indicative of bias or illogicality for the Tribunal to fail to have regard to an explanation not given to it.  The Tribunal was not under an obligation to make inquiries of the Tribunal registry as to any pre-hearing contact with the Applicant.  There is no evidence that the Applicant gave such explanation to the Tribunal. 

The medical condition issue

1. The Applicant also contended that the Tribunal had referred to a medical condition which did not constitute any part of his claims.  However it is apparent from the whole of the Tribunal’s reasons for decision that its reference to the Applicant’s medical condition was made in light of the 2010 report the Applicant had provided to the Tribunal as originally constituted. In 2010 the Applicant had been assessed as having symptoms consistent with a diagnosis of depression and adjustment disorder and had been given a prescription for an antidepressant.  This evidence was acknowledged by the Tribunal in its reasons for decision.  The Applicant’s contention that he did not have any medical condition, except for depression, is not inconsistent with this material or with the Tribunal’s finding that it was of the view that his medical condition had not affected his ability to participate meaningfully in the hearing in March 2012 or present his case in writing.  The Applicant’s complaints in this respect do not establish jurisdictional error.

Whether the Tribunal failed to have regard to or overlooked material

1. In oral submissions (and post-hearing written submissions) the Applicant claimed the Tribunal failed to consider material before the first Tribunal.  The Applicant took issue with the Tribunal’s reasoning in relation to the time at which he made claims to the first Tribunal (in particular about two men visiting the hospital where he worked in Lahore) and whether or not he had a migration agent at the time.  He made such claims in a statutory declaration dated 28 June 2010 provided to the first Tribunal.  The Applicant appeared to suggest that the Tribunal did not understand that while he did not have the assistance of a migration agent in preparing his protection visa application, he subsequently had a migration agent when the matter was before the first Tribunal.  He submitted that the Tribunal approach indicated that it had not read or had regard to his agent’s submission to the first Tribunal that accompanied his statutory declaration of 28 June 2010. 

2. The Applicant’s concerns relate to the Tribunal's consideration of his explanation for the fact that his claims had expanded from his initial application to his most recent submissions.  The Tribunal first addressed the expansion in the Applicant's claims from the time of his protection visa application up to the time of the decision by the Tribunal as originally constituted, including the fact that in his protection visa application the Applicant had not referred to an attack on his brother-in-law and the killing of his friend, Dr Rafiq, despite the claimed similar circumstances and the fact that he had not initially referred to two men visiting the hospital where he worked in Lahore. 

3. The part of the Tribunal decision in issue is as follows:

   Nevertheless, the Tribunal has formed the view the applicant has not been truthful in his evidence.  His claims have expanded from the initial application to his most recent submissions.  For example, in his initial application the applicant failed to refer to the attack on his brother in law and the killing of his friend Dr Rafiq, despite the fact that the applicant claims they were harmed in similar circumstances, for their failure to assist, or work for Lashkar-e-Islam.  The applicant stated in his initial application that his brother informed him that he suspected he was discovered in Lahore but in his subsequent claims he referred to two men visiting the hospital where he worked, a claim he has not made before.  The applicant informed the previous Tribunal that he did not have an advisor when he initially made the application and he informed the present Tribunal that he believed he could address these matters later.  The Tribunal rejects these explanations.  The applicant is clearly well educated with a good knowledge of the English language.  He did receive the assistance of a migration agent after he made his initial application but he had not referred to these events which were so significant to his own application. 

4. The Applicant appeared to submit that this part of the Tribunal decision was factually wrong, in that he had in fact mentioned his claim about Dr Rafiq's killing in a statutory declaration made by him on 28 June 2010, at a time when he had a migration agent. 

5. However the Tribunal's concern in relation to the Applicant’s claims about the killing of his friend, Dr Rafiq, was his failure to refer to that event in his initial protection visa application, despite the fact that he claimed that he and Dr Rafiq were in similar circumstances.  It understood and considered his explanation to the first Tribunal that he did not have an adviser at the time of his protection visa application.  It also understood that he included such matters in subsequent claims.  Elsewhere in its decision the Tribunal summarised the submission of the Applicant’s adviser to the first Tribunal dated 29 August 2010 and received 15 September 2010 as well as the accompanying statutory declaration by the Applicant dated 28 June 2010.  It considered the submissions made for the Applicant and his claims in his statutory declaration.  It highlighted the fact that he raised new claims in the written submissions. 

6. What was said thereafter by the Tribunal related to the fact that the Applicant had merely stated in his protection visa application that his brother informed him that he suspected he was discovered in Lahore, whereas in his subsequent claims he also referred to two men visiting the hospital where he worked.  This was a claim he had not made previously.  The Tribunal rejected the Applicant's explanations for not making these claims at the time of his protection visa application.  It acknowledged that he had received the assistance of a migration agent after he made his initial application, but had regard to his education and good knowledge of the English language and his failure to refer to events which were so significant to his own application.  It was open to the Tribunal to draw an adverse inference from the fact that claims were not made in the Applicant's initial protection visa application, and to find that his claims had expanded from his initial application to his most recent submissions.  It has not been established that the Tribunal failed to have regard to any of this evidence or to any integers of the Applicant’s claims in a manner constituting jurisdictional error. 

7. Insofar as the Applicant’s concern is with the fact that the Tribunal did not accept either the explanations he provided to the first Tribunal for not making certain claims at the first opportunity or the explanations he provided to the second Tribunal, he seeks impermissible merits review.  Credibility findings are a matter for the Tribunal.  Its findings were open to it on the material before it for the reasons it gave.  As discussed above, the Tribunal’s reasoning in this respect is not indicative of actual bias.  Nor can it be said to be unreasoned, plainly wrong or otherwise such as to establish apprehended bias in the sense considered in NADH (at [115]).

The Tribunal’s access to the Applicant’s Facebook account

1. The Applicant expressed concern about the fact that at the March 2012 Tribunal hearing the Tribunal member was said to have insisted he give her his Facebook ID (or username) and password and then accessed his account to check his activities.  As explained in submissions, he had not sought to put such material before the Tribunal. 

2. There is no transcript of the Tribunal hearing in evidence before the Court.  In its description of the hearing in its reasons for decision the Tribunal recorded:

   The Tribunal noted that the applicant’s Facebook account makes no mention of any of the events he described.  For example, he claims he could not get in touch with his brother and his wife, yet there is no mention of any of these concerns.  The applicant said that he would not expose himself and most of his friends on Facebook do not know his wife and he uses it for entertainment only. 

3. In post-hearing submissions the Applicant explained that his concern was that the Tribunal member had asked him to provide his Facebook ID and password and “insisted” he give them to her, despite his evidence that he did not have any “case related things” on Facebook and that it was “just a source of enjoyment”.  He claimed that the Tribunal had used its powers to “affec[t his] privacy” in an “inappropriate” manner and that the information on his Facebook account (which he had not sought to put before the Tribunal) could have been or could in the future be disclosed in breach of s.439(3) of the Migration Act.

4. Relevantly, s.439(3) of the Act prohibits a person (including a Tribunal member) from making a record of or disclosing information concerning a person obtained in the course of performing functions or duties or exercising powers under the Act, except for the purposes of the Act or for the purposes of, or in connection with, the performance of a function or duty or the exercise of a power under the Act.

5. While the Applicant’s concern about feeling obliged to provide access to his Facebook account to the Tribunal is understandable, the Tribunal has very wide powers under the Act (see ss.424 and 427 of the Act). Relevantly, in conducting a review the Tribunal has power under s.424(1) to “get any information that it considers relevant”.  If it does so it must have regard to that information in making its decision on the review.  The Tribunal chose to exercise this power in this case.  It had regard to the information it obtained in making its decision.  Its recording of that information was in connection with the performance of its obligation to review the delegate’s decision. 

6. Insofar as the absence of information about events in Pakistan or of any expression of concern by the Applicant about his inability to get in touch with his brother or his wife in the material in his Facebook account could be seen as “information” within s.439 of the Act, there is nothing in the material before the court to suggest that the Tribunal’s recording of the content of the Applicant’s Facebook account was otherwise than for the purposes of, or in connection with, the Tribunal member’s performance of functions and duties and exercise of powers under the Act (see s.414(1) and s.424(1) of the Act). The Applicant’s concern at the possibility of subsequent inappropriate use of the information on his Facebook account by the Tribunal member does not establish a jurisdictional error. In any event these are not proceedings for an offence under s.439 of the Act.

7. The issues raised by the Applicant in relation to the Tribunal’s access to and use of his Facebook account, including his claims about breach of privacy, the fact that the Tribunal member persisted in seeking the information after he told her it was “irrelevan[t]” and his concern that the Tribunal acted in an “inappropriate” manner, do not establish jurisdictional error. 

8. Counsel for the First Respondent addressed the issue of whether the Tribunal was obliged to put what it found on the Facebook account to the Applicant under s.424A of the Act. The First Respondent submitted that the information on the Facebook account would fall within the s.424A(3)(b) exception to the obligation in s.424A(1) of the Act. While what the Applicant gave the Tribunal was what he described as his password and ID, not a copy of the content of what appeared on his Facebook account, this amounted to the means by which access to the account could be obtained. It is not necessary to determine whether s.424A(3)(b) is applicable.

9. First, insofar as the absence of information on the Facebook account could be described as “gaps” in the material, that would not amount to information in the sense considered in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (at [18]). It would appear that such information as there was did not itself constitute “a rejection, denial or undermining of the [Applicant’s] claims” (SZBYR at [17]). Moreover, and critically, it can be inferred from the fact that there was no mention of the contents (or lack of contents) in the Applicant’s Facebook account in the Tribunal's findings and reasons that the Tribunal did not consider that this material formed the reason or part of the reason for affirming the delegate's decision such that it had to be put to the Applicant for comment in accordance with s.424A(1) of the Act. No jurisdictional error is established on this basis on the evidence before the Court.

The Tribunal’s failure to accept the Applicant’s explanations

1. The Applicant also took issue with the fact that the Tribunal did not accept his explanation for his delay in leaving Pakistan.  He submitted that it ignored his circumstances in Pakistan and cultural differences between Australia and Pakistan.  However the Tribunal considered but did not accept the Applicant’s explanations for reasons which it gave. Beyond this, the Applicant seeks impermissible merits review.  No jurisdictional error is established on this basis. 

The complementary protection issue

1. In pre-hearing written submissions, counsel for the First Respondent properly raised an issue that had not been pleaded by the Applicant. That issue is whether the Tribunal fell into jurisdictional error by failing to invite the Applicant, pursuant to s.425 of the Act, to a further hearing to give him the opportunity to give evidence and present arguments in relation to whether he satisfied the complementary protection criterion in s.36(2)(aa) of the Act or by failing to consider whether he met such criterion.

2. This issue arose because while the Tribunal made its decision on 12 March 2012, its letter to the Applicant of that date enclosing a copy of the written statement of its reasons for decision was sent to his former Sydney address.  This occurred despite the fact that on 2 February 2012 the Applicant had notified the Tribunal that he had changed his address to a specified Newcastle address. 

3. It is not in dispute that the Applicant should have been notified of the decision by letter sent to his Newcastle address as the last residential address provided to the Tribunal by him in connection with the review (see s.441A(4)(c)(ii) of the Act). The Tribunal failed to comply with its notification obligation under s.430A(1) of the Act. The Sydney address was not the Applicant’s last residential address provided to the Tribunal in accordance with the review (see s.441A(4)(c)(ii)). The Tribunal did not send a copy of its decision to the Applicant at his correct Newcastle address until 28 May 2012.

4. In the meantime, on 24 March 2012, the provisions in Schedule 1 to the Migration Amendment (Complementary Protection) Act 2011 (Cth), (the Amendment Act) came into operation. One effect of the Amendment Act was to insert an additional alternative criterion for a protection visa in s.36(2)(aa) of the Act as follows:

   (2) A criterion for a protection visa is that the applicant for the visa is:

   …

   (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; …

5. Item 35 of Schedule 1 to the Amendment Act provides that the amendments made by that Schedule apply in relation to an application for a protection visa “that is made on or after the day on which this item commences” or “that is not finally determined (within the meaning of subsection 5(9) of that Act) before the day on which this item commences”. 

6. Section 5(9) of the Act provides that:

   For the purposes of this Act, an application under this Act is finally determined when either:

   (a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or

   (b) a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.  

7. What is in issue is whether the delegate’s decision was “no longer … subject to any form of review under Part … 7” of the Act as at 24 March 2012, the date the complementary protection amendment came into force. 

8. The decision of the delegate of the First Respondent was subject to review by the Tribunal under Part 7 of the Act. The First Respondent conceded that such a decision would be subject to a form of review under Part 7 within s.5(9) of the Act until the Tribunal became functus officio. 

9. The First Respondent also accepted that if the Tribunal did not become functus officio until after 24 March 2012, it would have been under an obligation pursuant to s.425 of the Act to invite the Applicant to appear before it to give evidence and present arguments in relation to the complementary protection criterion on the basis that the issues “arising in relation to the decision under review” had changed after the date of the second Tribunal’s hearing to include complementary protection issues.  It is not in dispute that the Tribunal did not invite the Applicant to address such issues.  Nor did it give consideration to the complementary protection regime in its reasons for decision.

10. However, the First Respondent submitted that in the particular circumstances of this case, the Tribunal became functus officio on 12 March 2012 upon sending a copy of its decision to the Secretary of the Department of Immigration and Citizenship (the Secretary) as required by s.430A(2) of the Act and that hence the Applicant’s protection visa application was finally determined on that date so that the Amendment Act, which came into operation on 24 March 2012, did not apply.

11. Tendered in evidence was a copy of a letter from the Tribunal dated 12 March 2012 (the date of the Tribunal decision) to the Secretary enclosing a copy of the Tribunal’s statement prepared under s.430 of the Act.

12. It was not suggested that a protection visa application could be regarded as “finally determined” within the meaning of s.5(9) of the Act at any earlier time, such as at the date of the Tribunal decision. I note that the Explanatory Memorandum to the Amendment Act suggests that the concept of “finally determined” relates to whether the application has been “decided” by the Tribunal at the time of commencement.  

13. The First Respondent submitted that in the particular circumstances of this case it was open to the Court to find that once the Tribunal had notified the Secretary by letter of 12 March 2012, as the Tribunal decision was then “beyond recall” and the matter was no longer “entirely intramural”, the Tribunal was functus officio and hence that the Applicant’s protection visa application had been finally determined before the complementary protection provision came into operation.  No authority in relation to the meaning of “finally determined” in the context of the Act was cited.  Rather, reference was made to decisions about whether the Tribunal was functus officio at the time of receipt of late submissions. 

14. The Applicant did not address this issue at the hearing, but was given the opportunity to make post-hearing written submissions.  He expressed concern about the consequences of the Tribunal’s failure to properly notify him of its decision in March 2012 and the fact that he had drawn this to the attention of the Tribunal after being warned by the Immigration Department he may be detained and deported as his visa had expired.  His understandable concern that he may have been detained in such circumstances highlights the need for the Tribunal to have procedures in place to ensure that correspondence is sent to the correct address (particularly where, as in this case, the most recent residential address had been used in the Tribunal’s hearing invitation of 9 February 2012).  However these concerns do not of themselves mean that the Applicant’s protection visa application could not be regarded as finally determined until the Tribunal decision was notified to him in accordance with the provisions of the Act.  Rather, it is necessary to have regard to the provisions of the Act and to what has been said by the Federal Court in relation to when the Tribunal makes its decision, completes its core function of review and/or becomes functus officio. 

15. Section 430 of the Act is as follows:

    (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

    (a) sets out the decision of the Tribunal on the review; and

    (b) sets out the reasons for the decision; and

    (c) sets out the findings on any material questions of fact; and

    (d) refers to the evidence or any other material on which the findings of fact were based.

    (2) A decision on a review (other than an oral decision) is taken to have been made on the date of the written statement.

    (3) Where the Tribunal has prepared the written statement, the Tribunal must:

    (a) return to the Secretary any document that the Secretary has provided in relation to the review; and

    (b) give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

1. Section 430A of the Act contains notification obligations. It is as follows:

   (1)  The Tribunal must notify the applicant of a decision on a review (other than an oral decision) by giving the applicant a copy of the written statement prepared under subsection 430(1).  The copy must be given to the applicant:

   (a)  within 14 days after the day on which the decision is taken to have been made; and

   (b)  by one of the methods specified in section 441A.

   (2)  A copy of that statement must also be given to the Secretary:

   (a)  within 14 days after the day on which the decision is taken to have been made; and

   (b)  by one of the methods specified in section 441B.

   (3)  A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision.

2. By reason of s.430(2) of the Act a Tribunal decision on a review is taken to have been made on the date of the written statement. However while this would be relevant in the context of a determination of whether a judicial review application was filed within the time provided for in s.477(1) of the Act, the First Respondent conceded that, consistent with the approach taken in Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25; [2012] FCAFC 131 (see Buchanan J at [23] and Logan J at [42] – [44]), the issue of whether the Minister’s decision was still subject to any form of review when the Amendment Act came into effect cannot be resolved simply by reference to the date of the Tribunal’s written statement.

3. The First Respondent acknowledged that the Tribunal’s “core function” pursuant to s.414(1) of the Act was to review decisions that were characterised as “RRT-reviewable decisions” under s.411 (see SZQOY at [19] per Buchanan J) and that where the Tribunal makes a decision on a review, it must prepare a written statement in accordance with s.430 of the Act. It was conceded that the core function of the Tribunal was not “complete” merely by the making of a decision on review and acknowledged that it has been said that it is also part of the Tribunal’s core function that its decision be made known to the “persons interested”, as until then the matter is “entirely intramural” (SZQOY at [40] per Logan J). 

4. However the First Respondent submitted that the ratio decidendi of SZQOY was that the Tribunal will only become functus officio on a review if its decision is beyond recall or incapable of revision.  It was said to be open to the Court to find that the Tribunal became functus officio and that the Applicant’s protection visa application had been “finally determined” when the Tribunal decision was beyond recall or incapable of revision. In the particular circumstances of this case this was said to have occurred on 12 March 2012 upon transmission of the Tribunal’s s.430(1) statement to the Secretary, notwithstanding that the Applicant was not also properly notified on that date. This submission was put on the basis that at that point the matter was no longer “entirely intramural” (see SZQOY at [40] per Logan J). It was submitted that the Tribunal member could not have changed her views thereafter or issued to the Applicant and the Secretary a second statement under s.430(1) reflecting any such changed views, notwithstanding that this was not a case in which there was any question of changed views based on late submissions.

5. It was also pointed out that this was not a case in which the Tribunal became aware, following publication of its decision, that it had fallen into jurisdictional error.  In such a situation it would have been entitled to revisit its decision in the sense considered in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11. It did not do so in this instance.

6. The Applicant submitted that the Tribunal decision was no decision until it was communicated to him as the only party or until irrevocable steps were taken to achieve that outcome (see Semunigus v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 96 FCR 536; [2000] FCA 240 at [103] per Madgwick J). It was contended that until the decision had been sent to him at the address provided for in s.441A of the Act, irrevocable steps had not been taken to communicate the decision to him and the decision was not beyond recall or otherwise in the public domain. Reference was made to the fact that the chapeau to s.430A(2) contains the word “also”, in support of the proposition that notifying the Applicant was “compulsory” and important.  The Applicant pointed out that in SZQOY Logan J stated (at [40]) that the Tribunal’s “core function” included sending a copy of its decision to the Applicant and the Secretary in accordance with s.430A of the Act.

7. The First Respondent referred to several decisions of the Federal Court and this Court in relation to the issue of when the Tribunal becomes functus officio.  None of the cases cited involved a factual situation on all fours with the present case or the issue of whether a visa application has been “finally determined”. 

8. Thus, in Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 Finn J at first instance considered whether the Tribunal was functus officio at a time before its decision had been disseminated outside the Registry.  What was in issue was whether the Tribunal was obliged to consider a submission received by the Tribunal Registry after the decision had been signed by the Tribunal member and passed to the Registry staff for processing, but before copies of the Tribunal decision were sealed and subsequently posted to the Applicant and the Department. 

9. Finn J pointed out (at [18]) that it was “not … profitable to attempt to define in any exhaustive way when it properly is to be said that a decision is made” and suggested that context could have a “real bearing” on the question.  However his Honour continued (at [19] – [20]):

   For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion – as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.

   What constitutes such an act can obviously vary with the setting in which the decision is made:  it may be no more than a written notation of a conclusion on a department file;  it may be publication of the conclusion in a particular forum, or communication of it to another;  it may be performing a consequential or collateral act that presupposes the decision’s having been made, etc.

10. At that time, s.430(2) of the Act required the Tribunal to give the Applicant and the Secretary a copy of the statement prepared under s.430(1) “within 14 days after the decision concerned is made”. Such obligation is now to be found in s.430A of the Act, which refers to “within 14 days after the day on which the decision is taken to be made”. 

11. In the context of the Act as it stood at that time, Finn J concluded that the Tribunal was functus officio on the day the decision was made.  His Honour was of the view (at [24]) that at the time “when the decision and statement were signed and the statement handed to the registry for processing, the decision had been taken” and concluded that this set the date from which obligations consequential on the making of the decision arose.  On this basis the Tribunal was said to be functus officio when the further submissions in question were received later that day.

12. On appeal the Full Court of the Federal Court considered in Semunigus whether the then notification provisions in s.430(2) of Act had to be complied with before a decision could be said to have been made by the Tribunal. The appeal was dismissed. However it is relevant to have regard to the reasons given by each of the judges.

13. Higgins J accepted that “there must be some overt act performed by the decision-maker putting it beyond his or her power to recall or change the decision thus made” (at [75]), but found that delivery of written reasons and notice of the decision to “the parties” was “not an integral part of the process of making the decision” (at [76]).  On this basis, Higgins J was of the view that once the reasons for decision had been delivered to and recorded in the Tribunal Registry, the decision was made (at [78]). 

14. Spender J agreed that the appeal should be dismissed, but for different reasons.  His Honour agreed with Finn J that the making of a decision involved both a conclusion and an overt act of such character as precluded the conclusion being revisited (at [11]), but found that there was little evidence before the Court as to whether the decision was in fact “beyond recall”.  Spender J observed (at [12] and see [21] to the same effect):

    …I think it likely that, had the Member wanted to recall his signed decision, because, for example, he had changed his mind or had realised that he had made a mistake, he would have been able to retrieve the decision at any time prior to a copy of it having been sent to either the Minister or the applicant as then required by s 430(2) of the Migration Act 1958 (Cth) (“the Act”). 

15. However his Honour found (at [21]) that even if the Tribunal was not functus officio at the time the submission was received, the rules of natural justice did not oblige it to have regard to the further belated submission and that no ground of review had been established under the then applicable s.476 of the Act.

16. Madgwick J dissented, being of the view that the appeal should be allowed.  His Honour also agreed with the general statement of principle by Finn J at first instance (at [19] – [20]) set out above at [92] and emphasised the need for there to be an overt act of such character, in the circumstances, as “preclude[d] the conclusion being revisited by the decision-maker at his or her option” (at [102] quoting Finn J at first instance). 

17. Madgwick J concluded that there had been no decision made by the Tribunal at the time the submission was received by the Registry.  His Honour stated (at [102] – [103]):

    As a matter of undoubted fact, the conclusion to which the RRT member had arrived in his own mind had not been communicated to anyone outside the RRT's own staff.  The taking of administrative steps, as part of an orderly general system of case management, to have support staff communicate the decision (and the reasons for it) to the parties could therefore plainly have been halted or countermanded by the RRT member.  That must be the case, as a matter of administrative necessity: a RRT member might have had second thoughts about the proper factual conclusions in a case; or a new judicial decision might change the member's understanding of the relevant law.  Mere case management practices, even if publicly decreed, cannot stand in the way of justice being done: Queensland v JL Holdings [1997] HCA 1; (1997) 189 CLR 146.

    In a case of the kinds dealt with by the RRT, a decision is no decision, in my opinion, until either it has been communicated to the applicant or irrevocable steps have been taken to have that done.  I speak of communication to the applicant because, before the RRT, the applicant is the only party.  There is no need to regard a decision as irrevocable before it must be considered to have passed into the public domain. 

18. His Honour was of the view that the Tribunal had an implied duty to consider whether or not to look at the late submission and that its failure to do so amounted to a reviewable error (at [109]). 

19. In SZQCN v Minister for Immigration & Anor [2011] FMCA 606 Smith FM suggested that in Semunigus their Honours had held that, as the Act then stood, no Tribunal decision was “‘beyond recall’ prior to publication of the decision, in the absence of any specific provision governing the time when the Tribunal became functus officio” (at [45]). However, his Honour was of the view that the present s.430(2) (which provides that a decision on review (other than an oral decision) “is taken to have been made on the date of the written statement”) not only “govern[ed] the calculation of time for the purposes of time limits on judicial review” but also deemed a point in time when the decision took legal effect and was “incapable of recall or reconsideration” by the Tribunal so as to render the Tribunal functus officio (at [50]). 

20. Such issue arose again in SZQOY v Minister for Immigration & Anor [2012] FMCA 289. In SZQOY the Tribunal member had reached a conclusion and had alerted the Registry that the decision was ready to be published.  Two hours later, before any dissemination outside the Tribunal, the Applicant’s adviser faxed a submission to the Tribunal.  The Tribunal member saw this submission, but stated that the case could not be reopened at that time. 

21. At first instance Cameron FM was of the view that in the absence of any specific provision governing the time when the Tribunal became functus officio, no decision was “beyond recall” prior to publication of the decision (at [43] and also see SZQCN at [45]) and concluded that the Tribunal was not functus officio at the time the submissions were received.  Contrary to the approach taken in SZQCN, his Honour did not accept that s.430(2) was such a specific provision.

22. The Minister unsuccessfully appealed to the Federal Court.  Their Honours all rejected the Minister’s contention that the Tribunal became functus officio upon the communication of its decision on the review by the relevant Tribunal member to the Registry of the Tribunal with a view to the decision being notified to the Applicant and to the Secretary.  

23. Buchanan J saw the central issue in those terms (at [1]), that is, as whether the Tribunal became functus officio when the presiding Tribunal member electronically transmitted to the Registry a written decision with a view to it being notified to the review applicant and to the Secretary. 

24. In that context his Honour considered the evidence before the Court as to the factual events that had occurred.  His Honour agreed with the conclusion of Cameron FM that after the decision had been electronically transmitted to the Registry in an internal communication by the Tribunal member, it could nonetheless have been recalled by the member and found that the Tribunal was not functus officio at the time submissions were received by it.

25. In reaching that conclusion however, Buchanan J considered, but rejected, the Minister’s contention that the Tribunal had completed its review in any case when the presiding member had prepared a written statement under s.430 of the Act and had transmitted it to the Registry.

26. His Honour expressly addressed the issue of when the Tribunal had completed its review in light of the provisions in the Act and considered when a Tribunal decision was “made” (at [22] – [23]).  Buchanan J did not accept that “a decision [was] “made” by the [Tribunal] in the requisite sense at the time of an internal communication [that was] expected to lead (sometime in the next 14 days) to notification of the decision to the effective parties to the review”, said to be the Applicant and “the Secretary of the relevant government department from whence came the decision under review” (at [23]).  His Honour pointed out that any such conclusion “would entail, and depend upon, the accompanying conclusion that within the intervening period the statement of reasons and, if necessary, the decision on the outcome, was incapable of recall, revision, amendment or, if appropriate, reversal” (at [23]) and found that it was not justified by reference to the provisions of the Act or any relevant legal principle. 

27. Of relevance in this case, particularly from the perspective of a lower court in the hierarchy, in support of this conclusion Buchanan J not only referred with apparent approval to the principles outlined by Finn J in Semunigus at first instance (at [19] – [20]), but also expressed agreement with the remarks of Madgwick J on appeal (at [102] – [103] set out at [100] above) in which his Honour had stated that a Tribunal decision was “no decision” until either it had “been communicated to the applicant or irrevocable steps ha[d] been taken to have that done” (SZQOY at [26] quoting Semunigus). 

28. Buchanan J observed that in Semunigus Spender J had been “less definite” in the views that he expressed about when a Tribunal decision was “beyond recall” (see SZQOY at [27]).  His Honour did not agree with the observations of Higgins J in Semunigus as a matter of principle.  

29. Buchanan J found (at [29]):

    …In my respectful opinion, the principles stated by Madgwick J and echoed by Spender J are a correct statement of the legal position.  All three judges endorsed the statement of principle made by Finn.  That statement of principle incorporates a critical consideration.  A decision-maker must be precluded from revisiting the decision at his or her option before it is to be regarded as final in the relevance sense.  In the present case there was, in my view, no support in the evidence or in any of the statutory provisions relied upon by the appellant to suggest that it was beyond the power of the member of the RRT to recall the decision which had been sent to the registry through the RRTs electronic case-management system.  Insofar as the member of the RRT concluded that it was beyond his power to do so, he made a jurisdictional error. (Emphasis added).

30. In SZQOY Logan J and Barker J each expressed “general agreement” with the reasons of Buchanan J.  However each also referred expressly to the need for manifestation of the Tribunal decision to the applicant for review for the decision to be beyond recall. 

31. Logan J stated (at [34]) that the Tribunal’s decision:

    …was not beyond recall by the member constituting the RRT for the purposes of the review until it was manifested to the applicant for review (the first respondent) and to the Secretary to the appellant Minister’s department by some overt act.

32. His Honour was of the view that this approach was not only that taken by Buchanan J, but was also the view expressed in Semunigus by Madgwick J (and also Spender J). 

33. Relevantly, having regard to the fact that the issue in this case is whether the Applicant’s protection visa application had been finally determined within s.5(9) of the Act, Logan J surveyed the provisions of the Act in relation to the Tribunal’s review function, stating (at [35]):

    The RRT owes its existence to and exercises no greater jurisdiction than that conferred by the Migration Act 1958 (Cth) (the Act). It is therefore the text of the provisions of the Act concerning these matters, the context in which they appear and the subject, scope and purpose of those provisions which one must examine in order to determine when after an application for review has been lodged with it the RRT becomes functus officio.

34. Logan J pointed out that the “core function” of the Tribunal under s.414 was to review the decision the subject of a valid application under s.412 (see SZIAI at [18] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), that the presiding member undertakes the “core function” of review in a particular case and that such member bears the responsibility of conducting the review, recording the decision and reasons as required by s.430 of the Act and notifying the applicant and the Secretary as required by s.430A (or, if the member delivers the decision orally, notifying the Secretary under s.430D of the Act).

35. Relevantly, Logan J made it clear that the Tribunal’s core function of review was not “complete” until its decision, if given in writing (as here), was sent to the applicant and to the Secretary in accordance with the statutory notification obligation.  As his Honour stated (at [40]):

    The intellectual process in undertaking the core function of review is not an end in itself. The decision and reasons which are the result of that intellectual process must be made known to the persons interested. Those persons are the applicant for the review and the Secretary. It is only when the decision of the RRT as constituted by the particular member has either been pronounced orally or, if given in writing, sent to the applicant and to the Secretary in accordance with the notification obligation that the core function of review is complete. Before then, the member is entitled to have second (or more) thoughts perhaps on the basis of further reflection on all of the material hitherto to hand, perhaps stimulated by further material. At that stage, the matter is entirely intramural. Depending on the nature and source of that further material there may be procedural fairness obligations which fall upon the member before a final decision is made. That member is entitled to entrust to a registry officer the tasks of recording the decision and of notifying the applicant and the Secretary of that decision but the responsibility for so doing remains that of the member who has conducted the review. Until the decision has been sent out, that member is also entitled to countermand a direction to the registry to record and send out what has proved, upon the member’s reflection, to be an earlier version of that member’s decision.  (Emphasis added). 

1. His Honour reiterated (at [41]) the need for “culmination by manifestation to the interested party” (by oral pronouncement or other notification of the decision) and rejected the contention that s.430(2) meant that the decision was beyond recall although it had never been communicated other than to Registry staff. While Logan J referred generally to whether the matter was “beyond recall” (at [42]), his Honour returned (at [43]) to the notion of when the Tribunal’s “core function” was concluded, before reiterating (at [44]) the need for notification of the decision “to the applicant and the Secretary” under the current provisions in the Act in relation to review by the Tribunal. 

2. Logan J was of the view (at [46]) that the Act did not “preclude revision” of the decision by the Tribunal member until the decision had been “externally notified” (and see Pongrass Group Operations Pty Ltd v Minister for Planning (2007) 156 LGERA 250; [2007] NSWLEC 638 at [26] and [33] per Jagot J) and concluded (at [49]) that at the time the further material was received the Tribunal was not functus officio “because no decision had yet been pronounced [orally] or notified”. 

3. In SZQOY Barker J expressed general agreement with the reasons of Buchanan J and stated that he also agreed with the reasons of Logan J (at [50]).  His Honour agreed that, in the circumstances in SZQOY the Tribunal member was not “precluded as a matter of law from deciding to consider the materials lodged late by the [Applicant’s representative]”.  Like Logan J, Barker J considered the terms of the Act governing the Tribunal’s review function.  His Honour rejected the contention that there was a strict division between the making of a decision on review and the subsequent provision of reasons for that decision and stated (at [57]):

   The Act, as Logan J, with respect, demonstrates in some detail, indicates communication to a party – and probably to the Secretary too – as a critical point in the process by which the decision arising from the review process is “beyond recall”.  I would also emphasise, however, that it is only following receipt of the reasons given for a decision that parties such as an appellant and the Minister or where appropriate the Secretary will be in a practical position to take advantage of their rights to make an application in respect of the decision as provided for by s 478 of the Act.

4. His Honour concluded that there was “no compelling reason in public policy why the [Tribunal] should not be able to recall the reasons recording a decision arising from the review process under the Act before it ha[d] been communicated to a party” (at [58]). 

5. It is clear that Barker J drew a distinction between communication to “the affected party” and communication to the Secretary (see [54] and [58]), and saw communication to the applicant as essential. 

6. The First Respondent submitted that the Tribunal’s decision in this case was beyond recall and incapable of revision on 12 March 2012 upon the transmission of the Tribunal’s s.430(1) statement to the Secretary. The statement was also posted to the Applicant, but to the wrong address such that he was not properly notified by that transmission. Nonetheless it was said that at that point the decision had been manifested to one of the “persons interested” (SZQOY at [40] per Logan J) and that the matter was no longer “entirely intramural” (SZQOY at [40] per Logan J).  There was said to have been an overt act such that would preclude the Tribunal member revisiting her conclusion at her option, notwithstanding that the decision was not sent to the correct address for the Applicant until 28 May 2012.  It was contended that this meant that the visa application was finally determined on 12 May 2012. 

7. Counsel for the First Respondent submitted that such an approach was open to this Court on the basis that the ratio decidendi of SZQOY was that the Tribunal will only become functus officio on a review if its decision is beyond recall or incapable of revision.  It was pointed out that the factual circumstances in the present case differed from those in SZQOY.  In SZQOY the Tribunal’s statement under s.430 of the Act had not been communicated to anyone outside the Tribunal Registry prior to receipt by the Tribunal of a further submission from the applicant and there was said to be no reason for their Honours to consider whether if the Tribunal had properly sent a copy of its decision to the applicant or to the Secretary it would be functus officio. 

8. However in SZQOY the judges in the Federal Court expressed a clear view that the Tribunal had not completed its review until, at the least, the decision was either communicated to the applicant or irrevocable steps had been taken to have that done. 

9. Buchanan J stated clearly (at [29]) that the principles stated by Madgwick J in Semunigus to this effect were “a correct statement of the legal position” (acknowledging that Spender J had “echoed” such principles in a “less definite manner”). 

10. Logan J (with whom Barker J agreed) approached the issue from the perspective of when the Tribunal’s core function of review was complete and concluded that it was only when a decision given in writing (as here) was sent to the applicant and to the Secretary “in accordance with the notification obligation” that such core function was complete (SZQOY at [40]). 

11. Barker J saw the Act as indicating communication to “a party” (as distinct from the Secretary) as a “critical point in the process by which the decision arising from the review process [was] “beyond recall”” (at [57]). 

12. Even if, as the reasoning of Buchanan J indicates, the decision in SZQOY could have been reached by a focus on whether the Tribunal decision was beyond recall at the time the submission was received, his Honour expressed agreement with the views of Madgwick J as a statement of legal principle and Logan and Barker JJ each had regard to when the review function of the Tribunal was complete.  All saw communication to the applicant as essential, whether expressed as an essential part of the Tribunal’s core function of review or as relevant to when the decision was “made” in the requisite sense. 

13. Such an approach is of direct relevance in this case, given that what is in issue is whether the Applicant’s protection visa application had been “finally determined” before the date the Amending Act commenced in the sense that the delegate’s decision was “no longer subject to any form of review” under Part 7 of the Act. In my view, in this context, it is necessary to consider whether the Tribunal had completed its review at the time the Amendment Act came into effect (see SZIAI at [18]). Such an approach is consistent with the language of Item 35 of Schedule 1 to the Amending Act and s.5(9) of the Act and with the provisions of the Act governing review by the Tribunal.

14. It is often stated that “[t]he principles governing how a Court determines what is the ratio of an earlier judgment are difficult to articulate with precision and can be difficult to apply” (Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39; [2000] FCA 1817 at [24] and see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; [2006] FCAFC 2 at [125] – [138] per Weinberg J). At the least, it is apparent that in SZQOY Logan J (with whom Barker J agreed) expressly considered relevant the question of when the Tribunal’s core function of review was complete and, in that context, regarded communication to the applicant as essential to completion of such core function.  Such principle was treated as a necessary step towards the conclusion reached, having regard to the line of reasoning adopted.  As a lower court in the hierarchy this Court must, of course, follow the decisions of the Federal Court. 

15. In any event, even if this Court were not, strictly speaking, bound to follow the approach taken in SZQOY in the context of considering s.5(9) of the Act, in my view I should follow the clear expression of principle by the Federal Court. It can only be said that a delegate’s decision is no longer subject to any form of review by the Tribunal if the Tribunal’s core function of review has been completed.

16. On this basis, for the Applicant’s protection visa application to be no longer subject to any form of review by the Tribunal within s.5(9) of the Act it was necessary, at the least, that either the decision had been communicated to the Applicant or irrevocable steps had been taken to have that done in accordance with the notification provisions in the Act. That had not occurred in the present case before the Amending Act came into force on 24 March 2012. Hence the application for review had not been finally determined within s.5(9) of the Act at that date.

17. The First Respondent conceded that on this basis the Tribunal would have fallen into jurisdictional error as set out at [77] above. Thus the matter should be remitted to the Tribunal for redetermination according to law.

I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Judge Barnes.

Date:  7 May 2013