SZSWL v Minister for Immigration
[2014] FCCA 3211
•10 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSWL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 3211 |
| Catchwords: MIGRATION – Application for review of the decision of Refugee Review Tribunal – whether the Tribunal unreasonably exercised a discretion – no jurisdictional error–application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.427, 430, 476, Part 7 |
| Cases cited: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 Chava v Minister for Immigration and Border Protection [2014] FCA 313 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 Singh v Minister for Immigration and Citizenship [2013] FCA 669 Karki v Minister for Immigration & Anor [2013] FCCA 806 Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131 |
| First Applicant: | SZSWL |
| Second Applicant | SZSWM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1121 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 30 May 2014, 10 December 2014 |
| Date of Last Submission: | 10 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 10 December 2014 |
REPRESENTATION
| First Applicant: | In Person |
| Second Applicant: | In Person |
| Counsel for the Respondents Solicitors for the Respondents: | Mr P Knowles Minter Ellison |
ORDERS
The application made on 22 May 2013 and amended on 16 July 2013 is dismissed.
The first and second applicants pay the first respondent's costs set in the amount of $6646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1121 of 2013
| SZSWL |
First Applicant
| SZSWM |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 22 May 2013 and amended on 16 July 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) that affirmed the decision of the Minister’s delegate (“the delegate”) to refuse protection visas to the applicants.
Background
I have in evidence before me today a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”) and two affidavits of Mr Julian Darcy Pinder, solicitor, made on 26 May 2014 and on 2 June 2014 (read with no objections). The following background can be ascertained.
The applicants are citizens of Fiji and arrived in Australia on 30 May 2012 on tourist visas (CB 3 and CB 17). The first applicant (“the applicant”) claimed that he had left Fiji because he was “fearful” for his life (CB 7). He claimed that he and his wife (“the second applicant”) had been targeted because they were “indigenous”, and that after the “military government” came into power all their rights had been taken away, and that the “military government” had taken “ownership of their land” and diminished the role of the “Great Council of Chiefs” (CB 8). Further, the applicant claimed that he was a “true support[er] of the SDL party” and that he was a “campaigning officer”, so his involvement would be “marked” by the military government (CB 9).
The second applicant applied as a “member of the family unit” and did not make separate claims to protection.
The applicants provided a letter from “Liverpool City Church” to support their claims at the interview with the delegate on 8 October 2012 (CB 61), and provided a further letter subsequent to the interview (CB 63). At the interview the applicant also made a number of further claims, including that he had participated in protests and that he had been at a gathering to discuss what was happening in Fiji that had been “interrupted by the military” (CB 87.3).
Further, the applicant sought further time to provide a letter to say that he was a “true supporter of SDL” which the delegate granted. However, the applicant did not provide the document prior to the date agreed to by the delegate. The delegate refused the application for protection visas on 29 October 2012.
The delegate placed “little weight” on the applicant’s claims that he would face harm on return as since he had travelled to Australia he had returned to Fiji twice previously, and that nothing had occurred on these occasions (CB 88). Therefore, the delegate found that the applicant did not have a “profile of interest to the authorities” (CB 88.9). Further, as the applicant had “stated that his involvement in the SDL party was a minor role”, the delegate was not satisfied that he would be of interest to the military on his return to Fiji (CB 92.1 and CB 93.1). Further, that the applicant did not face a “real risk” of significant harm on return to Fiji (CB 95).
The Tribunal
The applicants applied to the Tribunal for review of the delegate’s decision on 8 November 2012 (CB 98 to CB 103). On 10 April 2013 the applicant sought an adjournment to provide further documents, and because of the illness of the second applicant (CB 131). A “Case Note” indicates that the applicants were informed on 15 April 2013 that the Tribunal would not adjourn the hearing, as the claims for the protection visa were those of the applicant, not the second applicant (CB 134).
The applicants attended a hearing before the Tribunal on 16 April 2013 and were accompanied by their migration representative, the Reverend at their church, and two witnesses (CB 136 and [8] at CB 196). The applicants also presented further documentation to support their claims (CB 156 to CB 191). Further, during the hearing, the applicant claimed that he faced harm in Fiji due to his membership and participation in Fijian political groups in Australia ([5] at CB 195).
The Tribunal affirmed the decision of the delegate to refuse protection visas to the applicant on 17 April 2013. While the Tribunal found the applicant to be a “largely credible witness”, it found that his claims to fear harm were “generalised”, and that his evidence did not identify that he personally faced persecution ([10] at CB 196 and [11] at CB 197). Further, the Tribunal held that the applicant’s claimed participation in groups in Australia would not be viewed as
“anti-regime” activity on return to Fiji ([18] at CB 200).
The Tribunal also considered the applicant’s claim in relation to the complementary protection criteria, and found that it was not satisfied that there were “substantial grounds for believing” that the applicants would face significant harm on return to Fiji ([31] at CB 202).
Subsequent to the Tribunal reaching its decision the applicant provided a further letter of support on 19 April 2013 (CB 209). However, he was notified by letter dated 17 April 2013 that the Tribunal would not reopen the case (CB 210).
Application Before the Court
The application before the Court, as amended on 16 July 2013, contains the following ground:
“1. The decision involved an unreasonable exercise of discretion
The RRT did not act reasonably when it refused to give the applicant more time to provide further supporting documentation. The applicant indicated to the Tribunal that he was waiting for supporting documentation from the Fiji Democracy Movement. The Tribunal refused to defer its decision pending receipt of that material. The reason given by the Tribunal was simply that he had had enough time. This did not indicate a balancing of the factors in s 420 of the Act. The Tribunal signed its decision on 17 April 2013 and sent it by registered post to the applicant’s advisor by registered post. The supporting material was submitted to the Tribunal on 19 April 2013. The applicant’s requested a copy of the decision on 1 May 2013 as their adviser had gone overseas.”
Before the Court
The original application to the Court made very general and bare assertions that the Tribunal’s decision was affected by an error of law. The applicants appeared in person at the first Court date and were assisted by an interpreter in the Fijian language. At that time I endeavoured to explain to the applicants that the Court could only be concerned with legal issues and not the merits of their application for protection visas. I referred the applicants to the now defunct Refugee Review Tribunal Legal Advice Scheme (“RRTLAS”) for legal advice.
The applicants filed an amended application on 16 July 2013 that was prepared by counsel, who gave the applicants advice under the RRTLAS. Nothing further has been filed by the applicants.
The matter was set down for final hearing on 30 May 2014. The applicants appeared in person and were again assisted by an interpreter in the Fijian language. The Minister was represented by Mr P Knowles of counsel. The hearing proceeded and the Court heard argument from both sides.
However, the hearing was adjourned to enable the Minister to provide further evidence, as an issue arose towards the end of that occasion before the Court. That evidence was subsequently contained in the affidavit of Mr Pinder of 2 June 2014.
At the resumption of the hearing today, the Minister confirmed that he relied on his previous submissions, and in relation to the matter relevant to the second affidavit of Mr Pinder of 2 June 2014, the Minister made further submissions. I will refer to those later.
Consideration
In relation to the ground of the amended application, the applicants explained that they had had difficulty in obtaining the additional document that they wanted to provide to the Tribunal within the time given by the Tribunal. Further, that they had already presented documents to the Tribunal and that there was an additional document from the Fiji Democracy and Freedom Movement (“the FDFM”) that they wanted to provide. That is reproduced at CB 209. The second applicant, in particular, explained that this letter was received late, but that they had given it to the Tribunal as quickly as that could be done.
The assertion of legal error, in the sole ground of the amended application, is that the Tribunal acted unreasonably in refusing the applicants more time to provide this further documentation from the FDFM.
The ground, as it is stated, makes reference to the Tribunal giving a reason for refusing further time. However, there are no further particulars to the ground. It is of note that there is no reference to this asserted request for further time in the Tribunal’s decision record. Nor, indeed it must be said, elsewhere in the Court Book. However, the first affidavit of Mr Pinder contains a written extract of what is said to be a transcription of a part of the recording of the hearing before the Tribunal.
I note what Mr Pinder has set out at [6] of his affidavit of 26 May 2014:
“[6] From my transcription, the following was .said in English from 2:16:22 to 220:32:”
[First Applicant]: I am yet to receive a support letter from that group.
[Tribunal]: From which group?
[First Applicant]: Fiji Democracy Movement. I am also a member of that group.
[Tribunal]: Right. And what have you done in connection with that group?
[First Applicant]: I used to voice my opinions against the regime back in Fiji.
[Tribunal]: So, have you attended meetings, or ... ?
[First Applicant]: Yes.
[Tribunal]: How many?
[First Applicant]: Three.
[Tribunal]: Where were they held?
[First Applicant]: Revesby.
[Tribunal]: Where in Revesby?
[First Applicant]: [Indecipherable] just close to the railway station.
[Tribunal]: Do you have any particular role in the Fiji Democracy Movement?
[First Applicant]: No. Just an ordinary member.
[Tribunal]: And you voiced your opinion at these meetings?
[First Applicant]: Yes.
[Tribunal]: And have you voiced them in any other fora in Australia?
[First Applicant]: Yeah, that one was the Fiji [indecipherable, possibly 'Religious'] Forum. The others too.
[First Applicant]: Madam, I am asking. I have some documents on the way. Can I lodge them ... right now?
[Tribunal]: You can lodge any document you wish, but the Tribunal will not be delaying finalisation of its decision in anticipation of anything further. The reason for that is your application was lodged in August 2012. The Department made its refusal decision in October 2012. And you sought this Tribunal's review a month later. And we're now in April 2013. So it seems that you've had more than enough time to gather relevant documentation. But of course, if anything is received further by the Tribunal it will be considered, provided it's received before the decision is finalised. But the Tribunal will be moving to finalise its decision as soon as possible.”
The Minister submitted that, while the Tribunal is vested with a discretion to adjourn the conduct of the review from time to time (s.427 of the Act), that, nonetheless, the Tribunal is not under any obligation to exercise its power to adjourn. The Minister relied on various High Court authorities to support that proposition. The Minister further submitted that the Tribunal is not obliged in its decision record to give reasons for the refusal of an adjournment (Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [32]).
Nonetheless, with reference to Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”), the Minister accepted that the discretion to grant an adjournment, or not grant an adjournment, must be exercised reasonably, and further, that the Tribunal must exercise its discretionary powers according to the statutory requirements of procedural fairness. In the current context, that is with reference to Division 4 of Part 7 of the Act, which contains the relevant expression of procedural fairness.
Before the Court, the Minister raised the question as to whether the applicants ever did make a request to the Tribunal to exercise its power to adjourn the review. I understood the Minister’s position to be that the applicants had not made any formal application in this regard.
Initally, the Minister did not concede that any application for an adjournment had been made. The only relevant evidence available to the Court, in this regard, is the evidence of Mr Pinder. In regard to that evidence, the Minister accepted that it was open to the Court to find that there had been such an application made by the applicants (Chava v Minister for Immigration and Border Protection [2014] FCA 313 (“Chava”), in particular, see [65] to [67]).
I note that, looking at the evidence, while the applicant may not have made such a formal request, in the sense of using the exact words, it may be at least implicit in what he asked the Tribunal, and how the Tribunal appeared to understand his question in its reply, that he did make such a request. I will return to this later.
In Li, the High Court unanimously held that reasonableness is a condition of the exercise of a statutory power. That is, in circumstances where the Tribunal makes a decision in relation to the exercise of a statutory discretion, that decision must be reached by reasoning that is intelligible and reasonable. It must be directed to, and intelligibly relate to, the purposes of the power that it is exercising.
For current purposes, what I respectfully draw from what the High Court said in Li is that the Tribunal’s decision will be held to be unreasonable if it were found to be lacking any evident or intelligible justification. In Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 (“Singh”), the full Federal Court gave direction as to the correct approach to take in determining this issue in any individual case.
At [42] of Singh the full Court said that:
“It would be wrong to see Li as creating some kind of factual checklist to be followed and applied in determining whether there has been a legally unreasonable exercise of a discretionary power. Unlike some grounds of review, legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the court, including any inferences which may be drawn from that evidence. Ultimately, however, the outcome will depend on the application of the principles which emerge from Li, and the earlier authorities discussed in it, rather than on mere factual similarities or differences.”
After considering the principles that the High Court had set out in Li, I note in particular what the full Federal Court said at [47] of Singh:
“This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v The King [1936] HCA 40; (1936) 55 CLR 499, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.”
I respectfully understand the full Federal Court to be saying that where there are reasons for the exercise of a power, it is those reasons to which a supervising Court should look, in order to understand why the power was exercised as it was. I note the caution set out by the Full Federal Court as to the danger of this Court going outside the actual reasons given by the Tribunal in relation to the exercise of its power.
I further respectfully note that the Full Court referred to the distinction between reasonableness in a review which concentrates on the outcome of the exercise of power, and reasonableness in a review which concentrates on the reasoning process by which the decision maker arrived at the exercise of the power.
In the current case, there is nothing in the published decision record of the Tribunal that can be said to justify or explain any request for an adjournment by the applicant.
This may be explained with reference to s.430 of the Act, which requires the Tribunal to make a written statement when it makes its decision, and to include in that statement the reasons for the decision and the findings on material questions of fact, and the evidence on which those findings are based.
The matter raised in the affidavit of Mr Pinder (26 May 2014) can reasonably be seen as falling outside the obligation in s.430 of the Act, given its focus on a particular part of the process conducted by the review, rather than the reasoning that led to the outcome in the review.
In this regard, I note what was said by the full Federal Court in Singh at [50]:
“A further control on the manner in which these tribunals may exercise discretions reposed in them is the interaction between their obligations of procedural fairness in the conduct of a review, and the standard of legal reasonableness. In some circumstances, an exercise of power which is said to be legally unreasonable may overlap with an alleged denial of procedural fairness because the result of the exercise of power may affect the fairness of the decision-making process. That will commonly be the case where the exercise of an adjournment power is under review, because refusing an adjournment may deny a person an opportunity to present her or his case: see for example Deane J’s comments in Sullivan v Department of Transport (1978) 20 ALR 323 at 343.”
The starting point for the consideration by the Court is the evidence that is before it. There is nothing in the Tribunal’s decision record of relevance. I do not, respectfully, understand the authorities to necessarily confine the Court’s consideration to that decision record. For example, I respectfully understand the Full Court’s references in Singh to “the evaluation of the evidence” at [42], “where there are reasons for the exercise of the power” (at [47]), and “it is in the explanation given by the decision maker” (at [47]), to refer to all of the evidence before the Court.
In this regard, attention may be directed to [6] of Mr Pinder’s affidavit of 26 May 2014. In determining whether the Tribunal exercised any discretion reasonably and, whether an “intelligible justification” for the Tribunal’s decision can be seen on the evidence, this requires an understanding of whether it can be said, in any particular case, that the applicants sought an adjournment, and, if so, the terms of that request. The first question, then, is: did the applicant seek an adjournment of the review.
I agree with the Minister that there is not, what can be described, as a “formal request” for an adjournment arising in the applicant’s evidence at the hearing before the Tribunal. It must be said that it is not clear, from the actual terms of the applicant’s relevant question to the Tribunal, that he was seeking more time. The applicant is reported as saying “Madam, I am asking. I have some documents on the way. Can I lodge them right now?”
There are a number of inferences that can be drawn as to the applicant’s exact question. The words “right now” import a temporal immediacy to the question. I note here, also, that the evidence before the Court is that the applicants were represented before the Tribunal by Reverend Bill Valevatu, of the Liverpool City Church, and that he was also in attendance at the Tribunal hearing.
The applicants had been previously advised by the Tribunal, by letter dated 8 November 2012 acknowledging receipt of their review application, and sent to the Reverend Valevatu who the applicants had authorised to receive correspondence on their behalf, that “If you wish to provide material for the Tribunal to consider, you should do so as soon as possible” (CB 105).
The letter of invitation to the hearing, which was dated 14 February 2013, advised the applicants of the scheduled hearing date, which was 16 April 2013.
I note that this letter said “Please use this form”. It is clear that the Tribunal referred to the “Response to Hearing Invitation” form “to attach additional information, or any new information, which you wish the Tribunal to consider”. In these circumstances, the applicants would have been on notice that if there were documents that they wanted to give to the Tribunal, they should have done so as soon as possible.
The applicants did provide a number of documents to the Tribunal, including some documents at the Tribunal hearing (CB 156). This provides, in my view, the context for the applicant’s reported statement to the Tribunal “I have some documents on the way”. Reading that at face value, the preferred view of what the applicant meant by his statement, was that he was waiting for some other documents. They were not yet at hand, and he was asking the Tribunal if he could submit them as soon as possible.
This view of the evidence is supported by the subsequent submission of the letter of support sent by the president of the New South Wales chapter of the FDFM, and received by the Tribunal on 19 April 2013.
This view is also supported by the Tribunal’s reported response to the applicant, as set out in Mr Pinder’s affidavit of 26 May 2014 (N – there are two affidavits so references need to be dated!). When regard is had to the first sentence of the Tribunal’s response to the applicant, it is, in my view, reasonably clear that the Tribunal understood that the applicant was asking whether he could lodge further documents. That is, further to the documents that had already been provided, including at the hearing with the Tribunal.
I find, therefore, that the applicant did raise with the Tribunal, at the hearing, whether he could lodge further documents. However, it is important to note the following. First, the applicant did not specify how much time he was seeking in order to be able to lodge these documents. The reference to “can I lodge them right now” would appear to add a temporal limitation to the question that he was putting to the Tribunal.
Second, and contrary to the assertion made in the ground of the amended application to the Court, the evidence does not support the assertion that the applicant indicated to the Tribunal that he was waiting for supporting documents from the FDFM. While there had been, earlier in the hearing, reference to the applicant’s role with the FDFM, and the applicant’s reference to “I have yet to receive a support letter from that group”, it is not clear, whether the subsequent reference to “some documents” refer to a document from the FDFM, or any one of the other number of organisations and individuals, from which the applicant had received documents.
Third, based on the Tribunal’s response to the applicant at the hearing, the Tribunal did not say to the applicant that he could not lodge any further documents. The Tribunal, in fact, said, “You can lodge any document you wish”. In that context, the Tribunal said that he had until it made its decision to do so. This is not a case, for example, of what occurred in Chava, where the Tribunal proceeded to make its decision at the conclusion of the hearing, and delivered its decision orally.
In any event, what can be said is that the Tribunal was not prepared to delay the making of its decision, which it said it would move to make as soon as possible. In these circumstances, therefore, what can be said is that the Tribunal refused to adjourn the review beyond the time it described as, “[a]s soon as possible.”
Before the Court, the Minister proposed at least two matters to argue that there is a reasonable and intelligible justification for the Tribunal’s decision in this regard. The first is the actual reason given by the Tribunal to the applicant, as reported at the hearing. The Tribunal recounted the history of the application for protection before the Minister’s department and before the Tribunal. I have already noted that history earlier in this judgment. The Tribunal said to the applicants that they had already had more than enough time to lodge these documents.
It is important to note that the events in the history of the application, referred to by the Tribunal, were that the applicants had lodged their application for the visas on 15 August 2012. The application to the Tribunal was made on 8 November 2012 and the hearing before the Tribunal, which was also the date of the Tribunal’s refusal of the applicants’ request, was 16 April 2013. What can be inferred from the Tribunal’s statement is that, in these circumstances, the applicants had had over eight months to lodge the documents that they wished to lodge in support of their application for the visas.
Before the Court, the Minister sought to draw relevantly on what was found in Singh v Minister for Immigration and Citizenship [2013] FCA 669 per Foster J (“Singh FCA”) at [30]. This was a case where, amongst other things, the Federal Court considered the question of a refusal for a request for an adjournment of the review (at [29]). Before this Court, the Minister submitted that in the current case, as in the case of Singh FCA, there is no evidence before the Court that the cause of the delay was anything other than what was described as the “fault” of the applicants (respondent’s submissions at [21]).
I note in particular the Minister’s use of that word in [21] of his written submissions. I do not necessarily see the relevant, or important, element here as being one of apportioning fault. Rather, respectfully, and analogously, drawing on the approach taken by Foster J in Singh FCA, it can be said that there is no evidence before the Court in the current case as to what steps the applicants took to procure these documents, or whether they acted in a timely fashion. Before the Court, the applicant submitted that they had had difficulty in obtaining these documents. However, importantly, this was not put before the Court in any evidentiary context.
Even on the applicants’ submissions, there was no explanation from the applicants as to what this difficulty entailed. In this light, what can be said, is that there was no evidence before the Tribunal or, indeed, before the Court now, as to any difficulty or impediment faced by the applicants in procuring the documents, or to explain why the documents had not been obtained in the time available.
Further, I agree with the Minister’s argument that the applicant did not identify to the Tribunal the nature of the evidence that he wished to submit. The applicant did not say why these documents were important to the review, such as to justify an adjournment. Some care must be taken here in reading the excerpt of the Tribunal’s hearing that Mr Pinder has put before the Court. It is the case that, as I said earlier, preceding the applicant’s relevant question, there is reference to the FDFM.
However, as I said earlier, it is not clear that in the applicant’s relevant question to the Tribunal that he was saying that he was waiting for documents from the FDFM. What immediately precedes the question is a reference to other organisations in which the applicant claimed to have voiced his anti-Fijian government opinions. The applicant, in context, made reference to “[o]thers too.”
I also note that there is some difference between the applicant’s evidence to the Tribunal, that the name of the organisation to which he belonged was the Fiji Democracy Movement, and the name of the organisation on the letterhead of the document that was subsequently submitted to the Tribunal, which is the “Fiji Democracy and Freedom Movement”.
On balance, it may be allowed that this was the organisation to which the applicant had earlier referred in his evidence to the Tribunal, given the similarity of the name. However, even if it were to be said that the applicants’ request was to seek time to lodge documents, or a document, from the Fiji Democracy Movement, the nature of the document that was expected, was left unexplained by the applicant. Nor was there anything from the applicant at the hearing before the Tribunal to explain the relevance or importance of the document to the outcome of the review.
Before the Court, the Minister referred to the circumstances before the respective Courts in Li and Singh. The Minister submitted that in both those cases, and for that matter, in another case also before this Court, Karki v Minister for Immigration & Anor [2013] FCCA 806, there was evidence that the adjournment was sought to obtain the document which would be, if produced, determinative of the review.
Some caution must be exercised here. In the Full Federal Court judgment of Singh, the Full Court rejected the Minister’s submission that the disposition of the relevant issue “is to take the facts in Li and engage in a comparison with the facts in this appeal”. As I said earlier, the Full Court in Singh said that the question of determining legal unreasonableness (at [42]):
“…will require careful evaluation of the evidence before the court, including any inferences which may be drawn from that evidence. Ultimately, however, the outcome will depend on the application of the principles which emerge from Li, and the earlier authorities discussed in it, rather than on mere factual similarities or differences.”
However, I do not, respectfully, understand the Full Court to be seeking to prohibit this Court in seeking to understand the principles of the High Court’s reasoning in Li and, for that matter, the subsequent reasoning in Singh in the understanding and in the use of those principles, in the disposition of the issue currently before this Court. As I respectfully understand the authorities, that determination must ultimately be referable to, and evaluative of, the evidence before this Court.
In this light, an element of what was found to be unreasonable in the respective Tribunals’ decisions in Li and Singh, was that on the evidence before the respective Courts, the adjournment was sought to obtain a document critical to the disposition of the review.
Further, that it would have been apparent to the respective Tribunals, that, in fact, the document was critical. In Li, it was a requirement for the visa for which the applicant had applied that the applicant provide evidence in relation to his “skills”. The applicant had failed a relevant skills assessment test, but had provided evidence to the Tribunal as to why the test had miscarried. He sought time to address this.
In Singh, the applicant was required to satisfy, amongst other things, that he had a particular level of English language capacity. The applicant had failed a relevant test but had sought a re-mark of his test in circumstances where he had failed only one element of the test. In that case the Tribunal refused the adjournment to allow the outcome of the re-mark to become available. These were the circumstances in which legal unreasonableness was found.
In the current case, I do not accept that the Tribunal acted unreasonably in refusing to adjourn the review. There was nothing before the Tribunal to show that any document, even if it were to be said to be a document from the FDFM, that would be determinative of the review if it were to be made available.
An inference, that is available on the evidence of what was said at the hearing, can be drawn from the applicant’s words, as reported in the affidavit of Mr Pinder of 26 May 2014. The applicant said that the letter he was waiting for was a “support letter”. Even if it were to be a letter of support, from the FDFM, he had already provided a large number of other letters of support from Fijian community organisations and individuals, in relation to his claimed political participation in events in Fiji, and their relevance to him (see CB 156 to CB 164).
The applicant’s reference at the Tribunal hearing to “others too”, could only be a reference to some, or all of, these supporting letters. In my view, an inference that is available to be drawn from the Tribunal’s response to the applicant, is that there was nothing in the applicant’s request to it, to distinguish this document from the others he had submitted or, indeed, that it was a document of importance to the outcome of the review.
The reference by the Tribunal to “any document you wish,” makes plain that the Tribunal understood, or proceeded on the basis available to it, that the applicant had not explained how the document was of assistance to him. That is, in the circumstances, beyond the assistance provided by the other documents to which he had already referred. Nor did the applicant explain the importance of the document to the review.
I agree with the Minister that in all the circumstances it cannot be said that the Tribunal’s decision lacked an evident, or intelligible justification, such that it can be said to be legally unreasonable. For the reasons that I have stated, the Tribunal’s refusal to exercise the discretion is not legally unreasonable and the sole ground of the application is therefore not made out.
For the sake of completeness, however, I note the following. First, the Tribunal made its decision on 17 April 2013, the day after the hearing, and the day after the applicant’s “request”. I cannot see that any legal error arises simply from that circumstance. The Tribunal made plain to the applicants that it would not delay the making of its decision.
It cannot be said, therefore, that there is any evidence before the Court that the applicants were misled in any way in this regard. To the contrary, the Tribunal’s statement was clear. There was no promise of any specified time within which further documents may be submitted beyond the making of its decision.
Second, as I said earlier, the applicants did send a letter of support from the FDFM to the Tribunal after the hearing. This was received by the Tribunal’s registry according to the stamp that appears in CB 209, on 19 April 2013. The question arises as to whether there was any obligation on the Tribunal to consider this letter. It was in relation to this matter that, as I said earlier, the Minister was given an opportunity to file any further evidence.
The affidavit now in evidence before the Court of Mr Pinder of 2 June 2014, and having regard to the annexure to that affidavit, reveals that the Tribunal posted its decision record to the applicant’s representative on 18 April 2013. I am satisfied on the evidence that the Tribunal’s decision record was posted to the applicants by registered post on 18 April 2013.
While the date of the Tribunal’s decision is noted as being 17 April 2013, it is the case that the Tribunal became “functus officio” on 18 April 2013. Meaning that its power ended on 18 April 2013. That is, with the posting of the letter, the Tribunal’s obligation ceased, given that the Tribunal at that point had no control over its decision record (Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131).
On the best evidence available in the Court Book, the support letter from the Fiji Democracy and Freedom Movement was received by the Tribunal the day after the dispatch of the decision record, that is, on 19 April 2013. There is no error. I note the advice from the Tribunal’s officer, as set out at CB 210 to the applicants, that once the Tribunal becomes “functus officio”, it had no power to take further action in the review.
Conclusion
In all, there is no jurisdictional error arising from the sole ground of the amended application. The application to the Court therefore, as amended, should be dismissed and I will make that order today.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 2 December 2016
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