VWSU v Minister for Immigration
[2006] FMCA 212
•24 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWSU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 212 |
| MIGRATION – Reconstituted Tribunal – reliance on tape recording of hearing by previous member – adverse findings based on evidence at hearing – suggestion that adverse findings could only be made if demeanour of applicant observed – alleged failure of second member to bring an independent mind to the task. PRACTICE & PROCEDURE – Discovery – setting aside notice to produce – production of computer based audit trail of tribunal members’ writing of decision – immunity. |
| Migration Act 1958, ss.422, 424A, 435, & 435(2) Administrative Appeals Tribunal Act 1975 s.60(1) Federal Magistrates Court Rules 2001 r.15.24(2) |
| SAAP v MIMIA [2005] HCA 24 Herijanto v Refugee Review Tribunal and Others [2000] HCA 16 Herijanto v Refugee Review Tribunal and Others (No 2) [2000] HCA 21 Muin v Refugee Review Tribunal and Others; Lie v Refugees Review Tribunal and Others [2002] HCA 30 VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 |
| Applicant: | VWSU |
First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG13 of 2005 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 9 November 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 24 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Appudurai with Mr A. Phillips |
| Solicitors for the Applicant: | Stedman Cameron |
| Counsel for the Respondents: | Mr Knowles |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
That the Refugee Review Tribunal be joined as second respondent.
That the notice to produce filed on 4 November 2005 be set aside and pursuant to r.15.24(2) of the Federal Magistrates Court Rules 2001 neither Respondent is required to produce the documents sought in the notice to produce.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG13 of 2005
| VWSU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This proceeding comes before the court on an application by the first respondent to set aside a notice to produce (the notice) served on her by the applicant.
It was agreed by the parties that this discrete issue concerning the notice be determined and the hearing of the substantive application adjourned to another day.
The notice seeks the production of:
“a copy of the entire word processing file, or files, in which is or are recorded (in whole or in part) the reasons for decision of the tribunal the subject of this application, including a record of ‘track changes’ embedded in that file or files (if such file or files is in MSWord format) or other audit trail of activity embedded on that file or files.”
This application arises in the context of a substantive application for review filed by the applicant on 8 November 2004 and amended by an amended application filed on 9 May 2005 in respect of the Refugee Review Tribunal’s (the tribunal) determination on 23 September 2004 to affirm an earlier decision by the first respondent’s delegate to refuse to grant a protection visa.
The initiating substantive application named only the first respondent and the notice was served on that respondent; although it sought, in effect, the production of material from the second respondent. At the commencement of this hearing, it was agreed between the parties that it was appropriate that the tribunal be joined as second respondent (see SAAP v MIMIA [2005] HCA 24) and that, as a matter of practicality, the proceeding should not be adjourned to allow service of the notice on the second respondent, as counsel for the first respondent had instructions to act for the second respondent in so far as arguing the case for the setting aside of the notice. Counsel for the respondents indicated that no issue would be taken, as it had previously been taken in the first respondent’s written contentions, that the two respondents were independent of each other and that the first respondent did not have the requested material in its possession, custody or control. The application proceeded on its merits as if it had been properly served on the second respondent. I thank the parties for taking, may I say, this functional and sensible approach to the matter. My determination, therefore, addresses the merit of the notice as it may apply to the second respondent.
Background
The applicant is a citizen of Cambodia who arrived in Australia on a one–month visitor visa on 31 August 2003. On 30 September 2003 he lodged an application for a protection visa setting out his grounds for the granting of such a visa as being his fear of persecution by members and supporters of the Cambodian People’s Party and the Cambodian government and authorities.
In a decision dated 8 January 2004, a delegate of the first respondent refused to grant the applicant a protection visa. On 29 January 2004, the applicant lodged with the tribunal an application for review.
On 29 April 2004 the tribunal conducted a hearing at which the applicant was represented and gave evidence. Significantly, the tribunal before whom the hearing took place was differently constituted from that which finally determined the review and which provided the written reasons for affirming the delegate’s determination. The reconstitution of the tribunal was pursuant to s.422 of the Migration Act 1958 (the Act).
In the tribunal’s written reasons for decision it examined and reiterated issues raised and points made at the hearing by both the then presiding member (the first member) and the applicant. The second member made findings of fact based, on the face of it, upon what transpired at the hearing. It is to be noted that the second member declined to conduct a further hearing before her and never witnessed the applicant give evidence.
The applicant’s purpose in serving the notice to produce
To give the contentions of the respective parties context, it is helpful to set out what I understand to be the applicant’s objective behind the service of the notice.
Arising out of the fact that the tribunal was reconstituted since the hearing, without the conduct of a further hearing by the second member, the applicant and his advisers contend that the second member:
(i)did not listen to the taped recording of the hearing; or
(ii)could not have heard all of the tape as it was of poor quality;
(iii)formed a prejudicial view of the applicant’s credit which could only be based upon his demeanour which could not have been observed by the second member;
(iv)gave written reasons that were influenced by draft reasons prepared by the first member; and/or
(v)simply adopted existing written reasons prepared by the first member, and only changed such necessary particulars to leave an impression the reasons were prepared by the second member.
In order to substantiate these contentions, it is necessary, the applicant argued, for a disclosure of the word processing audit trail to show that the reasons for decision were, to at least some degree, written by the first member. It follows, it was contended, that should that be the case, the applicant would have available to him an argument that the decision was affected by jurisdictional error in that the second member did not bring an independent mind to the determination of the applicant’s case and failed as a consequence in an imperative statutory obligation.
Whilst at the hearing the parties touched on the substantive issues to be determined at a later hearing, it is evident that for the purpose of the application before me, the only relevant basis upon which the notice is founded is whether the decision was to some degree written or influenced by written material prepared by the first member.
An ancillary argument proffered by the applicant, and which seems to be a new ground raised in the applicant’s contentions of fact and law in relation to the substantive application, was that should the second member have had access to the first member’s draft reasons, as postulated by the applicant, then any views as to the applicant’s credit contained therein would fall within the category of matters which the second member was required to convey to the applicant in accordance with s.424A of the Act.
In my view issues as to whether the second member listened to the tapes, or whether the tapes were faulty and incapable of informing the second member, or whether there was a need for the second member to have observed the applicant before she could make findings that reflected on his credit, are matters properly for argument and determination at the hearing of the substantive application.
I understand, however, that the applicant raised these issues in this proceeding in support of a general inference that there is something manifestly untoward about the second member’s reasons and, as a consequence, the applicant’s endeavour to have disclosure as sought is justified. That untowardness arises, as I understand the applicant’s position, from the assertion that findings reflecting on credit were made which could only sensibly be made from observations of the demeanour of the applicant and that the tapes were faulty and could not have afforded the second member the opportunity of hearing what took place at the hearing. I have heard the tapes from beginning to end at the proper speed. From my listening to the tapes and reading the reasons for decision, I can say; first, the tapes are not faulty and were very clear and capable of giving a listener a full understanding of what took place from an auditory perspective; and secondly, based upon the evidence given and recorded on the tapes, the findings of the second member as to what she accepted and rejected of the applicant’s evidence were open to her and do not exhibit a finding of credit that could only be determined from observation of the applicant’s demeanour.
The respondents’ contentions
The respondents contend that the documents sought under the notice bear no apparent relationship with the stated grounds for review as set out in the amended application for review filed on 9 May 2005. The applicant raised issues in his written contentions of fact and law filed on 26 July 2005 about draft reasons prepared by the first member and the prospect of the second member adopting them in whole or part in her reasons. The nexus between the grounds for review as particularised by the applicant and the notice is sought to be drawn by reference to the credit of the applicant and that the new member’s findings on matters that appear to go to credit could only have arisen by prejudicial assessments by the first member that took the form of draft reasons for decision to which the second member was exposed and which were adopted by her.
Having considered the parties’ competing contentions about the relevance of the material sought to be discovered to the grounds set out in the substantive application for review, I do accept that there is a relationship, albeit tentative, between the grounds specified and the documents sought.
The main submission of the respondents, however, was that the documents sought fall within the immunity afforded under s.435 of the Act and as such the tribunal cannot be compelled to produce those documents. Section 435(1) states:
“A member has, in the performance of his or her duties as a member, the same protection and immunity as a member of the Administrative Appeals Tribunal.”
The immunity that the Administrative Appeals Tribunal has is set out in ss.60(1) of the Administrative Appeals Tribunal Act 1975. That subsection states:
“A member has, in performance of his or her duties as a member, the same protection and immunity as a Justice of the High Court.”
Section 435 of the Act was considered by her Honour Gaudron J in two cases, Herijanto v Refugee Review Tribunal and Others [2000] HCA 16 and Herijanto v Refugee Review Tribunal and Others (No 2) [2000] HCA 21. The first of the Herijanto cases considered an attempt by a party to interrogate tribunal members as to how a decision was reached. In that case at [16] her Honour stated:
“There is no difficulty in saying that, in an appropriate case, judges may be compelled to disclose the record on which they have acted. In the context of the judicial process, ‘the record’ bears a clear meaning. The same is not necessarily true in the context of administrative decisions. Thus, it is preferable to identify what is within the immunity, rather than that which is outside it. And in my view, the immunity is immunity from disclosing any aspect of the decision-making process. That is what is required to ensure freedom of thought and independence of judgment.”
In the second Herijanto case her Honour had to consider an application for discovery of the tribunal’s computer records and related documents that went to the tribunal’s decision making process. In paragraphs [9] and [10] her Honour stated:
“[9] So far as the plaintiffs seek discovery to ascertain whether the individual members concerned with their applications gained access to the Pt B documents stored in computer databases, they seek to achieve indirectly what they cannot achieve directly by means of interrogatories. The protection afforded to individual members of the tribunal by s 435(1) of the Act would be illusionary if, although they could not be compelled to disclose their decision-making processes, those processes could be revealed by analysis of computer records.
[10] In my view, the protection and privilege conferred by s 435(1) of the Act extends not merely to disclosure by the individual member concerned, but the revelation, by whatever means, of any aspect of his or her decision-making process. ”
In Muin v Refugee Review Tribunal and Others; Lie v Refugees Review Tribunal and Others [2002] HCA 30; 190 ALR 601 his Honour Gleeson CJ made the following observations about the operation of s.435(1) at [25]:
“Section 435(1) of the Act and s 60(1) of the Administrative Appeals Tribunal Act 1975 (Cth), read together, provide that tribunal members enjoy the same protection and immunity as a justice of this court. It places a tribunal member in a false position, inconsistent with that immunity, to expect a member, in proceedings challenging his or her decision, to go outside the published reasons for decision and explain the process of research and consideration leading up to the making of the decision. Furthermore, this court has taken pains to discourage tribunals and members from endangering their impartiality by assuming the role of protagonist in proceedings challenging their decisions.”
Again in the Muin and Lie case his Honour Callinan J at [299] observed:
“The entire, general, protective immunity of a justice of the High Court is conferred on the member of the tribunal by s 435(1) of the Act. The rationale for immunity from compulsory disclosure is the assurance that judges should be free in thought and independent in judgment. That rationale naturally extends to an immunity from disclosing any or all aspects of the decision-making process itself.”
In my view, the documents sought to be discovered by the notice are documents clearly of a nature and effect best described as intrinsically associated with and arising out of the decision–making process of the tribunal. By his application the applicant seeks to ascertain the decision making process adopted by the second member by this method, in a similar fashion, albeit indirectly, as he could obtain by direct interrogation of the member involved as to whether she had before her and used material composed on a word processor by the first member. It is, in my view, trite law that the member could not be interrogated to ascertain the validity of the applicant’s suspicions that prejudicial written material was prepared by the first member and that material influenced and infected the second member’s decision. It also follows that he cannot obtain indirectly by this application what he could not do through interrogation. Having regard to the authorities recited above, the notice should be set aside.
Although the above is sufficient to set aside the notice, there was one other contention of the applicant I believe I should address.
The applicant developed the argument, predicated on the assumption that the first member prepared, using a word processing application, material which was used by the second member, that such material constituted “information” which enlivened the tribunal’s obligation under s.424A to give it to the applicant and invite him to comment on it. Consequent on the failure to comply with s.424A, it was contended, the tribunal made an error going to jurisdiction which affords the relief sought in the substantive application. Therefore, discovery of the material sought is a very necessary step to establishing this foreshadowed ground for review.
In this regard I accept the contention of the respondents that the material sought to be discovered is clearly information which does not fall within s.424A in that it relates, in my view, to the tribunal’s thought processes, findings and determinations (see VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 at [24]). Accordingly, discovery as sought in support of this foreshadowed ground is untenable and the notice should be set aside.
Conclusion
The notice should be set aside as it attempts to frustrate and circumvent the immunity afforded the tribunal’s decision–making process under s.435 of the Act.
The contention that discovery was relevant to the applicant’s foreshadowed ground for review based on an alleged failure by the tribunal to follow the statutory imperative imposed under s.424A of the Act in untenable as the material sought to be discovered is not material properly described as “information” under s.424A.
I certify that the preceding twenty–nine (29) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date:24 February 2006
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