WAGO v Minister for Immigration
[2004] FMCA 412
•28 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WAGO v MINISTER FOR IMMIGRATION | [2004] FMCA 412 |
| MIGRATION – Protection visa – whether procedural fairness – jurisdictional error – failure to give Applicant opportunity to call witness to give evidence when available – rejection of witness statement. |
Migration Act 1958 (Cth), ss.424A, 424A(1), 426(3)
Plaintiff S157 (2003) 195 ALR 24
MIMIA v SGJB (2003) FCAFC 290 (16 December 2003)
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502
Muin v Refugee Review Tribunal (2002) 190 ALR 601
NABC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 317
Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212
WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 266
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65
NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003)
SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129
| Applicant: | WAGO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | WZ 89 of 2003 |
| Delivered on: | 28 June 2004 |
| Delivered at: | Melbourne (by video link to Perth and Adelaide) |
| Hearing Date: | 3 February 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr G Barrett QC |
| Solicitors for the Applicant: | Refugee Advocacy Service of South Australia |
| Counsel for the Respondent: | Mr P Macliver |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Court declares that the decision of the Refugee Review Tribunal made on 28 March 2003 is invalid and of no effect.
The application be remitted to a differently constituted Refugee Review Tribunal to be determined according to law.
The Respondent shall pay the Applicant’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules based upon Schedule 1 of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
WZ 89 of 2003
| WAGO |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application seeking review of a decision of the Refugee Review Tribunal (the RRT) made on 28 March 2003. The RRT decided to affirm a decision not to grant a protection visa to the applicant.
The application in this matter was originally filed in the Federal Court of Australia on 16 April 2003. The proceedings were transferred by the Federal Court to the Federal Magistrates Court on 22 May 2003. The application had been listed for hearing before this court on 18 September 2003 and on that date was adjourned for hearing on 28 October 2003 when it was further adjourned for hearing on 5 December 2003. The applicant had been granted leave to file and serve an amended application and other directions were made when the matter was before the court on 28 October 2003.
On 28 November 2003 the hearing date of 5 December 2003 was vacated and the application fixed for hearing on 3 February 2004. The time for filing and serving of amended grounds of appeal was extended to 18 December 2003. An amended notice of appeal was filed on 17 December 2003. Ultimately at the hearing on 3 February 2004 the applicant abandoned the grounds of appeal in the original notice of appeal and in the amended notice of appeal. Instead reliance was placed upon a "further amended notice of appeal" dated 29 January 2004 which provides the following ground:
“1.The Tribunal failed to accord common law procedural fairness to the applicant in making adverse findings of credibility against him and his witness without hearing sworn evidence from the witness or receiving a psychological report.”
Leave was granted to the applicant to rely upon the "further amended notice of appeal" and it was noted that the previous grounds set out in the original application and amended notice of appeal were abandoned. Counsel for the applicant further sought to rely upon a new ground which was announced to the court at the time of the hearing. Counsel for the respondent quite properly did not object to reliance upon the "further amended notice of appeal" or the new ground announced in court to be relied upon on the basis that the respondent would have an opportunity to file written submissions in relation to the new ground of appeal which, as I have indicated, was announced in court and is in the following form:
“2.The Tribunal did not comply with s.424A of the Migration Act 1958.
Particulars
1.The Tribunal did not give to the Applicant particulars of information that it considered would be the reason or part of the reason for affirming the delegate's decision.
2.The information was that the Tribunal intended or contemplated disbelieving the oral evidence of the Applicant and the written evidence of his witness regarding the events following the publication of the newspaper articles by reason of matters associated with the articles and their publication.
3.The tribunal did not ensure that the Applicant understood why the information was relevant to the review.”
It is clear from a chronology of events in terms of court proceedings and grounds for appeal that there has been a significant refinement and indeed abandonment of some grounds of appeal throughout the time the matter has been before the court. Ultimately there are now two grounds of appeal to be considered in this judgment.
It should be noted that the applicant in the present application had been the subject of an earlier decision by the RRT on 5 July 2001 which had also affirmed a delegate's decision to refuse to grant a protection visa to the applicant. That RRT decision was the subject of an application for judicial review before the Federal Court of Australia. On 18 April 2002 French J dismissed the application for review. An appeal from his Honour's decision was then made to the Full Court of the Federal Court and on 20 December 2002 that court allowed the appeal. In allowing the appeal the Full Court then remitted the matter to the RRT for re-determination.
A second RRT hearing was held on 10 March 2003 resulted in the decision being made on 20 March 2003 which is the subject of the present application before this court. The applicant had appeared before the RRT to give oral evidence by video-conference on 10 March 2003 and was assisted by an interpreter in the Persian language. He was represented by Ms Alison Ryan of the Refugee Advice and Casework Service (Australia) Inc, solicitor and migration agent.
The applicant is a citizen of Iran who arrived in Australia on
30 September 2000. He is a single man who before leaving Iran had been self-employed as a hairdresser for 22 years in Ahwaz. Shortly after his arrival in Australia he was interviewed by an officer of the Department of Immigration and Multicultural Affairs ("the department"). In that interview on 5 October 2000 the applicant was asked, “Why did you leave your country of nationality (country of residence)?” With the aid of an interpreter he is alleged to have stated the following:
“Because of the atmosphere in Iran. I was being harassed by the style of haircut - it was a Western-style haircut. Being harassed by Komieteh Amaken - part of a security/disciplinary forces. This group surveys all businesses - they said don't do this kind of haircut. I had to close the shop and then I reopened it. About a year later I worked in another area as a hairdresser and again I was harassed by Basiji.”
(Court Book p.20)
In response to the question, "Do you have any reasons for not wishing to return to your country of nationality (residence)?" the applicant replied:
“Can't cut hair in Iran to the style requested by customers. Without customers I have no work.”
(Court Book p.21)
The applicant had also told the interviewing officer that he had been summonsed to the premises of the Komieteh in approximately September 1997 and had received 40 lashes, had been fined 10,000 toman and his shop had been closed for three months. He did not claim to have any association or involvement in activities against any government or political group. He did not then make any claims in relation to writing newspaper articles critical of the authorities.
In the application for a protection visa dated 27 February 2001 (court book page 27) further details are provided in relation to the reason why the applicant left his country. In addition, he refers to starting to write articles for newspapers and claims that he did this in addition to his main job. He stated that his first article "was about the parliament (majles) members and their shortcomings". He states it, "gained a huge popularity." He refers to his brother being severely burnt in the year 2000 whilst working in a power station. His brother died of the severe burn injuries and it is claimed that the incident occurred as a result of hot steam from decayed pipes and that his brother had written to authorities on three occasions advising them of the inappropriate conditions of the job and reporting the decay of the pipes.
Articles were then written by the applicant, according to his application, about the accident concerning his brother and those articles were published. He refers to another article called "Water, Water Abadan" which was published, he claims, with a "big title". It was about an Abadanian strike over water and he claims that when he wrote the article he faced harsh and frank harassment and threats from Ettela'at. The applicant referred to writing some "anti-regime articles" and in his application for a protection visa had referred to the government being after those people who were somehow involved in the Abadan uprising and hence those who "nourished it by their writings". He further states “Iranian authorities do not tolerate the freedom of press and treat the dissenting writers very harshly.”
It is evident, therefore, that having regard to the grounds of appeal now raised that a key and significant issue in the present application is the writing of articles by the applicant of the kind described briefly in this judgment and otherwise referred to in the material before the RRT.
It is useful to set out the chronology of correspondence, hearings and submissions against the backdrop of the application before considering the submissions made by the parties in this application. After making application to the RRT on 22 March 2001 to review the delegate's decision of 21 March 2001 refusing the grant of a protection visa, written submissions were made to the RRT by the applicant's adviser on 16 May 2001. It is not in dispute that the applicant gave evidence before that first RRT hearing which was held on 24 May 2001. In the written submissions for that hearing reference was again made to the publication of the newspaper articles. By letter dated 25 May 2001 the first RRT referred to information given to the applicant at the hearing on the previous day and invited to comment on the information which it was asserted would be the reason or part of the reason for deciding the applicant is not entitled to a protection visa.
The applicant through his adviser and by letter dated 28 May 2001 provided a response to the first RRT's letter of 25 May 2001 and made further submissions on the applicant's behalf. Ultimately the first RRT made a decision on 5 July 2001 affirming the delegate's decision to refuse the protection visa. As indicated earlier, this was the first RRT decision which became the subject of review by French J and was considered by the Full Court of the Federal Court.
At the hearing before a differently constituted RRT on 10 March 2003 (the second RRT) the applicant gave further oral evidence. The second RRT also had access to the tape-recordings of the proceedings before the first RRT hearing. The applicant at the second hearing was assisted by an interpreter and was represented. The applicant's representative forwarded submissions in writing together with relevant documents to the second RRT on 25 and 27 March 2003. It is relevant to refer to parts of those submissions which highlight the availability of evidence from Mr N who had provided a statutory declaration for the applicant declared on 21 March 2003. In the written submissions dated 24 March 2003 forwarded by facsimile on 25 March 2003 the applicant's representative states the following:
“We note that Mr V N is willing to provide further evidence to the Tribunal if the evidence provided is not accepted or more details are required.
...
If the written evidence of Mr V N is not accepted we request that the Tribunal take oral evidence from Mr N to provide any further details required by the Tribunal.”
(Court Book pp.315 and 316)
It is noted that in the statutory declaration from Mr N he relevantly states in relation to the newspaper articles referred to by the applicant in his documentation before the tribunal the following:
7. On one day after the article was published (the applicant's) I passed by hair salon. There were a number of people gathering outside his shop including Iranian authorities. I asked someone what was happening and was told that (the applicant) was in trouble because of the article that was published about the Abadan water crisis.
8.The newspaper was closed and after that article was written and was still closed when I left Iran. After I left Iran I'm not sure what happened to the newspaper.
(Court Book p.319)
It is also relevant to note that in the statutory declaration Mr N declares that he read two articles by the applicant which had been published. The first article he read was an article "which criticised members of the parliament". He further stated that the "article drew attention to the fact that members of parliament would make many promises when they were trying to get elected". He states:
“The article criticised the parliamentarians on the basis that once they were elected they would not complete what had been promised but simply gather wealth for themselves and leave the parliament with their wealth.”
(Court Book p.319)
In relation to the article on the Abadan water crisis the witness in his statutory declaration states:
“The article criticised the authorities for more empty promises and the article held the authorities responsible for the people who were killed.”
(Court Book p.319)
During the course of the hearing the court received as an exhibit by consent a transcript of the hearing before the RRT on 10 March 2003. In the transcript there is an exchange between the RRT member and the applicant's representative in the following terms:
“Tribunal Member: Ms Ryan, were there any other matters that you thought we hadn't covered? Now, you need to try and get that statement from Mr N, what sort of time frame do you think we're looking at there?
Ms Ryan: Probably could be done by the end of this week but we'll take to Monday just in case there's problems getting it from Melbourne and getting a witness to (inaudible).
Tribunal: Sure. OK, well (applicant) I'll wait on getting the statement from your witness and then I'll proceed to make a decision on your application.”
(Exhibit A1 p.20)
Earlier in the transcript, reference is made to the same witness (though it is noted that the spelling is inconsistent throughout the transcript) when the tribunal states:
“Now, you have indicated that you want the Tribunal to take evidence from a witness (Mr N).
Applicant: Yes.
Tribunal Member: Now, he can't be with us today because it's a public holiday in Melbourne today so I understand what your representative is going to do is she's going to get a written statement from him and on the basis of that I can look at whether I need to have a further hearing to take oral evidence from him.
Applicant: If it was necessary of course.”
(Exhibit A1 p.3)
It is clear from the chronology of events and the background information to which I have referred that a key issue to be relied upon by the applicant in his application for a protection visa related to the publication of the newspaper articles and in support of that ground the applicant had offered to provide not only a statutory declaration of a corroborating witness but also in the event that that witness' evidence was not to be accepted or more details required, then the witness would be made available to give oral evidence and to provide any further details required by the RRT.
In its reasons for decision the RRT certainly considers the issue of the newspaper articles. It accepted the evidence of Mr N that the applicant did publish the articles in Nour-e-Khozestan, "including an article criticising members of parliament and an article about the water problems in Abadan". It was further accepted that for whatever reason the applicant did not outline all his claims at the interview on 5 October 2000.
The RRT further states in its reasons the following:
“ … Since for reasons given above I accept that the Applicant did publish articles in the newspaper Nour-e-Khozestan, including the two articles Mr N says he read, I have determined that it is not necessary for me to delay making a decision in this matter to enable the Applicant's representatives to provide a psychological report in relation to the Applicant. I have likewise determined that it is not necessary for me to hold a further hearing to take oral evidence from Mr N.”
(Court Book pp338-9)
It is appropriate at this point to note that the psychological evidence referred to by the RRT arose in circumstances where the applicant had claimed during the course of the hearing to be suffering from psychological difficulties. It is sufficient to refer to that part of the transcript of the hearing before the RRT where the issue of the psychological state of the applicant was raised. The following exchange is relevant:
“Tribunal Member: ... what sort of things did you say in that article?
Applicant: I wrote that the people of Abadan, they've committed, people of Abadan have a demonstration because of the salty and muddy water and the sewerage and water were mixed up with, sorry, portable water was mixed up and people were using it and they ended up having many different types of illnesses and diseases and ... not sure about the word ... different types of amobeas sorts of things in water causing people sicknesses. Parasites.
Tribunal Member: Did you say anything else in that article?
Applicant: I don't have it in my mind now and I have been in this camp for 32 months and I have forgotten about my normal life, my own life. If it was needed probably could ask my witness. He might be able to give me more better answer details.
Tribunal Member: You think that he would have a clearer recollection of the article than you do?
Applicant: He's been out for two years now, although he has his own set of problems, but coming to mental state he might be in a better mental state and freer mental state than I am in.”
(Exhibit A1 p.9)
In considering the issue of the newspaper articles the tribunal makes the following relevant findings (court book 339):
“While, as referred to above, I accept the Applicant's evidence that between June/July 1999 and June/July 2000 he wrote four or five articles which were published in the newspaper Nour‑e-Khozestan, I do not accept that, as stated by the Applicant and Mr N, after the last of those articles appeared the editor was arrested, the newspaper ceased publication and the Ettelaat came looking for the Applicant.”
(Court Book p.339)
In providing reasons for the conclusion to which I have just referred the RRT then had cause to consider the applicant's evidence and the material it had received from Mr N. It suggested that the applicant's evidence concerning his fears of returning to Iran on the basis that he was a political writer oversimplified the position and then referred to a US State Department report. It further recites how it had put to the applicant that there was no suggestion that Nour-e-Khozestan had suspended publication at any point (see court book pages 342-343).
Significantly, in my view, the RRT then provided further reasons as follows, which clearly made reference to the statutory declaration of Mr N:
“I prefer the evidence contained in the Radio Free Europe/Radio Liberty Iran report referred to above (Bill Samii, 'Emergency in Khuzestan', RFE/RL Iran report, Vol 3 No 42, 6 November 2000 downloaded from accessed 8 March 2003), which, as I have said, I regard as a reputable source, to the evidence of the Applicant and Mr N to the extent of any inconsistency. I do not accept that, as the Applicant and Mr N state, the newspaper Nour‑e-Khozestan ceased publication after the Applicant's article about the water problems in Abadan was published in June/July 2000. I consider that the evidence contained in the Radio Free Europe/Radio Liberty Iran report referred to above indicates that the criticisms which the Applicant said he made in his articles about members of the Parliament and about the water problems in Abadan were within the bounds of the sort of criticism which is permitted in Iran having regard ...
Since I consider that the last article which the Applicant published, relating to the water problems in Abadan, was within the bounds of the sort of criticism which is permitted in Iran and since the arrests of journalists are well reported, I do not accept that, as stated by the Applicant and Mr N, the editor of Nour‑e-Khozestan was arrested after the article was published, nor that the Ettelaat subsequently came in search of the Applicant and that this prompted the Applicant to leave Iran. …”
(Court Book p.345)
The RRT otherwise rejected the applicant's reasons for leaving Iran and referred to his ability to travel on an Iranian passport in his own name and found that the applicant was of no interest to Iranian authorities at the time he left Iran. It further found that if he returned to Iran it did not accept that there is a real chance he would be arrested, interrogated, tortured or executed or otherwise persecuted by reason of the articles he wrote.
The RRT did accept that in 1997 the applicant received 40 lashes, was fined 10,000 tomans and his shop closed for three months because he gave people Western-style haircuts, but did not accept that if he returned to Iran now or in the foreseeable future and resumed working as a hairdresser he would give people Western-style haircuts and did not accept that he would have no customers if he could not give people the Western-style haircuts they wanted.
Further reference was made to Mr N's statutory declaration when the RRT stated (court book 359) that it did not accept that "as Mr N said in his statutory declaration, the applicant's brother ... has been questioned by the Iranian authorities on a number of occasions about the applicant's whereabouts". The tribunal also said:
For reasons given above, I have rejected Mr N's evidence that, after the applicant's article about the water problems in Abandan was published in the newspaper Nour-e-Khozestan the newspaper was closed, the editor of the newspaper was arrested and the authorities came looking for the applicant and his shop.
It was submitted on behalf of the applicant relying upon the grounds of appeal that there had been a denial of procedural fairness of a kind which would attract, as I understand the submission, a finding that there had been jurisdictional error.
Detailed reference was made to the chronology which I have set out concerning the witness' evidence of Mr N and the availability of that witness to give oral evidence if the statutory declaration was not accepted. Hence, it is submitted upon the tribunal deciding to disbelieve the applicant and his witness procedural fairness would require the tribunal in all the circumstances to at least give the opportunity to the applicant to call his witness so that witness could be examined and/or cross‑examined before the tribunal in order to provide further details and opportunity for his evidence to be tested and accepted by the tribunal that the newspaper articles which were written was not a sufficient basis upon which the tribunal might proceed to make its decision and therefore reject the need to either call Mr N or indeed permit the applicant to provide psychological evidence as foreshadowed. The applicant, it was submitted, was therefore misled into thinking they need not press any further on the issue of additional oral evidence and/or to press for a time to obtain a psychological report. It was submitted that these matters were sufficient to constitute procedural fairness and the absence of natural justice as described by the High Court in Plaintiff S157 (2003) 195 ALR 24.
It was further submitted that the circumstances of the present application are analogous to the facts and circumstances in the case of MIMIA v SGJB (2003) FCAFC 290 (16 December 2003) (SGJB) where the Full Court of the Federal Court found an applicant was misled into thinking it was unnecessary to call a witness to give oral evidence.
Specific reference was made to the following paragraphs in that decision:
“18 Dealing with the issue of procedural fairness, the learned primary judge said:
`[86] In my view, the effect of the evidence at the oral hearing to which I referred at [37] to [41] above, supports Mr Barrett's submission that the RRT persuaded the applicant that it was unnecessary for Mr Chohaili to give oral evidence.
[87] The RRT said:-
"He told the Tribunal he had never met or spoken directly with Mr Chohaili and that he was satisfied that Mr Chohaili had adequately expressed his views in writing and did not need to provide oral evidence."
I do not think this is an accurate statement. The applicant's evidence was that he had spoken by phone to Mr Chohaili although it is true that he had not met him. The statement that the applicant was satisfied that Mr Chohaili "had adequately expressed his views in writing" were not the applicant's words, although he did agree, in answer to a leading question, that he did not need the witness to give oral evidence, see at [41].
[88] It seems to me that the passages which I have quoted from the transcript indicate that the RRT member gave the applicant the impression, not only that Mr Chohaili's evidence was favourable but also that the evidence would be accepted.
[89] The question which then arises is whether, prior to making a finding that it did not accept Mr Chohaili's evidence, the RRT came under an obligation of procedural fairness to give the applicant notice of its intention to make that finding and to provide him with an opportunity to put submissions against it.
[90] A decision as to whether a person is to be granted a protection visa affects the person's rights, interests and expectations. The rules of procedural fairness apply unless they are excluded by plain words of "necessary intendment" in the Act; see Annetts v McCann (1990) 170 CLR 596 at 598; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [90], [126] and [171] - [172].
[91] Division 4 of Part 7 of the Act deals with the conduct of a review by the RRT. There are two provisions of Division 4 which need to be considered in this factual context in order to determine whether the Act excluded any common law obligation of procedural fairness in relation to the RRT's findings about Mr Chohaili's evidence.
[92] Section 424A(1) provides that the RRT must give to an applicant particulars of any information that the RRT considers would be a reason or part of the reason for affirming the decision under review. This obligation does not apply to the categories of information referred to in s 424A(3).
[93] Section 426(3) of the Act provides that if the RRT is notified by an applicant that he or she wants the RRT to obtain oral evidence from a person, the RRT must have regard to the applicant's wishes but is not required to obtain evidence, orally, or otherwise from that person.
[94] Here, the question is whether each of those sections constitutes a code which thereby excluded any obligation of the RRT to notify the applicant that it proposed to reject Mr Chohaili's evidence after first having given the applicant the opposite impression. In my opinion, these sections do not, in clear terms, deal with the residual common law obligations of procedural fairness which must be assumed to apply; see the discussion of s 424A by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte "A" (2002) 185 ALR 489.
[95] I do not consider that the RRT's impressions about the credibility of a witness's evidence is "information" which falls within s 424A; see NAIH of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1010 at [8] per Branson J.
[96] Moreover, I do not consider that s 426(3) had any bearing upon the RRT's obligations in the circumstances which arose in this case. This is because the question was not whether the RRT should have had regard to the applicant's wishes. The RRT had in effect called Mr Chohaili in his written testimony. The question which arose was whether, in the light of what the RRT had said to the applicant about the favourable nature of Mr Chohaili's evidence, it came under an obligation to notify the applicant that it proposed to reject Mr Chohaili's evidence in order to achieve procedural fairness.
[97] Accordingly, it seems to me that the common law rules of procedural fairness applied to the circumstances of this case. The RRT could not make a finding adverse to the applicant's interests, that is by rejecting Mr Chohaili's evidence, without first giving the applicant an opportunity to make submissions against that finding.
[98] In my view, the applicant had a "legitimate expectation" that the evidence would be accepted. This did not compel the RRT to accept the evidence but it did require the RRT to give him notice and an adequate opportunity to put a case against the rejection of Mr Chohaili's evidence; see Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648; Kioa v West (1985) 159 CLR 550.
[99] It is true that there was no evidence before me as to what Mr Chohaili might have said if he was called to the witness box. As a general rule, a denial of procedural fairness will not of itself result in jurisdictional error unless it can be seen that compliance with the rules of natural justice could have made a difference to the outcome; see Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82.
[100] Here, the denial of procedural fairness deprived the applicant of the opportunity to make submissions about the evidence of an independent witness of fact whose evidence could, if properly considered, have resulted in a different view of the credibility of the applicant's case and therefore a different outcome before the RRT. This constituted jurisdictional error prior to the enactment of the privative clause but it is not reviewable under s 474 of the Act if the Hickman provisos are satisfied; see NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at [648] per von Doussa J with whom Black CJ and Beaumont J agreed.'
…
23.The RRT is required to exercise its statutory power under the Act in a way which is procedurally fair. A denial of procedural fairness may result in a decision made in excess of the jurisdiction of the RRT under the Act: Re Refugee Tribunal Ex parte Aala (2000 204 CLR 82 at [4], [17], [39] - [41], [170] - [171]. A decision of the RRT taken in breach of the rules of natural justice is not one within the scope of the protection afforded by s 474 of the Act. It is not a decision to which s 474 of the Act applies: S157 at [38], [83].
….
27 The learned primary judge found that the common law rules of procedural fairness in the circumstances of this case meant that the RRT `could not make a finding adverse to the applicant's interests, that is by rejecting Mr Chohaili's evidence, without first giving the applicant an opportunity to make submissions against that finding'.
….
33 If the RRT was, at the time of the exchange between it and the applicant, of the view that the statement of Mr Chohaili `exaggerated the situation for Mandaeans in Iran', and that his evidence was only given to attempt to corroborate the exaggerated and embellished evidence of the applicant himself and that the RRT intended to reject the evidence, then the RRT was obliged by the rules of procedural fairness to advise the applicant of that fact and to give him the opportunity to make submissions as to why the evidence was not exaggerated, was credible and ought not to be rejected. Further, procedural fairness required that the applicant be given the opportunity to obtain further evidence from the witness to elaborate upon the general statements which he made, and set out the circumstances which led him to hold the opinions contained in the statement, especially the statement that the events stated in the applicant's claims were `entirely plausible and factually acceptable' and `do not fall outside of the proven claims of persecution against members of the Mandaean faith'.
….
36 In Re Refugee Tribunal Ex parte Aala, McHugh J said:
`[101] One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding (Mahon v Air New Zealand Ltd [1984] AC 808 at 820 - 821).'
This was the obligation which the RRT was required to discharge in the conduct of its enquiry and determination of the applicant's claims to be a refugee and entitled to a protection visa.
37 There is no universal proposition that before the RRT ever makes a finding adverse to the applicant it is necessary for the RRT to put to the applicant the concerns which are inclining the RRT towards making an adverse finding; the procedure is inquisitorial and not adversarial: Re Refugee Tribunal Ex parte Aala at [76], [172]. The risk of an adverse finding may inhere in the issues to be decided. However, the practical content of procedural fairness in the present case was determined by the conduct of the RRT which led the applicant to an erroneous view as to how the evidence of Mr Chohaili would be used by the RRT, and what further steps he needed to take in respect of the witnesses' evidence acting in his own self interest in the presentation of his case before the RRT: Refugee Tribunal ex parte Aala at [77], [128], [172], [205] - [209].
38 In order to obtain relief it is sufficient that the denial of natural justice deprived the applicant of the possibility of a successful outcome of his claim: Re Refugee Tribunal Ex parte Aala at [4], [17], [80] - [81], [104], [131], [211]. We agree with the view of the learned primary judge that the applicant was deprived of an opportunity to put his claim in a way which might have led to a different view being taken of his credibility, and therefore to a different outcome of his case before the RRT.”
It was submitted on behalf of the respondent that the present case is not analogous to the facts and circumstances in SGJB. It was submitted that having found that the articles were published it was unnecessary for the RRT, particularly having made its other findings concerning issues raised by the applicant and Mr N in the statutory declaration, to require Mr N to attend for oral examination. There was no misleading of the applicant and nothing in the conduct of the RRT hearing which would constitute a denial of procedural fairness of a kind that would constitute jurisdictional error. Even if the applicant had been misled in relation to the evidence of Mr N, then this would not result in a denial of natural justice. There can be no legitimate expectation that the RRT would take additional oral evidence from Mr N if it disbelieved any aspect of his evidence.
It was submitted that this may be contrasted with the situation in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 where an officer of the department had written to the applicant to advise that the department wished to contact his children's carers to assess his relationship with the children and the possible effects on them of a decision to cancel his visa. The subsequent failure to contact the children's carers in that case amounted to a failure to observe an expectation reasonably attributable to the applicant. As I understood the submissions of the respondent, it was submitted that in the present case that the sequence of events described earlier in this judgment are not analogous to the circumstances which arose in Lam's case.
Further, it was submitted on behalf of the respondent that in any event there is no evidence that the applicant was misled into thinking that he need not press the tribunal to further obtain oral evidence from Mr N. It was noted that in Muin v Refugee Review Tribunal (2002) 190 ALR 601 (Muin) it was an agreed fact that Mr Muin had been misled in believing that certain documents had been sent to and looked at by the tribunal and that as a result he refrained from putting material to the tribunal (per Gleeson CJ at 607 [16]). Further reference was made to the recent decision of the Full Court of the Federal Court in NABC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 317 (NABC) where there was evidence of the appellant son that was accepted by the primary judge that he had been misled by letters which he had received from the tribunal (per Allsop J at [31]).
In the alternative, it was submitted that even if the applicant was misled into thinking that he need not press the RRT further to take oral evidence from Mr N, this did not result, as indicated earlier, in a denial of natural justice to the applicant. If a failure to contact the childrens' carers in Lam did not amount to a denial of natural justice (see Gleeson CJ 511 [38] and McHugh and Gummow JJ at 528 [106]) it is even harder to see, according to the respondent, how the RRT's failure to advise the applicant that it did not propose to obtain oral evidence from Mr N could result in any denial of natural justice. Further, no practical injustice has been demonstrated, according to the respondent's submissions. Some reliance was placed upon the fact that s.426(3) of the Migration Act provides the tribunal is not required to take evidence orally or otherwise from an applicant's witness.
Further reference was made to the decision of McHugh and Gummow JJ in Lam's case where it was noted that it was not suggested that in reliance upon the department's letter the applicant had failed to put to the department any material he otherwise would have urged upon it (at page 528 [106]). It was submitted that similarly in the present case the applicant has not suggested that as a result of the RRT not advising that it was not calling Mr N to give oral evidence he failed to put to the RRT any additional evidence from Mr N that was not included in his statutory declaration.
It was further submitted by the respondent there can be no breach of the rules of natural justice simply because a decision-maker does not believe the evidence of a witness without giving that witness an opportunity to present oral evidence.
In relation to the issue of a psychological report, it was submitted that statements made by the applicant's adviser whereby she requested that if “the tribunal has concerns regarding the credibility of the applicant's claims of writing articles for Nour-e-Khozestan, then an opportunity to provide a psychological report be permitted” meant that having accepted that the articles were written the need for the psychological report had been obviated. This was submitted to be a reasonable response by the RRT and that the applicant could not be misled into thinking it was unnecessary in the circumstances to seek further time to obtain a psychological report.
The respondent submitted there is no breach of procedural fairness by the RRT.
As indicated earlier the Respondent was granted leave to file written submissions in relation to the new ground of appeal which raised an issue of non compliance with s.424A of the Act. In the supplementary written submissions the Respondent argued that there was no basis for the assertion that the RRT “intended or contemplated” disbelieving the oral evidence of the Applicant and the written evidence of his witness. In the alternative even if the RRT intended or contemplated disbelieving the oral evidence of the Applicant and the written evidence of his witness, it was argued that does not constitute “information” for the purposes of s.424A of the Act. It was submitted that “information” is knowledge concerning some particular fact, circumstance, subject or event that is communicated or received or acquired by a person (see Win v Minister for Immigration & Multicultural Affairs (2001) 105 FCR 212 at 217[18]). It was submitted that while the oral evidence of the Applicant and the written evidence of his witness may each be regarded as “information” within the meaning of s.424A of the Act being knowledge about matters communicated to the RRT, the RRT’s subsequent disbelief of that evidence and the reasons for that disbelief are not “information” within the meaning of the section. It was submitted the RRT’s “disbelief of the evidence” for the reasons which he gave could not be said to be “knowledge” and further it is not something that is “communicated to” or “received by’ or ‘acquired by’ the RRT member. Rather it was submitted it is the RRT member’s conclusion or view about that evidence and his process of reasoning for arriving at that conclusion.
Reference was made by the Respondent in the supplementary written submissions to the Full Court decision of the Federal Court in WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCAFC 266. Specific reference was made at paragraph 20 of that decision where it was observed that ‘information’ is used in the same sense in s.424(1) and 424A(1). The Respondent then referred to paragraph 26 of the Full Court decision in WAGP where it states:-
“26.In our opinion, the word "information" in s 424A(1) does not encompass a failure to mention a matter to the RRT. As the Full Court observed in Win at [20] "information" is used in the same sense in ss 424(1) and 424A(1). Sectopm 424(1) provides that the RRT "may get any information that it considers relevant". It is inappropriate to speak of the RRT "getting information" where the substance of that information is merely an observation that the appellant did not refer to a particular matter in his evidence. The fact that the appellant failed to refer to a particular matter constitutes nothing more than an aspect of the RRT's reasoning concerning a deficiency in his evidence. That observation cannot meaningfully be described as "information". Moreover, the appellant's submission cannot be accepted as a matter of sound policy. To permit an applicant for review of a delegate's decision to comment on each deficiency in his or her evidence, as viewed by the RRT, has the potential to allow a protracted and almost never ending process of review, a result plainly not intended by the legislature.”
It was submitted by the Respondent that in the present case the RRT did not have any obligation under s.424A(1) of the Act to give information to the Applicant before making its decision as to its reasoning process or its conclusions in relation to the evidence of the Applicant and his witness regarding the events following the publication of the newspaper article concerning the Abadan water crisis. The RRT’s reasoning process and conclusions regarding that evidence it was submitted were not “information’ within the meaning of s.424A(1). It was submitted that accordingly ground 2 of the amended notice of appeal is not made out.
Reasoning
Since Plaintiff S157 when considering the issue of jurisdictional error the Court is able to rely upon the broader version of jurisdictional error identified in the High Court decisions of Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In Yusuf McHugh, Gummow and Hayne JJ at paragraph 82 of their judgment cited with approval an extract from Craig v South Australia and stated the following:-
“82.It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)
"falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”
It is useful to note the following extract from the Full Court of the Federal Court in SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65, per Carr J (with whom Cooper and Finkelstein JJ agreed) as follows:-
“…There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79].”
I note a further recent decision of Hill J in NACP v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 499 (23 May 2003). In that case the following paragraphs are relevant: -
“31 The question not decided in Plaintiff S157/2002 (because it was unnecessary to decide, other than in respect of denial of procedural fairness) is what constitutes jurisdictional error in the sense used by the High Court in that case. Clearly failure to afford natural justice will constitute jurisdictional error for that is what the High Court actually decided in Plaintiff S157/2002. However, the question of what constitutes jurisdictional error as a ground for the grant of the constitutional writs of prohibition and mandamus (or the ancillary relief of certiorari) such as to bring about the result that the decision in question is a nullity, has been the subject of discussion in a number of cases.
…
33 Gaudron and Kirby JJ noted that the question whether there was a failure or constructive failure, to exercise jurisdiction required consideration of the nature of the obligation imposed upon the Tribunal (and in relation to a decision of the Minister which was also challenged, by the Minister). Their Honours stated the effect of Plaintiff S157/2002 to be as follows (par 72):
‘... [Section] 474 does not prevent the grant of prohibition, mandamus or certiorari in respect of decisions on the part of officers of the Commonwealth involving jurisdictional error for such decisions are not regarded, in law, as decisions at all and are, thus, not properly described as `a decision ... under [the] Act'. However and as also explained in Plaintiff S157/2002 v The Commonwealth of Australia, the effect of a provision such as s474 of the Act is to necessitate an examination of statutory limitations or requirements to ascertain whether, in the light of s474's restrictions on judicial review, non-observance of those limitations or requirements does or does not result in jurisdictional error.’
…
35 What matters for present purposes is not whether a failure to consider the relevant criteria would be jurisdictional error, but rather whether a failure to consider at all the case or a substantial part of the case advanced by an applicant would constitute jurisdictional error. Clearly the Tribunal has the same powers as the original decision maker within the context that the Tribunal was obliged to review the original decision and acting in the shoes of the decision maker to do again what the decision maker was required to do. The powers thus conferred upon the Tribunal likewise involve the consideration of the application against the criteria which the Act and the Regulations prescribed. It is, I think, quite clear that in the view of Gaudron and Kirby JJ, at least, the failure of the Tribunal to give consideration to the argument or case put forward by an applicant would constitute jurisdictional error and result in a decision which would not be a decision made under the Act and accordingly not be protected by s 474.”
The Full Court of the Federal Court in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v SBBK (2003) FCAFC 129 at paragraphs 27 and 28 relevantly states the following:-
“27 The statement that a particular error is a `jurisdictional error' is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff S157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker's lawful authority then the error is made `within jurisdiction'. If it does not fall within the decision maker's lawful authority then the error is a `jurisdictional error' and as such it cannot be a valid action or decision.
28 In relation to statutory jurisdiction, such as that of the Tribunal, a conclusion as to the full extent of the jurisdiction granted, that is whether the decision is or is not authorised, can properly be reached only by construction of the whole of the relevant statute, in this case the Migration Act. When the statute contains a privative clause there is an inevitable tension between the privative clause and those parts of the statute that confer jurisdiction. As Gleeson CJ commented in Plaintiff S157 at [17]:
`The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited.'
Resolving that tension involves the process of reconciliation referred to by the High Court in Plaintiff S157.”
In my view, the issue of the availability of Mr N was a central evidentiary issue relating to a key ground upon which the applicant had sought a protection visa. The offer by the applicant's representative to make Mr N available to give further evidence and by inference subject himself to questioning by the tribunal should have been accepted particularly when it was clear the tribunal was going to make significant findings rejecting the applicant and the corroboration provided in part by Mr N in his statutory declaration.
Applying the authorities to which I have been referred, I accept that the applicant would have had a reasonable expectation that either he or his adviser would have been notified of the need to adduce oral evidence from Mr N and that this was an essential and critical part of the applicant's claim. To deny an applicant the opportunity to adduce oral evidence when it is clear that evidence is both relevant and available constitutes a denial of procedural fairness when in the course of an exchange at the tribunal hearing and in written submissions it is made perfectly clear that the witness would be able to give oral evidence in the event that findings were to be made rejecting the substance of the evidence in writing. It is fundamental, in my view, that at the very least an applicant should be advised accordingly and given the opportunity to call that oral evidence.
It is sufficient, in my view, in the present case that I should find that the failure by the RRT to at least give the applicant the opportunity in the circumstances of adducing the further oral evidence constitutes a denial of procedural fairness of a kind which, in my view, is so fundamental that it clearly constitutes a jurisdictional error of a kind contemplated by the High Court in S157. There are similarities, in my view, between the facts of this case and the decision of the Full Court of the Federal Court in SGJB. I am satisfied that in the present case at the very least the applicant would have been misled and/or misunderstood. In the absence of a request to provide Mr N for oral evidence and in the circumstances of what had been asserted by Mr N in his statutory declaration it would be accepted by the RRT rather than significantly rejected. I do not accept that in the present case the failure to alert the applicant to the need to call Mr N is comparable to the failure to contact the children's cares in Lam's case, even though in both it may be regarded as a failure to observe an expectation reasonably attributable to the applicant.
In the present case I am satisfied that the failure in this case, perhaps unlike Lam's case, does amount to a denial of natural justice. This was a key and critical issue in support of the applicant's claim for a protection visa and he was denied the opportunity to put evidence in circumstances where it may be reasonably concluded that he was lulled into a false sense of security and misled into believing that the evidence of Mr N would not be required. It was only after the reasons for the RRT decision were provided that the applicant would have realised that both he and his adviser should have arranged for the attendance of Mr N both in terms of being able to elaborate upon the statutory declaration and also to be questioned by the tribunal and indeed have matters put to him by the tribunal which caused the tribunal concern and ultimately led it to reject the applicant and Mr N on critical issues identified earlier in this judgment.
For those reasons it follows that the application should be allowed and the matter be remitted to the RRT for re-determination.
Whilst I have made a finding in relation to the issue of the evidence of Mr N, I am not persuaded on the material before me that a similar conclusion could be drawn in relation to the failure by the RRT to provide an opportunity to the applicant to obtain and produce a psychological report. Regrettably the manner in which the psychological report was linked to the question of whether the articles were written at all did not make it as clear as in the case of the N evidence that the applicant desired to call that evidence in relation to broader issues. I do not conclude that that failure to afford the applicant an opportunity to adduce psychological evidence having regard to the chronology of events and the representations made by the applicant's adviser is similar to the issue of the evidence of Mr N.
In the circumstances it is unnecessary for me to consider in further detail the alternative ground which has been pursued, namely, a failure to comply with s.424A of the Migration Act. Having regard to the authorities referred to by the Respondent in the supplementary written submissions I am satisfied that in the circumstances of the present case the conduct of the RRT would not otherwise provide a basis upon which it could be claimed that there has been a breach of s.424A.
I accept that what has occurred is part of the reasoning process of the RRT rather than a failure to give to the Applicant particulars of information. That does not however detract from the principal finding in this matter that there has been jurisdictional error for the reasons set out above.
It follows therefore that the orders of the court should be:-
(1)The Court declares that the decision of the Refugee Review Tribunal made on 28 March 2003 is invalid and of no effect.
(2)The application be remitted to a differently constituted Refugee Review Tribunal to be determined according to law.
(3)The Respondent shall pay the Applicant’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules based upon Schedule 1 of the Federal Magistrates Court Rules.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 28 June 2004
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