WAJK v Minister for Immigration - [2004] FMCA 115

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAJK v MINISTER FOR IMMIGRATION

[2004] FMCA 115

MIGRATION – Application for review of decision of the Refugee Review Tribunal – fear of persecution – whether the Tribunal denied the applicant procedural fairness by not complying with section 424B of the Migration Act 1958 in failing to allow the lapse of the prescribed time period (or a reasonable time) to enable the applicant to respond to the Tribunal’s invitation for the applicant to comment on matters recorded in an interview between the applicant and a departmental officer upon the applicant’s arrival to Australia – excuse of discretion – whether the Tribunal denied the applicant procedural fairness in relation to letters between the applicant and the respondent – whether the Tribunal fell into jurisdictional error by not constructively exercising its jurisdiction to the grounds alleged by the applicant – jurisdictional error – matter remitted to the Tribunal.

Migration Act 1958 (Cth), ss.48A, 48A2(aa), 48A(ab), 424, 424A, 424B, 424B(2), 435A, 435A(2), 441A, 474
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), Regs 4.35
Federal Court Rules

Federal Magistrates Court Rules

Minister for Immigration & Multicultural & Indigenous Affairs v Awan (2003) 140
Plaintiff S157/2002 v Commonwealth of Australia [2002] HCA 2
NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 102
WADJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 99
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 77 ALJR 699
Stead v State Government Insurance Commission (1986) 161 CLR 141
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82
Applicant VCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 141
In VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
Bax v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 34
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

Applicant:

WAJK

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

WZ 47 of 2003

Delivered on:

17 June 2004

Delivered at:

Melbourne (via video link to Perth and Sydney)

Hearing date:

16 January 2004

(additional written submissions of the respondent received 16 April 2004)

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Mr Killalaea

Solicitors for the Applicant:

Rob Makin & Associates

Counsel for the Respondent:

Mr Allanson

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Court declares that the decision of the Refugee Review Tribunal made on 6 January 2003 is invalid and of no effect.
The application is remitted back to a differently constituted Refugee Review Tribunal for consideration and determination according to law.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE (via video link to Perth and Sydney)

WZ47 of 2003

WAJK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

The application in these proceedings is brought by the applicant wife who makes claims in her own right for a protection visa. The application includes her husband and children and no specific claims are made by those applicants.
The applicants are Palestinians with former residence in Syria who arrived in Australia on 23 August 2000. On 8 March 2001 the applicant husband, wife and children lodged an application for protection visas with the then Department of Immigration and Multicultural Affairs. On 28 March 2001 a delegate for the Minister for Immigration and Multicultural Affairs (the Minister) refused to grant protection visas and the applicants applied for a review of that decision.
The decision of the Refugee Review Tribunal (the Tribunal) affirmed the delegate's decision on 13 December 2001. An application to the Federal Magistrates Court was dismissed on 28 June 2002. That decision was the subject of an appeal to the Federal Court which resulted in a decision dismissing the appeal on the 24 January 2003.
On 23 October 2002 the applicant wife made this claim in her own right for a protection visa. The application included her husband and children. As a consequence of the amendments to s.48A of the Migration Act 1958 (Cth) (the Act) which took effect on 1 October 2001, and prior to the date of lodgment of the second application for a protection visa, the applicant husband is precluded from making a second application as a member of the family unit. In accordance with the provisions of s.48A his second application constitutes a "further application for a protection visa".
However the applicant wife and children are not precluded from making a second application based on family membership as their first application does not come within either subsection 2(aa) or (ab) of the amended s.48A provisions. The applicant wife and children did not in their first application apply as refugees in their own right.
Accordingly the Tribunal considered the claims of the applicant and children and not of the applicant husband and that part of the decision is not under review.

Background

The applicant is a former resident of Syria and is a stateless Palestinian. She was born in Damascus and resided there until leaving Syria in 2000. She is 37 years of age and married with three children. She arrived in Australia illegally in 2000.
In her application the applicant said:
a)that she had not previously put forward her own claims because of a warning by the smugglers that Australia would not welcome communist views;
b)she was part of a politically motivated family; her brother had been arrested and died as a result of torture in prison, two of her uncles had been imprisoned for over 20 years, her father had been arrested in Syria and detained for five years;
c)she had herself been involved in an opposition political party, the political office of the Communist Party (CTTB), although her involvement had been limited to distributing pamphlets;
d)she had been arrested three times in 1984 and 1985 and again in 1999 and she had been tortured, resulting in a miscarriage of her pregnancy; and
e)in 2000 her cousin had been arrested, and fearing that she would again be arrested the applicant fled Syria in May 2000.
The applicant said that she feared she would be arrested and not released, tortured and mistreated if she returned to Syria.

The Tribunal's decision

In essence, the Tribunal found:
a)The applicant's evidence of her involvement in the CTTB was vague and unconvincing. It particularly noted her lack of knowledge of the content of any of the literature she said she had distributed[1]; her inability to detail any specific policies of the party[2]; her lack of knowledge that the leader of the party had been released from imprisonment[3].
b)The applicant now claims a lengthy history of political involvement, not just by herself but by her family, including that she had been imprisoned. The Tribunal noted that in her initial interview on entering Australia she had denied any association with an anti-government group, any time in prison and any outstanding charges against her and said that her sole reason for leaving Syria was due to problems faced by her husband.
c)The applicant explained the submission by saying that she had been scared, had been relying on her husband's claim and had been told by the people smuggler in Indonesia not to mention any political associations because Australian authorities would react badly and did not like communists. The Tribunal noted that the applicant's claim to be scared and not willing to mention political activity was, however at odds with her husband's claim being based on his expression of anti-Syrian political opinions.
d)The applicant delayed nearly two years in making claims in her own right.
[1] See Court Book, page 153.
[2] Ibid.
[3] Ibid.
The Tribunal expressed its conclusion to be a result of weighing the evidence, including the delay and her initial statement that neither she nor her family had any political involvement, together with the generally unconvincing evidence of her political involvement[4].
[4] See Court Book, pages 154-5.
The Tribunal further considered whether the applicant would be at risk on return to Syria for having applied for asylum in Australia. It found on the country information that she would not.

The applicant's grounds

There are three grounds relied upon by the applicant which are as follows:
e)that the Tribunal denied the applicant procedural fairness in that it failed to comply with s.424B of the Act. In particular, it failed to allow the lapse of the prescribed period in which the applicant might respond to the Tribunal's invitation for the applicant to comment on matters recorded in interview between the applicant and a departmental officer on the applicant's arrival in Australia, and in particular her disavowal of any claims of political persecution to the departmental officer and in her present application;
f)that the Tribunal denied the applicant procedural fairness in that:
i)it stated it would take into account a letter written by the applicant to the respondent but did not take that letter into account in respect of the applicant's reason for delay in making her claims; and
ii)the Tribunal did not take into account the stated basis of the husband's claim;
c)the third ground is that the Tribunal erred in failing or constructively failing to exercise its jurisdiction as a result of the above matters.

Relevant legislation

Section 424A provides as follows:
(1)Subject to subsection (3), the Tribunal must:
a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and
b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant for the review; and
c)invite the applicant to comment on it.
(2)The information and invitation must be given to the applicant:
a)except where paragraph (b) applies - by one of the methods specified in section 441A; or
b)if the applicant is in immigration detention - by a method prescribed for the purpose of giving documents to such person
(3)This section does not apply to information …
Section 424 provides as follows:
(1)where a person is:
a)invited under section 424 to give additional information; or
b)invited under section 424A to comment on information; the invitation is to specify the way in which the additional information or the comments made or given, being the way the Tribunal considers if appropriate in the circumstances.
(2)If the invitation to give additional information or comments otherwise than at interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period, or if no period is prescribed, a reasonable period.
(3)If the invitation is to give information or comments at an interview the interview is to take place:
a)at the place specified in the invitation;
b)at a time specified in the invitation being a time within a prescribed period, or if no period is prescribed, a reasonable period.

The applicant’s arguments

The Tribunal found that the applicant fabricated her claims of risk of political persecution. In particular, the Tribunal said at Court Book, page 154:
Apart from the applicant's unconvincing evidence about her association with the CTTB and the absence of a satisfactory explanation for the significant delay in outlining any of her own claims, there are other aspects of her evidence that cast doubt on her credibility.
At Court Book, page 153 the Tribunal says:
Although the applicant now claims a lengthy history of political involvement by her family, and personally, the Tribunal notes that in her initial interview in Australia she stated the converse. During that interview, when the applicant was assisted by an interpreter in the Arabic language, she stated that she had no association with an anti-government nor "any association with any political group or organisation" … The applicant claims that she did not outline her own problems at the outset because she was not asked about them and she was relying on her husband's claim succeeding. She added that she was initially too scared to outline her own claims because the people smuggler in Indonesia had advised her not to mention any political associations because the Australian authority was said to react badly to such claims and did not like communists.
However on 5 August 2002 and prior to her husband's Full Court appeal being decided, the applicant wrote to the respondent stating that she did have claims of political persecution of her own. She set out in the letter the reasons for her earlier disavowal of having any claim of political persecution. The reasons given in the letter were that:
a)the people smuggler told her that in Australia they did not like or welcome any political person or one who holds political views and that she should not express political views. She understood from her own knowledge or she believed from her own knowledge that western countries do not desire communist ideology and did not therefore put forward her claims;
b)after her arrival in Australia she met and conversed with some refugees at the detention centre who reinforced her fears that Australia did not like political cases; and
c)at the hearing before the Tribunal it was pointed out to the applicant that when a claim for refugee status was made by her husband she made no mention at all of any difficulties that she had had or that the family had had or that she had been a member of the Communist Party. She responded:
I was scared and I was a witness with my husband and my husband's case was different to my case[5].
[5] See Transcript, page 14, point 3.
The Tribunal responded:
I understand your husband has made different claims but what I'm puzzled by is when you had several opportunities to make claims about your own difficulties why you made no mention of them at all[6].
[6] See Transcript, page 14, point 6.
The applicant responded:
I was so scared that's why - I was scared to declare and disclose all this information before but then I sent a letter to the Minister and I explained everything. He gave me an opportunity to explain everything to him[7].
[7] See Transcript, page 14, point 10.
The Tribunal further said to the applicant:
One of the factors I need to consider in that context is why you delayed making any claims for so long and having initially said that you had no political involvement at all[8].
[8] See Transcript, page 16, point 34.
The applicant then said at Transcript, page 17, point 24:
But I have written to the Minister and I explained everything to him.
The Tribunal responded:
I understand that you've ultimately done that and they're matters I need to consider as well. What I need to do is consider all of the information on the files and the evidence you've given today and then write a decision and the reasons for that decision[9].
[9] See Transcript, page 17, point 26.
The Tribunal found that the applicant had fabricated claims of political involvement. In doing so it considered the significant delay by the applicant in making any of her claims and her initial statements that neither she nor other family members had any political involvement in Syria[10]. In coming to this result it is clear that the Tribunal rejected the applicant's explanation. The basis upon which it did so is at Court Book 153:
The applicant claims that she did not outline her own problems at the outset because she was not asked about them and that she was relying on her husband's claim succeeding. She added that she was initially too scared to outline her own claims as the people smuggler in Indonesia had advised her not to mention any political associations because Australian authorities were said to react badly to such claims and do not like communists.
[10] See Court Book, page 155.
The Tribunal noted that the applicant was asked about her claims in the initial interview and opined that:
Despite her claim that she acted on the advice of a people smuggler to avoid mention of political activity her husband's claims are essentially that he encountered problems due to his expression of political opinions that were antagonistic to the Syrian President. It is implausible that the applicant's husband would outline claims based on political opinion, on which the applicant relied, if the applicant really believed it was pointless to make claims based on politics.
In relation to the delay the Tribunal also opined Court Book, page 154:
The application for a protection visa, when based on the applicant's husband's claims, was rejected by the Department and the Tribunal (differently constituted); and an appeal to the Federal Magistrates Court was dismissed. It is only after an appeal to the Full Federal Court appears to have been discontinued that the applicant, about a week later, first made her own claims.
The applicant contends that the Tribunal has ignored the applicant's evidence about meeting with refugees at the detention centre and being told that political cases were undesirable. The applicant also contends that the reference by the Tribunal to the application being made after the "discontinuance" of the Full Federal Court appeal as relevant to the delay and demonstrably wrong. The applicant thus contends that either the Tribunal did not have the applicant's letter to the Minister before it, or did not take the contents of the letter into account in making its decision.

Ground One

The applicant contends that the Tribunal denied the applicant procedural fairness in that it failed to comply with s.424B of the Act in failing to allow the lapse of the prescribed period, or in any case a reasonable period, in which the applicant might respond to the Tribunal's invitation for the applicant to comment on matters recorded in an interview between the applicant and a departmental officer on the applicant's arrival in Australia.
The applicant accepts that in the hearing it was pointed out to the applicant that she had told the departmental officer that she had no political persecution claims of her own and yet in 2002 she made claims, and that at the hearing, the Tribunal gave the applicant an opportunity to comment.
It is contended however that in breach of s.424B an invitation under s.424A to comment on information, was not properly accorded in that there was no invitation to specify the way in which the additional information or comments could be given.
Section 424B(2) provides that if the invitation is to give additional information other than at an interview then the time must be specified (being a prescribed period) or be a reasonable period.
Regulation 4.35 sets out the prescribed methods of invitation and deals with an invitation to comment other than at an interview and, as the applicant is a detainee she falls within subsection (2) which provides for a prescribed period of seven days in which to respond.
Section 435A deals with an invitation to comment or give additional information at an interview. Subsection (2) deals with the position of a detainee in which case the prescribed period is 14 days. Thus, depending upon whether or not the Tribunal intended that the applicant should respond at interview or otherwise the relevant period was either seven or fourteen days. The applicant contends that in fact she was not given the opportunity to consider her response within the timeframe allowed. Rather, the issue as to what the applicant had said in her initial interview and her contrary position in respect of her application before the Tribunal, was first raised in the hearing and her comments were sought immediately on raising that issue.

I reject the contentions of the respondent, set out in written submissions but not pressed at the hearing, that the reasons for the delay and the inconsistency of the applicant's present evidence and her original evidence were not matters on which the Tribunal relied as the reason or part of the reason for affirming the decision under review. It is clear in my view from the passages cited that it was central to the decision making process (see Minister for Immigration & Multicultural & Indigenous Affairs v Awan (2003) 140 per Gray ACJ at [13]). In particular the words:
in weighing all the evidence, particularly the significant delay by the applicant in making any of her claims, her initial statements that neither she nor other family members had any political involvement in Syria… the Tribunal finds that she has - - -
make it clear that the Tribunal relied on this matter in forming the basis for rejection of her claims of political persecution.
The respondent contends that breach of natural justice affecting the decision, in the sense that it deprived an applicant for review by the Tribunal of the opportunity of success, may amount to jurisdictional error, and that jurisdictional error may also be established where there has been a failure to discharge "imperative duties" or to observe "inviolable limitations or restraints" arising under the Act. (See Plaintiff S157/2002 v Commonwealth of Australia [2002] HCA 2 at [76-78].
However the respondent further contends that despite the finding of the Full Court of the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Awan (supra) to the effect that the obligations in s.424A(1) may impose an obligation on the Tribunal or a limitation or restraint on its powers, compliance with which is essential to the validity of a decision, the provisions of s.424A(2) as to the manner of delivery of relevant information, may not be such a limitation or restraint, so that in the absence of unfairness, failure to comply does not have the consequences of invalidity. See Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 102 at [23].
Thus the respondent submits that s.424B and the prescribed periods, do not impose limitations or restraints on the exercise of the Tribunal's power of such a nature that absent procedural or substantive unfairness, a failure to comply with that section and regulations 4.35 and 4.35A results in invalidity.
The applicant accepts that mere breach of s.424B does not of itself constitute jurisdictional error but contends that once there is a breach it is for the Minister to satisfy the Court that no unfairness arises.

Reasons

It must be accepted that the Tribunal's decision rested upon the rejection by the Tribunal of the applicant's account of persecution. The rejection of her evidence clearly rests on several premises. First, is that her evidence regarding her involvement with the CTTB was vague and unconvincing. Crucial to the decision about her credibility was the view formed by the Tribunal that it was implausible that her husband would outline claims based on political opinion on which she relied, if she really believed it was pointless to make any claims based on politics. Secondly, the Tribunal in coming to its conclusion referred to her explanation that she had been too scared to outline her own claims as the people smuggler in Indonesia had advised her not to mention any political associations in Australia. Thirdly, the Tribunal was influenced by its belief that it was only after her husband's appeal to the Full Federal Court had been "discontinued" that she made her own claims. The applicant contends that the information before the Tribunal and the reasons for rejection of her claims are critical. It is contended that when the Tribunal found at Court Book, page 154:
It is implausible that the applicant's husband would outline claims based on political opinion, on which the applicant relied, if the applicant really believed it was pointless to make any claims based on politics.
These findings wrongly identified the applicant husband's claims as being made on the basis of persecution for political reasons when they were made (even if wrongly identifying the ground of persecution) on the basis of persecution for religious reasons. It is thus contended that the Tribunal failed to take into account the basis of the applicant's husband's claims as presented by him, and failed to give the applicant a real opportunity (as contemplated by s.424B) to consider her response to the Tribunal which response might have been to identify the perceived basis of the husband's claim, and so possibly explain why the applicant did not put forward her own claims of political persecution.
The applicant contends that her husband's claims were not mistakenly identified as political by the Tribunal, but the nature of his claims relate to religious persecution.
In her husband's appeal to the Federal Court (WADJ v Minister for Immigration & Multicultural& Indigenous Affairs (2003) FCA 99 at [9]). Nicholson J described the formulation of the application to the Federal Magistrates Court as follows:
I accept the formulation in the submissions for the respondent of the circumstances in which the application was made to the Federal Magistrates Court and the manner in which that Court formulated its reasons. Those submissions read as follows and I see no reason to recast them:
"4. The application for review in the Federal Magistrates Court was on the stated ground:
"I am of Palestinian origin who was residing in Syria. I am Muslim Sunni. I was persecuted in Syria because I was from the Sunni religion."
The detail provided by the husband was in his application for a protection visa was fear of persecution in Syria because of political opinions which he said would be imputed to him because while attending prayers as a mosque in mid-June 2000 he participated in critical discussions about the then current political regime in Syria and because he failed to act as an informer for the Syrian intelligence organisation after he had undertaken to do so. The Tribunal rejected his claims and he was also unsuccessful before the Federal Magistrates Court and ultimately before the Federal Court of Australia.
It is clear however that the claim of the husband was persecution because of religion, albeit in a political context. Although the Federal Magistrates Court identified the basis of the claim of being persecution by reason of political opinion (albeit arising in a religious context) it could reasonably be argued that the applicant husband considered his claims to be based on persecution by reason of his religion. Certainly that is how he appears to have formulated it. Considered in that way, the applicant's claims that she did not "outline her own problems at the outset because she was not asked about them and she was relying on her husband's claims succeeding[11] does not necessarily lead to the conclusion that the Tribunal reached when it said at Court Book, page 154:
it is implausible that the applicant's husband would outline claims based on political opinion, on which the applicant relied, if the applicant really believed it was pointless to make any claims based on politics.
[11] See Court Book, page 153.
If the applicant considered her husband's claims were made on the basis of persecution for a religious reason, then her explanation may not be implausible as the Tribunal opines.
The application to the Federal Magistrates Court for review of the Tribunal's decision by the applicant husband was dismissed on 20 June 2002 and the husband appealed to the Full Court from that judgment. The applicant was detained on 24 February 2003. However on

5 August 2002 and prior to the Full Court appeal being detained, the applicant wrote to the respondent setting out her own claims. The Tribunal is thus in error when it stated at Court Book, page 154:
It is only after an appeal to the Full Federal Court appears to have been discontinued that the applicant about a week later, first made her own claims.
This was a matter which it appears was clearly in the mind of the Tribunal when it referred to
The absence of satisfactory explanation for her significant delay in outlining any of her own claims.
Whilst the chronology shows that there was a significant delay, the Tribunal appears to have been affected by the belief that the applicant's own claims were made after the “discontinuance” of the appeal to the Full Federal Court.
The respondent contends that the comment by the Tribunal as to when the applicant made her own claims is factually correct, and there is no jurisdictional error in not qualifying that statement by referring to a letter written earlier. However the fact that the Tribunal referred to it as being made after the “discontinuance” of the Federal Court appeal by the husband cannot be discounted as having no relevance to the Tribunal's decision. I agree with the respondent that it cannot be assumed that because there is no express reference to the letter in the decision that it was not considered by the Tribunal. The Tribunal did say that it would have regard to material on the Tribunal and departmental files including that referred to in the delegate's decision and the letter is part of the file. The respondent contends that it cannot be argued that the letter was not considered by the Tribunal and that if the Tribunal were factually incorrect about the "Discontinuance” of the appeal and the timing of the applicant's application:
a)it does not show a failure to have regard to the letter; and
b)does not alter the substantive point that she did not make claims until August or October 2002.
However there are two matters other than the letter which were not referred to by the Tribunal. The first is the reference to the applicant's claims that she was warned against making political claims by other detainees and the reference by the Tribunal to the applicant only making her own claim after the discontinuance of the husband's appeal to the Full Court.
The Tribunal's question to the applicant as to why she would travel to Australia if she believed that she could not make a claim based on political views is somewhat incongruous because her case was it does not follow that she knew this when she left Syria, rather the evidence suggests that was something she learned from the people smuggler after her departure which was reinforced by other detainees.
Furthermore, the Tribunal failed to have regard to the information in the letter in which the applicant claimed to have been told by other detainees that she should be wary about claiming persecution based on political matters in the context of a rejection by the Tribunal of one part of her explanation which was that the people smuggler had told her not to make a claim on the basis of political views. The applicant further contended that her position regarding denial of an opportunity to respond to the Tribunal was further exacerbated by her distressed demeanour at the hearing (as manifest on the tape recording). I do not think that submission takes the matter any further for the applicant and no oral submissions were directed to that point.
The respondent contends that the effect of s.474 is to require the examination of limitations and restraints found in the Act to ascertain whether the failure to observe some procedural or other requirement constitutes an error which has resulted in failure to exercise jurisdiction in the decision making and the decision maker exceeding its jurisdiction. It is contended by the respondent that the applicant is not able to satisfy the Court that there is any unfairness in the present case requires or makes or imposes a limitation or restraint on the exercise of the Tribunal's power by failing to comply with s.424B in the prescribed periods.
There was however error by the Tribunal in its description of the timing of the applicant's claim being after the discontinuance of the applicant husband's appeal. Further, the Tribunal accepted the characterisation of the applicant's husband's own claims as being political without reference to the way in which he characterised, (and consequently the applicant may have), the claims as religious. This may also be characterised as a failure to have regard to relevant matters in the letter.
It is for the applicant to identify how she might have been misled by any comment of the Tribunal or that there was unfairness arising from the decision which could have been cured by the Tribunal’s compliance with the Act and regulations in allowing her an opportunity to respond to information on which it intended to rely (see Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 77 ALJR 699 at [36] - [38]). The unfairness to the applicant in not allowing her the opportunity to provide a considered response to the Tribunal's concerns prevented her from setting out clearly and cogently the reasons for her claims being made when they were, and the reason that she was putting her claims forward as being different to those of her husband.
Section 424A is now the sole indicator of an applicant's right to procedural fairness in respect of proceedings before the Tribunal. The requirements of that section have therefore become more important. It is not a case in my view which the respondent can show that no other outcome was possible as in Stead v State Government Insurance Commission (1986) 161 CLR 141. In VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [45] where the Full Court said:
We acknowledge that (i) it is only where an affirmative conclusion is reached that compliance with s424A(1) “could make no difference to the result already reached”: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; that relief will be withheld: Bax v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 34 at [18]; and (ii) it will be a rare case in which a court will be convinced to adopt such a course: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [13].
I agree with the respondent that the applicant has not shown any unfairness arising from the comments of the Tribunal which led the applicant to believe her letter would be taken into account, even if the letter was not taken into account. But the fact that the applicant was entitled to believe that the matters in the letter, particularly the explanation of the advice she was given by other detainees and the date of her claims were being taken into account, made it all the more unfair not to give her an opportunity to address the issues raised by the Tribunal as contemplated in s.424B.
There is a further question of whether the Court should exercise its discretion to refuse relief even if it found that the question was affected by an error of law (Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at [89] and ApplicantVCAT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 141. In VCAT the Court held that a relevant matter in the exercise of discretion was the fact the applicant had a chance to respond to the information on which the Tribunal intended to rely, although not in the way prescribed by s.424A(1).
I am satisfied the applicant has in this case met the necessary test of indicating that she will suffer disadvantage by the jurisdictional error identified. I am not satisfied that in this situation it can be said that this situation would not have changed if she had been given the notice to which she was entitled and if she had been given the time to which she was entitled under the section in which to reply. The applicant was unrepresented, required an interpreter and was under pressure of questioning at a hearing. Alleged inconsistencies which were relevant to the Tribunal's decision were being put to her and she was denied the opportunity of a response mandated by the regulations. I am satisfied that the opportunity to respond was attenuated by procedural unfairness which when coupled with failure to comply with the statutory requirements of s.424B amounts to jurisdictional error. As the Full Court of the Federal Court said in NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 102 at paragraph 23:
The relevant inquiry here is whether Parliament intended that breach of the condition as to the manner of delivery of the relevant substantive information which would necessarily spell the invalidity of the Tribunal's decision, even in circumstances where there has been satisfaction of the important substantive requirement of subs 424A(1) to give the appellant the information there contemplated, and implicitly an opportunity to deal with it. The "mandatory" language (the word "must" is used in subs 424A(2)) is relevant to but not decisive of this inquiry. In our view it cannot be concluded that invalidity of the Tribunal's decision is a necessary consequence of any failure to comply with subs 424A(2) irrespective of the absence of any unfairness, whether of a substantive or procedural kind. Thus we do not think that the failure to convey the relevant information by the correct method or vehicle can be seen as jurisdictional.
The applicant argued as a separate ground that the Tribunal failed to take into account the letter of 5 August and the matters contained in it. However the argument of the applicant did not establish that the Tribunal did not take the matters in the letter into account and its failure to do so would not amount to jurisdictional error unless the applicant can identify something more or that she might have been misled by any comments of the Tribunal.
The failure in this case, to constructively exercise jurisdiction arises from the failure to accord her the apparent time contemplated by s.424B to address the apparently contradictory matters raised by reference to her arrival interview and amounts to jurisdictional error. Thus I would declare pursuant to s.39B of the Judiciary Act (Cth) 1903 that the decision of the Tribunal is void and of no effect and I will order that the matter be referred to the Tribunal differently constituted to be decided in accordance with law.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 17 June 2004