WZAUP v Minister for Immigration
[2019] FCCA 2310
•27 August 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAUP v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2310 |
| Catchwords: MIGRATION – Judicial review – decision of former Refugee Review Tribunal – where recording equipment malfunction – no transcript of Tribunal hearing – whether denial of procedural fairness or natural justice – whether jurisdictional error. |
| Legislation: Administrative Appeals Act 1975 (Cth), s.60(1) |
| AZADQ v Minister for Immigration & Border Protection [2014] FCCA 2623 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 |
| Applicant: | WZAUP |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 242 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 23 March 2015 |
| Date of Last Submission: | 23 March 2015 |
| Delivered at: | Perth |
| Delivered on: | 27 August 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr PD Lochore |
| Solicitors for the Applicant: | CASE for Refugees |
| Counsel for the Respondents: | Mr B Dube |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
That the name of the second respondent be amended to “Administrative Appeals Tribunal”.
That the application filed 13 August 2014, as amended by the amended application filed 4 December 2014, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 242 of 2014
| WZAUP |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant relies upon an amended application for judicial review (“Amended Application”) of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the then Minister for Immigration & Border Protection, now the Minister for Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (“Minister”) to not grant the applicant a Protection (Class XA) visa (“Protection Visa”). The Tribunal’s Decision is in the Court Book (“CB”) 386-396.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including the Amended Application and affidavits filed in support thereof, outlines of submissions from the parties and the transcript and Exhibit 1 from the hearings (“Transcript”), and the CB which includes the Tribunal Decision at CB 386-396.
It is also relevant to note that there was no oral witness evidence or examination at the hearing of the matter before this Court.
In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment.
Background
The background to the matter is as follows:
a)the applicant was born on 31 March 1983 in Egypt: CB 12;
b)he lodged an application for the Protection Visa on 7 February 2014:CB 1-26;
c)by letter dated 7 February 2014 the applicant’s Protection Visa application was acknowledged and he was requested to provide further information in respect of his claims: CB 49-56;
d)by further letter dated 7 February 2014 the applicant was invited to attend an interview with the Delegate on 26 February 2014: CB 58-61, and the applicant attended that interview on 26 February 2014: CB 78;
e)on 3 April 2014 the Delegate’s Decision was to refuse the applicant’s application for the Protection Visa: CB 69-89;
f)on 14 April 2014 the applicant lodged an application for review of the Delegate’s Decision with the Tribunal: CB 90-101;
g)by letter dated 2 May 2014 the applicant was invited to provide a written submission to the Tribunal on or before 22 May 2014: CB 108-109;
h)a letter inviting the applicant to attend a Tribunal hearing scheduled for 29 May 2014 was also sent to the applicant on 2 May 2014: CB 110-111;
i)on 21 May 2014 the applicant filed a response to the Tribunal hearing invitation containing written submissions and associated documents comprising 211 pages: CB 113-326;
j)on 29 May 2014 the applicant attended the Tribunal hearing in person with a support person and the assistance of an Arabic interpreter: CB 328- 331;
k)following the Tribunal hearing, on 6 June 2014 the applicant provided the Tribunal with further material comprising 44 pages, including an affidavit of his brother dated 1 June 2014 (“Brother’s Affidavit”): CB 333-379; and
l)a copy of the Tribunal Decision was sent to the applicant on 31 July 2014: CB 381-385.
Tribunal Decision
In the Tribunal Decision the Tribunal found that:
a)the applicant was a founding member of The Reform and Development Party (“RDP”): CB 389-390 at [17];
b)it was not satisfied that the applicant held a political opinion or would be imputed with such an opinion which may attract the adverse interest of the authorities upon his return to Egypt: CB 390 at [18];
c)it was not satisfied that the applicant faced a real chance of harm in Egypt for reasons of his political opinion or activities, including membership of the RDP and participation in the January 2011 demonstrations in connection with the Egyptian Revolution: CB 390 at [19];
d)it was not satisfied that it had substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Egypt, there was a real risk that he will suffer significant harm arising from his political opinion or activities, including his membership of the RDP and participation in the January 2011 demonstrations in connection with the Egyptian Revolution: CB 390 at [20];
e)that the applicant and his friends founded a charitable organisation called Make Your Village. The applicant’s involvement with Make Your Village or his association with Resala was not of any concern to the Egyptian authorities: CB 390-391at [21];
f)it was not satisfied that the applicant faced a real chance of harm in Egypt by reason of his involvement with Make Your Village and association with Resala. The Tribunal was not satisfied that it had substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Egypt, there was a real risk that he would suffer significant harm arising from his involvement with Make Your Village and his association with Resala: CB 391 at [22];
g)it did not accept that the applicant had a meaningful connection with the International Republican Institute (“IRI”) or the National Democratic Institute (“NDI”) and did not accept that he had a “high level association” with either the IRI or NDI and thus did not accept that his involvement in either the IRI or NDI brought him to the attention of the Egyptian authorities: CB 391 at [24];
h)it did not accept that the authorities in Egypt had or have any interest in the applicant on the basis of his very limited past association with the IRI or NDI: CB 391-392 at [25];
i)it was “highly implausible” that:
i)if the authorities were interested in the applicant on suspicion of spying and were already investigating him, they had taken no action against him because he was lucky or because files had been lost or destroyed during the period he was in Egypt; and
ii)while the applicant's friend who had worked in the regional investigations unit of the internal security was aware, and had conveyed to the applicant, that he was being investigated, was due to be detained for questioning and would not be allowed to travel out of Egypt, no other employee of the internal security had taken any action against the applicant, who had continued to reside at a single address until February 2013, because files were stolen, destroyed or burnt or had not yet been “reconstructed”,
and in this regard the applicant's claims were considered to be “inventions designed to strengthen his claims for a protection visa”: CB 392-393 at [28];
j)if the applicant was of any interest to the Egyptian authorities because of his meeting with the Israeli Ambassador he would have at least been questioned while still in Egypt: CB 393 at [30]. The Tribunal also did not accept that as a consequence of attending the low-key meeting with the Israeli Ambassador that he was accused of spying for Israel or collaborating with foreign powers and was of any interest to the Egyptian authorities: CB 393 at [30].
k)for those reasons, it did not accept that the Egyptian interior security forces searched the house where the applicant's brother resided and confiscated the applicant’s computer, laptop and documents and enquired as to his whereabouts: CB 393 at [31]. In finding that the applicant's claims in this regard lacked credibility the Tribunal found that it was not prepared to attach any significant weight to the Brother’s Affidavit: CB 394 at [34];
l)the significant delay in lodging his application for a Protection Visa cast serious doubt on the genuineness of his fear of persecution and the credibility of his evidence: CB 394 at [33];
m)it was not satisfied that the applicant has a real chance of facing serious harm for the reason of his tenuous links with the NDI or IRI or his meeting with the Israeli Ambassador in June 2011 if he were to return to Egypt: CB 394 at [35];
n)it was not satisfied that it had substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Egypt, there is a real risk that he will suffer significant harm arising from his links with the NDI or the IRI or his meeting with the Israeli Ambassador in June 2011: CB 394 at [36];
o)it was highly unlikely, and the Tribunal was not satisfied, that the applicant's service as a reservist for a period of two weeks in December 2010 would have led the Egyptian authorities to form the view that the applicant was in possession of military secrets that he could share with Israel or that the Israeli Ambassador was trying to seek sensitive information from him: CB 394 at [37];
p)it was not satisfied that the applicant's Army recall order was a trap or that he would face punishment or harm for his inability to report for reservist duties due to his absence from the country: CB 395 at [38];
q)it was not satisfied that if he were to return to Egypt there was a real chance or real risk that he would face serious or significant harm for not being able to report for reserve duty due to his absence from the country. It was also not satisfied that the applicant's failure to report for reserve duty would be linked to his July 2011 meeting, attracting accusations of spying or collaboration. The Tribunal was not satisfied that there was a real chance or a real risk that the applicant would face serious or significant harm arising from these claims in Egypt: CB 395 at [40];
r)there was no real chance that the applicant would face serious harm for a Convention reason for having applied for protection in Australia: CB 395 at [43], and that there was no real risk that the applicant would face significant harm arising out of his asylum application or the publication of aspects of his personal information: CB 395 at [44];
s)it was not satisfied that the general security situation in Egypt would expose the applicant to a real chance of persecution for a Convention reason in that country;
t)concerning complementary protection, did not accept that there was a real risk that the applicant would suffer significant harm and it was satisfied that the claimed risk was one faced by the population generally, and that there is not a real risk that the applicant will suffer significant harm in Egypt as a result of a general lack of security or instability: CB 396 at [47]; and
u)affirmed the Delegate’s Decision: CB 396 at [51].
Grounds of the Amended Application
At hearing grounds 1 and 2 of the Amended Application were abandoned: Transcript, p.3. The remaining ground, ground 3 is as follows:
The Tribunal made a jurisdictional error by failing to make an audio recording of the Tribunal hearing conducted on 29 May 2014.
Particulars
(i)The applicant appeared before the Tribunal on 29 May 2014 to give evidence and present arguments ([9]);
(ii)Following the hearing, the Tribunal became aware that malfunctioning recording equipment in the hearing room had resulted in the hearing not being recorded properly ([9]);
(iii)It is a requirement that all Tribunal hearings are to be audio recorded (see Principal Member Direction 04, “Efficient Conduct of RRT Reviews”).
Consideration
Jurisdictional error required
The Tribunal Decision may be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal may constitute jurisdictional error if the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material, in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given to the Tribunal under the Migration Act 1958 (Cth) (“Migration Act”): Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
In certain circumstances a denial of procedural fairness may constitute jurisdictional error in the Tribunal Decision: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”); Migration Act, s.422B.
It is for the applicant to make his case and he bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 (“VAAD”) at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 at [15] per Jagot J.
Submissions
Applicant’s submissions
The applicant’s submissions are as follows:
a)the applicant appeared before the Tribunal on 29 May 2014 in person by video-link and presented evidence, made arguments and heard the views of the Tribunal through the aid of an interpreter;
b)the Tribunal became aware of the malfunctioning of the recording equipment in the Tribunal hearing room at the conclusion of the Tribunal hearing, and the Tribunal therefore “relied upon its written notes of the applicant’s evidence at the hearing”: CB 388 at [9];
c)further written submissions and materials were filed on 6 June 2014: CB 333-334 and 1 July 2014: CB 376;
d)the Tribunal Decision was finalised on 31 July 2014: CB 386;
e)the Tribunal therefore finalised the Tribunal Decision, presumably primarily based on written notes of the Tribunal hearing, around two months after the Tribunal hearing;
f)the Tribunal evidently recognises the importance of audio recording its proceedings, as the Tribunal’s Principal Member has directed that all proceedings are to be audio recorded: “All proceedings are to be audio recorded. The review applicant may ask the tribunal for a copy of the recording.” - see Australian Government, Refugee Review Tribunal, “Principal Member Direction 04: Efficient Conduct of RRT Reviews”, [56] (February 2015 – downloaded from on 6 March 2015) (“Principal Member Direction 04”);
g)practically the recording must be important to allow the Tribunal to review what took place during a hearing. This is especially so:
i)in situations where a Tribunal member resigns or is taken ill before finalising a matter and another member must step in: s.422(1) of the Migration Act; and
ii)where s.422A of the Migration Act envisages the substitution of another member simply because the Principal Member thinks it most efficient to achieve the objectives set out in s.420(1) of the Migration Act;
h)the Tribunal, in reviewing a decision, is not bound by technicalities or the rules of evidence and must act according to substantial justice and the merits of the case: s.420 of the Migration Act. While non-compliance with s.420 of the Migration Act will not necessarily constitute a jurisdictional error, it is relevant to interpreting the other provisions of the Migration Act that relate to functions of the Tribunal: AZADQ v Minister for Immigration & Border Protection [2014] FCCA 2623 at [33] per Judge Simpson;
i)the Tribunal is bound by the rules of natural justice and must act in a manner that is procedurally fair, and s.422B of the Migration Act engages with s.425 of the Migration Act so that s.425(1) of the Migration Act in an exhaustive statement of the hearing rule to the extent that it deals with it: MZZHA v Minister for Immigration & Anor [2014] FCA 814; (2014) 224 FCR 365; (2014) 143 ALD 339 at [31] per North J, applying the High Court’s reasoning in SZBEL;
j)if the applicant had had the transcript or a recording of the Tribunal hearing he could have sought legal advice on the Tribunal’s conduct, specifically as to whether:
i)a claim existed for apprehended bias: Re Refugee Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ; and
ii)the Tribunal complied with its various statutory obligations: s.424AA of the Migration Act,
but without the transcript or a recording these options were prematurely curtailed;
k)the constitutionally protected supervisory jurisdiction of the federal courts to review inferior tribunal decisions for jurisdictional error is undermined when Tribunal proceedings are not transcribed (or recorded);
l)it is submitted that in circumstances where:
i)the Tribunal member thought the proceedings were being recorded (and presumably styled his detail of notes according);
ii)the applicant was presenting evidence and argument through an interpreter; and
iii)the applicant presented supplementary material more than four weeks after the Tribunal hearing, requiring the Tribunal member to review the new material in that context,
there is a real risk that the notes and memory of the Tribunal member unduly confined the scope of the Tribunal hearing evidence and argument upon which the Tribunal Decision was based;
m)it is impossible to know now whether any of the applicant’s evidence or arguments were missed by the Tribunal due to being omitted from, or erroneously transcribed in, the Tribunal member’s notes;
n)the circumstances set out at [j] to [m] immediately above constitute an “issue arising in relation to the decision under review”, triggering the requirement in s.425(1) of the Migration Act for the Tribunal to invite the applicant to appear again;
o)the Tribunal’s system and procedure are designed to achieve its natural justice objectives, and are predicated upon the assumption that the proceedings will be recorded, and failing to provide the applicant with an opportunity for a further, recorded, hearing was a failure to provide natural justice;
p)the Tribunal thereby failed to act in a manner that was fair and just, in breach of s.422B(3) of the Migration Act, which constitutes a jurisdictional error;
q)it is too high an expectation that an unrepresented applicant at hearing with limited knowledge of the Tribunal, and only the assistance of an interpreter, would be able to pick up on non-compliance with s.424AA of the Migration Act or a reasonable apprehension of bias; and
r)the audio recording malfunctioning was the issue which gave rise to s.425(1) of the Migration Act and the requirement to invite the applicant to appear before the Tribunal.
Minister’s submissions
The Minister submits that:
a)there is no basis in the present circumstances of this matter upon which it could be contended that the absence of a recording of the Tribunal hearing amounted to a denial of procedural fairness giving rise to jurisdictional error on the part of the Tribunal in conducting a review of the Delegate’s Decision;
b)while [57] of Principal Member Direction 04 states that “all proceedings are to be audio recorded”, [2] thereof notes that the direction “provides general guidance on the conduct of reviews”, while, more importantly, s.420A(3) of the Migration Act provides that:
The Tribunal should, as far as practicable, comply with the directions. However, non-compliance by the Tribunal with any direction does not mean that the Tribunal's decision on a review is an invalid decision;
c)it is well established that while policy documents should be taken into account and accorded appropriate weight, they are not of themselves mandatory: Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409; (1979) 24 ALR 577; (1979) 2 ALD 60 (“Drake”);
d)there is no requirement in either s.425 or s.430 of the Migration Act that Tribunal hearings should be recorded, and in circumstances where the Tribunal attempted to comply with the requirement to record the Tribunal hearing, and where it did not become apparent that the equipment had malfunctioned until after the conclusion of the Tribunal hearing, that of itself does not amount to a denial of procedural fairness: SZMZT v Minister for Immigration & Citizenship [2009] FMCA 420 (“SZMZT”) at [69] per Scarlett FM;
e)the applicant’s submissions contend that if a transcript was available he could have sought advice on issues such as a claim for apprehended bias or “compliance with various statutory obligations”, but the submission is made in the absence of any assertion by way of affidavit or other evidence that there would be confirmation in the transcript of such an asserted error;
f)essentially, the applicant’s submission is that obtaining the transcript would have enabled him to review it with an “appellate fine-tooth comb” in an attempt to identify a jurisdictional error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 291 per Kirby J; and
g)this ground does not reveal jurisdictional error in the Tribunal Decision and it is a privative clause decision within the meaning of s.474 of the Migration Act.
Consideration
The applicant contends that it was procedurally unfair that the Tribunal did not invite the applicant to another Tribunal hearing due to the audio equipment failing to record and produce a copy of the transcript from the Tribunal hearing, and as such has made a jurisdictional error.
The Court notes the following:
a)the applicant appeared by video link and without representation at the Tribunal hearing, but had a support person and an interpreter present;
b)the Tribunal sent a letter on 2 May 2014 to the applicant inviting him to the Tribunal hearing, and attached to the Tribunal hearing invitation was the “Information sheet R18: Information about Tribunal hearings” (“Information Sheet”) which forms part of Exhibit 1 “Information about Tribunal Hearings Document”;
c)the 2 May 2014 letter makes reference to the attachment as containing “important information about hearings and your rights”;
d)Exhibit 1 contains two separate documents:
i)the Information Sheet which contains a section answering the question of whether the Tribunal hearing is recorded and which states as follows:
All hearings are audio recorded. You may ask the Tribunal for a copy of the recording at the end of the hearing;
ii)Principal Member Direction 04 which at [2] states that:
This direction provides general guidance on the conduct of reviews
and at [57] states that:
… All proceedings are to be audio recorded. The review applicant may ask the tribunal for a copy of the recording;
e)the Tribunal addressed the issue of the recording of the Tribunal hearing at CB 388 at [9] as follows:
The applicant appeared before the Tribunal on 29 May 2014 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. Following the hearing the Tribunal became aware that malfunctioning recording equipment in the hearing room had resulted in the hearing not being recorded properly. The Tribunal has therefore relied on its written notes of the applicant's evidence at the hearing and has referred to this evidence below.
The Tribunal had limited procedural fairness obligations to the applicant arising from the application of the Migration Act, and in particular ss.422B and 425 of the Migration Act: SZBEL.
In Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57; (2001) 75 ALJR 889; (2001) 179 ALR 238 (“Miah”) at [29]-[30] per Gleeson CJ and Hayne J two members of the High Court followed what was said in Kioa & Ors v West & Anor (1985) 159 CLR 550; (1985) 60 ALJR 113; (1985) 62 ALR 321 (“Kioa”), CLR at 612 and 614 per Brennan J, and in Miah at [30] per Gleeson CJ and Hayne J quoted from Kioa, CLR at 614 per Brennan J as follows:
To ascertain what must be done to comply with the principles of natural justice in a particular case, the starting point is the statute creating the power. By construing the statute, one ascertains not only whether the power is conditioned on observance of the principles of natural justice but also whether there are any special procedural steps which, being prescribed by statute, extend or restrict what the principles of natural justice would otherwise require.
The Court finds that:
a)there is no obligation on the Tribunal to comply with the Principal Member Direction 04, and a failure to do so does not invalidate the Tribunal Decision: Migration Act, s.420A(3), see also Drake, FLR at 419 per Bowen CJ and Deane J;
b)section 422A of the Migration Act was raised by the applicant, however, it is not relevant in this case as it relates to the Principal Member directing that the member constituting the Tribunal can be removed and replaced by another member, which is not this case;
c)the Tribunal is under an obligation to act in a manner that is fair and just according to the natural justice hearing rule: Migration Act, s.422B;
d)the applicant was validly invited to appear before the Tribunal, pursuant to ss.425 and 425A of the Migration Act: CB 108-111;
e)there is no requirement contained in ss.425 and 430 of the Migration Act that Tribunal hearings must be recorded;
f)the Tribunal member had made contemporaneous written notes of the Tribunal hearing and relied on these notes: CB 388 at [9], and there is no evidence of any alleged deficiencies (and in particular of the presumed deficiencies referred to in the applicant’s submissions);
g)the applicant has not filed an affidavit or provided any evidence to support any claim of an alleged error made by the Tribunal based on what the applicant says occurred at the Tribunal hearing; and
h)there was no attempt by the applicant to call for the written notes of the Tribunal member, probably because such an attempt would in all likelihood not have been successful: see Migration Act, s.435(1); Administrative Appeals Act 1975 (Cth), s.60(1); Herijanto v Refugee Review Tribunal (No 2) [2000] HCA 21; (2000) 74 ALJR 703; (2000) 170 ALR 574 at [10]-[11] per Gaudron J.
The Federal Court has considered, on several occasions, whether a failure to provide applicants with the Tribunal hearing transcript or Delegate’s interview transcript, is a denial of procedural fairness:
a)in Qaan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 359 (“Qaan”) at [11] per Spender J the Federal Court stated:
In my opinion, the rules of procedural fairness do not require that an intelligible aural record of the proceedings in the RRT be made. See Ex parte Smith; Re Russo [1971] 1 NSWLR 184. Even a failure to follow proper recording procedure would not provide a basis for the Court to conclude that the applicant had been denied procedural fairness;
b)in SZKOB v Minister for Immigration & Citizenship [2007] FCA 1949 (“SZKOB”) at [12]-[14] per Flick J the Federal Court stated:
Given the denials, it is perhaps understandable that the Appellant desires a transcript of what was in fact said during the departmental interview. In the present appeal however, there are a number of answers to the Appellant’s contentions. First, it is not considered that there was any requirement to provide the Appellant with transcript or recording of the interview. In some circumstances, fairness may require a transcript of proceedings to be provided: see National Companies & Securities Commission v Bankers Trust Australia Ltd (1989) 24 FCR 217. There is, however, no immutable requirement to do so: see Adler v Cantwell (1988) 14 ACLR 658.
The content of the requirements of procedural fairness is to be determined by reference to the context in which a particular dispute arises including, in particular, the legislative regime being administered. In the present circumstances, s 422B of the Migration Act 1958 (Cth) provides that Div 4 of Pt 7 “is taken too be an exhaustive statement of the requirements of the natural justice hearing rule”. Neither that Part nor any other provision of the 1958 Act requires a claimant to be provided with a transcript or a tape recording of an interview with the Department.
Even in the absence of s 422B, it is not considered that the common law rules of procedural fairness require the provision of a transcript or a tape recording of the interview on 10 October 2006. Notwithstanding expected difficulties which may arise with respect to a person whose English language proficiency is severely limited, the factual matters being considered are within a narrow compass and are matters within the knowledge of the Appellant. Although there may be potential for misunderstandings between those participating in the interview process, the necessity to retain a tape recording of such interviews or to provide a transcript seems to be an unwarranted formality not required by the common law;
c)in SZITH v Minister for Immigration & Citizenship [2008] FCA 1866 (“SZITH”) at [51]-[52] per Middleton J the Federal Court stated:
His Honour rejected a claimed breach of s 425 as regards the Third Tribunal not providing transcripts or playing tapes of previous Tribunal hearings during its hearing in the course of considering and testing the credibility of the appellant. As already stated, and as his Honour noted, it was accepted that the appellant already had a tape of each hearing.
I do not consider it was incumbent upon the Third Tribunal to accede to the appellant’s request for a transcript of previous Tribunal hearings, even if they were available: see generally SZKOB v Minister for Immigration and Citizenship [2007] FCA 1949 at [12]-[14] per Flick J; and
d)in SZMOO v Minister for Immigration & Citizenship [2009] FCA 211 (“SZMOO”) at [39] per Reeves J the Federal Court stated:
The remaining particulars/grounds (3 to 6 inclusive) essentially complain about the Tribunal’s failure to provide the appellant with a record, whether by way of a compact disc or a transcript, of the appellant’s interview with the Department so that she could explain or clarify the inconsistencies that the Tribunal said were apparent from what she said in that interview and what she said at the hearing before the Tribunal. This is the same complaint as was made in SZKOB v Minister for Immigration and Citizenship [2007] FCA 1949, where Flick J rejected that complaint stating that: “Neither that Part nor any other provision of the 1958 Act requires a claimant to be provided with a transcript or a tape recording of an interview with the Department.”: see at [13] and also at [14]. I respectfully agree with his Honour’s conclusions in this respect. For these reasons, these remaining four particulars/grounds must also be rejected.
The former Federal Magistrates Court has also dealt with the issue of Tribunal recordings malfunctioning. In SZMZT at [68]-[70] per Scarlett FM the Federal Magistrates Court said that:
In my view, there was no need for the Tribunal to schedule a further hearing. Whilst is unfortunate that the sound recording equipment did not record a portion of the Tribunal hearing, this did not compromise the hearing. The Tribunal Member had taken detailed notes and was confident that the Applicants’ evidence had been recorded in contemporaneous written notes.
There is no requirement in either s.425 or s.430 of the Migration Act that the hearing should be recorded. Section 430 of the Act requires the Tribunal to prepare a written statement that sets out the decision, the reasons, the findings on material questions of fact and refers to the evidence and any other material on which the findings of fact were based. There is no requirement for a sound recording or a transcript of the hearing.
The Tribunal did not fall into error, certainly not any jurisdictional error, in declining to schedule a further hearing.
The Court does not consider that the judgments of the Federal Court in Qaan, SZKOB, SZITH and SZMOO, or the former Federal Magistrates Court in SZMZT are plainly wrong (and indeed in the Court’s view they are plainly correct), and in those circumstances this Court:
a)is bound to apply the judgments of the Federal Court as they are directly on point: Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 (“Suh”) at [29] per Spender, Buchanan and Perram JJ; Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 (“SZANS”) at [38] per Weinberg, Jacobson and Lander JJ; CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 (“Fortescue Metals Group”) at [51]-[55] per Judge Lucev; and
b)as a matter of comity, ought to follow SZMZT: SZANS at [38] per Weinberg, Jacobson and Lander JJ; Fortescue Metals Group at [51] per Judge Lucev; See v Granich & Associates [2008] FMCA 27 at [16]-[18] per Lucev FM,
and in those circumstances the jurisdictional error alleged in ground 3 cannot be sustained as it is contrary to authority.
In the above circumstances, it is unnecessary to consider the allegations of bias and non-compliance with statutory obligations which were subsidiary to the main allegation in ground 3. In any event, there is no evidentiary basis capable of sustaining, or even warranting the consideration of, those allegations.
Having regard to the Court’s findings at [17] above, and the authorities referred to, and finding with respect thereto, at [18]-[20] above, the Court is of the view that ground 3 of the Amended Application is not made out, and there is no jurisdictional error in the Tribunal Decision.
Conclusions and orders
The Court has concluded that ground 3 of the Amended Application is not made out and does not establish jurisdictional error in the Tribunal Decision. It follows that there must be an order dismissing the Amended Application.
The Court will hear the parties as to costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 27 August 2019
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