Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant a stateless Palestinian claiming political persecution in Lebanon - conduct of a joint hearing with other applicants by the RRT - whether a breach of s.429 of the Migration Act 1958 (Cth) - whether procedurally unfair.

SZAYW v Minister for Immigration [2004] FMCA 796 (25 November 2004)

SZAYW v Minister for Immigration [2004] FMCA 796 (25 November 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAYW v MINISTER FOR IMMIGRATION
[2004] FMCA 796




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection visa - applicant a stateless Palestinian claiming political persecution in Lebanon - conduct of a joint hearing with other applicants by the RRT - whether a breach of s.429 of the Migration Act 1958 (Cth) - whether procedurally unfair.




Federal Magistrates Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 425, 429

Abbasi v Minister for Immigration [2001] FCA 1274

De Rong Chen v Minister for Immigration [2001] FCA 763

Liu v Minister for Immigration [2001] FCA 1362

Mazhar v Minister for Immigration (2000) 183 ALR 188

Minister for Immigration v SCAR [2003] FCAFC 126

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82

Selliah v Minister for Immigration [1999] FCA 615

Stead v State Government Insurance Commission (1986) 161 CLR 141

SZAFE& Anor v Minister for Immigration [2003] FMCA 410

Applicant:
SZAYW




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1375 of 2003




Delivered on:


25 November 2004




Delivered at:


Sydney




Hearing date:


10 November 2004




Judgment of:


Driver FM




REPRESENTATION

Solicitors for the Applicant:


Mr M Jones

Michael Jones, solicitor




Counsel for the Respondent:


Mr M Wigney




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) The Court directs that the names of applicants 226, 228 and 229 and the applicant in these proceedings not appear on the transcript of the hearing.

(2) A writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 13 July 1999.

(3) A writ of mandamus issue requiring the Minister to cause the Refugee Review Tribunal to reconsider the applicant's protection visa claims according to law.

(4) The respondent is to pay the applicant's costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1375 of 2003

SZAYW



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 13 July 1999. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The relevant background facts are conveniently drawn from the respondent's outline of submissions:

The applicant is a stateless Palestinian whose country of residence before his arrival in Australia was Lebanon. On 29 September 1998 the applicant arrived in Australia and on 16 November 1998 he applied for a Protection Visa (866).[1]

The essence of the applicant's claim to entitlement to a protection visa is that he fears persecution in Lebanon at the hands of Hezbollah or Islamic Jihad.[2] He claimed that he and a number of his friends had become involved or associated with Hezbollah and received military training so that they could attack Israel or Israeli interests in South Lebanon, but that they became scared and departed to Beirut and then Australia. The applicant claimed that he fears that he will be arrested and punished for desertion, rebellion and acts disgraceful to the Islamic action (fatwa) if returned to Lebanon.

On 14 December 1998 a delegate of the respondent refused the applicant's visa application.[3] The delegate was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention.[4]

RRT proceedings

On 23 December 1998, the applicant applied to the RRT for a review of the delegate's decision. A migration agent from Refugee Advice and Casework Service (Australia) Inc. ("RACS") represented the applicant throughout the review proceedings. That agent also represented three of the applicant's friends who departed Lebanon in the same circumstances as the applicant and whose claims were relevantly the same as the applicants. For the purposes of these submissions (and consistently with the RRT's reasons and the relevant correspondence and submissions) those friends will be identified as applicants 226, 228 and 229 (using part of the RRT's case numbering). When lodging the applicant's application to the RRT, RACS stated that the applicant and applicants 226, 228 and 229 were "together for the events which form their claim" and requested that the same member be allocated to each of the applicants.[5]

Pursuant to s.425 of the Act, the applicant was invited to attend a hearing. The applicant responded to the hearing invitation by indicating that he wished to attend the hearing and that he wanted to call each of applicants 226, 228 and 229 as witnesses because, in respect of each of them "he was with me at that time, and we applied about the same case, and we had the same problem together and he knows a lot of things about me."[6] The applicant also indicated that an adviser from RACS would represent him at the hearing.

On April 7 1999, the RRT convened what it referred to as a "joint hearing" of the applications by the applicant and applicants 226, 228 and 229. The RRT's reasons for convening a joint hearing were:

The advisers requested that the same member hear all four cases....Given the applicants' cross-matching claims, the RRT held a joint hearing....&qu;
ot;[7]

The RRT described the conduct of the hearing in the following terms:

As stated before, the advisers (from RACS) had asked the same member hear the four applicants in decisions N98/26226-9 because the applicants in the four cases operated as a group. The Tribunal scheduled hearings on the same day for all four applicants, initially planning to question each applicant separately. The evidence of the applicant in decisions N98/26228 was heard first, over a period of about three hours. Then with that applicant absent, the applicant who is the subject of this decision and the applicants in decisions N98/26226 and N98/26229 were questioned together for about two hours, it having become apparent by the end of the giving of the evidence by applicant N98/26228 that the group's claims were based on experiences all four claimed to have shared in common. The applicant in decision N98/26228 afterwards rejoined the hearing and the Tribunal discussed inconsistencies in the evidence with all four applicants together. The applicant in decision N98/26228 requested time to make a series of additional comments, and these were heard. Both the applicants' advisers, who were present throughout, made submissions in common for all the applicants. The Tribunal put adverse evidence to all the four applicants together. In total, the combined hearings took about seven hours in order to give the four applicants sufficient time to put their individual and common concerns to the Tribunal.

... Neither the applicant nor his ... migration adviser objected to the conduct of the hearing in this manner. Subsequent to the hearing, the applicant's adviser from RACS lodged a number of detailed written submissions and responses with the RRT. One of the lengthy submissions took issue with the conduct of the hearing to the extent that the evidence of applicant 228 was heard separately.[8] ... The complaint appeared to be that the evidence of [applicant] 228 should have been heard together with the evidence from the other applicants. ...

...

On 13 July 1999 the RRT handed down its decision affirming the decision of the delegate refusing the applicant's visa application.[9]

The RRT's decision and reasons

... The RRT's decision turned on the following findings ...

a) the discrimination and harassment that the applicant may suffer as a Palestinian in Lebanon will not amount to persecution;

b) the applicant's claims relating to the link with Hezbollah lacked credibility and there were inconsistencies in the evidence;

c) the applicant could relocate to areas of Lebanon outside Hezbollah control;

d) any censure or disciplinary action the applicant might face from the association or the PLO would not be for a Convention reason.

2. The only ground of challenge to the decision of the RRT advanced in the application and the applicant's written submissions is that the RRT failed to exercise its jurisdiction under the Migration Act 1958 (Cth) ("the Migration Act") by not providing the applicant with a private hearing. This is said to constitute a breach of s.429 of the Migration Act. At the trial before me on 10 November 2004 this was expanded to be also an assertion of a want of procedural fairness under the general law in the conduct of the proceeding by the RRT.

The evidence

3. I received the court book into evidence. I also received into evidence an affidavit by the applicant affirmed on 31 August 2004 and filed in court on 10 November 2004. The applicant deposes that, sometime after 9 March 1999, he received an invitation to go to a hearing before the RRT[10]. The applicant knew that three other applicants whom he had asked to be witnesses in his case would be there on that day but believed that he would be given an opportunity to speak for himself in the RRT and to put his case in his own way. The applicant deposes that when he went to the RRT on the day of the hearing one of the other applicants was given a private hearing lasting about two hours. After that there was a break and then the applicant and the other two men were taken into the hearing room and the presiding member asked them questions all together. The applicant deposes that at no time did the presiding member, or anyone else, tell him that he had the right to be heard in private or ask him if he was willing to give up that right. The applicant deposes that, during the hearing, he did not feel that he had an opportunity to put his own case properly since the questions were directed at all of the men together and they were not given an opportunity to make out their own individual cases.

4. The applicant deposes that he was not aware of his right to a private hearing and did not raise any objection at the time. He thought the RRT could do what it liked about how to conduct the hearing. He deposes that if he had known that he had the right to be heard in private he would have asked the RRT to do that. He believes that the RRT decision not to give him a private hearing meant that he was disadvantaged in not being able to put his case in his own way and answer the presiding member's questions himself.

5. The applicant was cross-examined upon his affidavit. He confirmed a long association with the three other applicants who he had asked to be witnesses in his case. They had all been members of the Islamic Jihad Party associated with Hezbollah and had trained together, left Lebanon together, and were all interviewed together at the Australian Embassy in Beirut. All had claimed to be members of a Lebanese martial arts association for the purposes of obtaining a visa. They came to Australia together and made the same claims in their protection visa applications. All were refused. They each made application to the RRT on the same day and used the same migration adviser (although at the RRT hearing two advisers were involved).

6. However, the applicant denied that he was happy for his case to be heard concurrently with the other three. He said that he was denied an opportunity to give further evidence that he wished to give to the RRT. The applicant said that there was further secret material that he had only disclosed in terms of "key words" and that he was not comfortable disclosing in the presence of his colleagues. This secret information was that the applicant claims to have been a member of the Revolution Council of the Abou Nidal Fatwa movement. The applicant had not told his migration adviser about this and he did not tell the presiding member about his concern in revealing details of his involvement with the Abou Nidal movement.

7. The applicant confirmed that the presiding member had asked him if there was anything differentiating his application from the others. He confirmed that he raised no complaint about the procedure employed by the presiding member at the time or afterwards. He also confirmed that the presiding member had invited him to make a concluding statement in support of his application to the RRT. The applicant stated that he was uncomfortable and uneasy as he was concerned that his secret information might be revealed by his colleagues should they return to Lebanon.

8. I also received into evidence the affidavit of Andrea Marianne Christie David which annexes a transcript of the hearing conducted by the RRT.

Submissions

9. Mr Jones made the following written submissions:

Pursuant to s.429 of the Migration Act the RRT must conduct a hearing in private. Emmett J observed the following in relation to this requirement[11]:

There are good policy reasons for such a requirement. An applicant for a protection visa should be confident that nothing said in the course of a hearing would find its way back to the authorities in the country in which he or she claims to be persecuted.

However, the requirement that the RRT conduct the hearing in private is not qualified to mean that it only need ensure against information reaching the ears of the authorities in the applicant's country. The office of the UN High Commissioner for Refugees advises in relation to the examination of refugee applicants[12]:

It will be necessary for the examiner to gain the confidence of the applicant in order to assist the latter in putting forward his case and in fully explaining his opinions and feelings. In creating such a climate of confidence it is, of course, of the utmost importance that the applicant's statements will be treated as confidential and that he be so informed.

The "climate of confidence" includes satisfying the applicant that details of persecution suffered are not revealed to third parties without the consent of the applicant.

Section 429 is expressed in absolute terms and does not allow the RRT any discretion. Third parties such as interpreters, witnesses or members of the public may only be admitted to the hearing with the informed consent of the applicant.

The section appears in Division 4 of Part 7 of the Act. At the relevant time s.425, which is also in Division 4, required the RRT where it could not decide a case on the papers to give the applicant an opportunity to appear before it to give evidence. This requirement must be understood as incorporating the s.429 requirement that the hearing be in private. A failure to comply with s.429 would therefore mean that the applicant had not been given the opportunity referred to in s.425. This has been found to be a jurisdictional error in a number of cases[13].

In SZAFE[14] the Court said:

[...] Having regard to the terms of s.429, the legislative context in which it appears, the explanation of the provision in the explanatory memorandum to the bill introducing the section and the terms of the decision of Nicholson J in Selliah I find that there are two relevant requirements in s.429. The first is that the public be excluded from RRT hearings. Obviously, some people need to be present. The presiding member must be there and the applicant. An interpreter may be required by an applicant. RRT staff may need to be in the hearing room from time to time. A sound recordist may need to be there. Witnesses may need to be in the hearing room from time to time. However, in order to comply with s.429 the RRT must ensure that persons having no business in relation to an application are excluded. This would ordinarily include persons making separate applications and persons, such as interpreters and witnesses, attending for the purposes of such a separate application. To my mind, this means that s.429 also requires that applications ordinarily be heard separately. That is the second and related requirement of s.429. Applicants are entitled to expect that they be able to present their claims to the RRT in confidence. That confidence would be imperilled if applicants were required to present their claims in the presence of other unrelated applicants.

There will be circumstances in which a presiding member may consider that applications be heard at the same time. Such a circumstance may be where separate applications are made by members of a single family unit and the claims made in the applications depend in whole or part upon one another. In those circumstances it may be desirable, even necessary, for there to be a single or "tandem" hearing. Nevertheless, the affected applicants should be given the opportunity to request a hearing of the whole or part of their application separately from the other applicant(s). Section 429 may also give rise to a legitimate expectation of a private hearing that must not be summarily disappointed. To do so would be procedurally unfair as well as breaching the section.

The applicant has sworn an affidavit to the effect that he was not aware he had a right to a private hearing, and would have asked for one if he had known.

The RRT failed to properly exercise its jurisdiction in this case and the decision should be set aside and remitted for reconsideration.

10. In his oral submissions Mr Jones submits that the circumstances also constituted a breach of the rules of procedural fairness in relation to the conduct of the hearing. Mr Jones submits that the evidence given by the applicant should be accepted as credible and points to pages 14 and 15 of the transcript where the applicant had revealed some details at the RRT hearing of his involvement with the Abou Nidal organisation.

11. Mr Wigney makes the following written submissions:

The respondent submits that:

a) in the particular circumstances of this case the applicant was given a private hearing and therefore there was no breach of s.29 of the Act;

b) it cannot be concluded that Parliament intended that every breach of s.429 (no matter how trivial) would invalidate a decision of the RRT - s.429 is not an inviolable limitation on the RRT's jurisdiction;

c) even if there was a contravention of s.429 in this case, it did not result in any unfairness (or breach of confidence) and could not have had any influence on the outcome of the proceedings - relief should be refused in the exercise of the Court's discretion.

The requirement of a "private" hearing

Section 429 of the Act was considered by Driver FM in SZAFE & Anor v Minister for Immigration.[15] His Honour held that there were two relevant requirements in s.429 of the Act. The first requirement was that the public be excluded from RRT hearings.[16] The second requirement is expressed in the following terms:[17]

.... in order to comply with s.429 the RRT must ensure that persons having no business in relation to an application are excluded, this would ordinarily include persons making separate applications and persons, such as interpreters and witnesses, attending for the purposes of such separate application. To my mind, this means that s.429 also requires that applications ordinarily be heard separately. That is the second and related requirement of s.429. Applicants are entitled to expect that they be able to present their claims to the RRT in confidence. That confidence would be imperilled if applicants were required to present their claims in the presence of other unrelated applicants. (Emphasis added)

In relation to the second requirement, Driver FM observed that there will be circumstances in which a presiding member may consider that applications be heard at the same time. His Honour gave one example of such a circumstance, being where claims made in one application depended in whole or in part upon claims made in another.[18] His Honour then said:

Nevertheless, the affected applicants should be given the opportunity to request a hearing of the whole or part of their application separately from the other applicant(s).

It is respectfully submitted that there is no separate "second requirement" of s.429 of the Act. It is really part and parcel of the first requirement. The requirement that the public be excluded from Tribunal hearings (the first requirement referred to by Driver FM) includes the requirement that, subject always to the consent of the applicant, persons not associated with the particular applicant and application, or the administration of the hearing (ie. members of the public), must be excluded from the hearing. As Driver FM points out, persons associated with the applicant or application will include witnesses that the applicant wishes to call. Advisers and observers that the applicant wishes to be in attendance will also fall within this category. Persons involved in the administration of the hearing will include interpreters and sound recorders or other officers of the RRT. It is not necessary to obtain the applicant's consent to the presence of such persons at the hearing. The so-called second requirement is really just a list of persons who "ordinarily" would be excluded from a Tribunal hearing because they are unrelated to the particular application or the administration of the hearing.

The requirement of a [private] hearing does not oblige the RRT to adopt any particular procedure in the taking of the evidence of the witnesses whose presence at the hearing the applicant requests. The RRT is an administrative and inquisitorial body and is not obliged to adopt the judicial model of taking evidence from one witness at a time and in the absence of other witnesses.[19] Nor is the RRT obliged by s.429 of the Act to take the applicant's evidence in the absence of the witnesses. Whilst in some circumstances such a course would be advisable, it is not a necessary requirement of a private hearing. The applicant's witnesses are not relevantly simply members of the public who "have no business"[20] in relation to the application.

The requirement of a private hearing also does not preclude an applicant from requesting or consenting to the hearing of his or her application together with (in whole or in part) another application or applications. Whilst this is most likely to occur where the other applicant or applicants are related in some way, there is no reason in principle why the ability of an applicant to request or consent to such a course should be restricted to such cases.

Where a joint hearing is requested by an applicant, there is no basis for imposing an obligation on the RRT to specifically advise the applicant of his right to a private hearing. Likewise, whilst it must be accepted that an applicant's consent to a joint hearing must be an informed consent, it does not follow that the RRT is obliged to utter some specific form of words or advice to an applicant about his right to a private hearing. That is all the more so where the applicant is represented by a migration agent.

The hearing in the present case

The hearing in this case did not infringe the requirements of a private hearing. There was no contravention of s.429 of the Act.

The only persons present at the hearing in addition to the applicant and the presiding member were the applicant's adviser, the applicant's notified witnesses, RRT staff and the interpreter. These persons were not disinterested "members of the public" who had "no business" being at the hearing and who the RRT was obliged to exclude from the hearing. Rather they were persons who were intimately involved in the particular application. As stated .. above, s.429 of the Act does not oblige the RRT to take the applicant's evidence and the evidence of the witnesses separately. The RRT was not obliged by the requirement of a private hearing in s.429 to provide the applicant with any advice about the presence of these persons in the hearing room.

Further, the applicant, through his undoubtedly experienced migration agent, either specifically requested or at the very least consented to the form of joint hearing embarked on by the RRT. The adviser had requested that the same member hear the applicant's application and the applications by applicants 226, 228 and 229, who were also the applicant's notified witnesses. The applicant's case was so inextricably intertwined with the other applicants' cases that, taken together with the adviser's specific request, it can be inferred that the applicant consented to the evidence being taken in the way it was by the RRT.[21]

There were no doubt good reasons why the applicant and his adviser requested or consented to the joint hearing. The evidence of each applicant supported the others' cases. By giving evidence together the applicants were able to "consult and agree as to the events and dates"[22] and thereby minimize the risk of inconsistencies in the evidence. The only complaint raised about the procedure at the hearing was a complaint raised after the hearing and was to the effect that it was unfair that one of the applicants (not the applicant in this case) gave evidence separately because he was not able to "consult and agree" with the other applicants about his evidence. That complaint was the very opposite of the complaint now made by the applicant.

In the circumstances, there could be no doubt that the applicants request or consent to the procedure adopted by the RRT at the hearing was an informed request or consent. The applicant has sworn an affidavit in which he deposes, in effect, that his consent to the joint hearing was not an informed consent. This evidence will be the subject of cross-examination at the hearing. The court will, in due course, be invited to reject this evidence. More detailed oral submissions will be made once the evidence is heard. Suffice it to say that it will be submitted that, in the particular circumstances of this case, the applicant's evidence to this effect lacks credibility and smacks of an ex post facto self serving rationalization of the events in question.

The same submission will be made about the applicant's evidence in his affidavit to the effect that he did not feel that he had an opportunity to put his case. Detailed oral submissions will be made about the applicant's evidence at the hearing and after cross-examination.

There is no suggestion, let alone evidence, that the applicant's privacy or the confidentiality of his evidence or claims was imperilled in any way by the presence of his adviser and witnesses at the hearing. These were persons who already had an intimate knowledge of the applicant's claims and evidence. In SZAFE & Anor v Minister for Immigration[23] Driver FM pointed out that the policy behind s.429 was to protect applicants from harm if the information about the application became known in the applicant's country of origin. Nothing in the way this hearing was conducted infringed this policy imperative. The absence of evidence of breach of privacy or confidentiality was one of the reasons that Nicholson J dismissed any claim of breach of s.429 in Selliah v Minister for Immigration.[24]

The facts and circumstances of this case are also distinguishable from those considered by Driver FM in SZAFE & Anor v Minister for Immigration. In that case, Driver FM accepted the evidence of the applicant wife and found that the applicant wife did not clearly assent to the hearing of her evidence in the presence of her husband. His Honour also found that the applicant wife had expressed some discomfort at the hearing of her evidence in the presence of her husband. There was no complaint in this case, the applicant was represented by an experienced migration agent and the applicant's evidence to the effect that he did not feel that he had the opportunity to put his case must be rejected.

Any breach of s.429 does not lead to invalidity

If, contrary to the above submissions, the Court concludes that there has been a contravention of or non-compliance with s.429, it does not necessarily follow that there has been a jurisdictional error. Still less does it follow that the applicant is entitled to the relief sought in the application.

It is acknowledged that in SZAFE & Anor v Minister for Immigration Driver FM found that a breach of s.429, at least in the circumstances of that case, gave rise to a jurisdictional error. If His Honour's decision in that case is that any breach of s.429, no matter how trivial or insignificant, would invalidate a decision of the RRT, it is respectfully submitted that His Honour was wrong.

Ultimately the matter is one of statutory construction. Read in context and together with the other provisions of Division 4 and Part 7 of the Act, including other provisions that are directed to protecting the identity of applicants (ss.439, 431, 440), and together with s.474 of the Act, it cannot be concluded that Parliament intended that a breach of s.429 would necessarily invalidated the review by the RRT.[25] Whilst it may be readily acknowledged that a breach of s.429 that resulted in some procedural unfairness or in some violation of the applicant's privacy or the confidentiality of his application would result in a jurisdictional error, it could not be concluded that Parliament intended that any breach of s.429 of the Act, no matter how trivial, insignificant or irrelevant to the outcome of the review, must invalidate the RRT's decision. Some support for this proposition may be found in the decision of the Full Court in Selliah v Minister for Immigration.[26]

If there was a breach of s.429 of the Act in this case, in all the circumstances it was a most technical breach and one that could have made no difference whatsoever to the outcome of the application and could not have imperilled the privacy, confidentiality and safely of the applicant. Parliament could not have intended that such a breach would invalidate the RRT's decision.

Alternatively, even if the did amount to a jurisdictional error, relief under s.39B is nonetheless discretionary. In the case of jurisdictional error arising from a failure to accord natural justice, relief should be refused where the Court can positively conclude that compliance with the relevant provision could have made no difference to the result.[27] This is undoubtedly such a case. Relief should be refused.

Conclusion

In the result, there was no breach of s.429 and no jurisdictional error. Even if there was, relief should nonetheless be refused on discretionary grounds.

The application should be dismissed with costs.

12. In his oral submissions Mr Wigney took me to the transcript of the RRT hearing, in particular to page 2 at point 5, page 5, page 7, page 8, page 11, pages 14-18, page 17 at point 5, page 21, page 25 at point 5, page 36 at point 6, page 41 and page 44 at point 8. Mr Wigney submits that the transcript shows that the procedure adopted by the presiding member was fair in that the applicant was given a fair opportunity to present to the RRT whatever he wished. He submits that the four applications were so intertwined as to render appropriate a tandem or common hearing. He submits that s.429 of the Migration Act does not compel the exclusion of anyone who has a proper reason to be in a hearing room during a hearing.

13. Mr Wigney conceded that if the evidence of the applicant were accepted as truthful jurisdictional error on the grounds of a breach of the fair hearing rule would have been established. However, he submits that the applicant's evidence should be rejected as false. In particular, Mr Wigney submits that the statements made by the applicant on transcript before the RRT about his involvement with the Abou Nidal organisation should lead to the conclusion that his claims in cross-examination that his information was too secret to reveal are nonsense.

Reasoning

14. Subsection 474(1) of the Migration Act 1958 (Cth) ("the Migration Act") provides:

(1) A privative clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

15. The effect of s.474 of the Act has been considered by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 ("S157") and Re Minister for Immigration; Ex parte Applicants S134/2002 (2003) 195 ALR 1 ("S134").

16. A decision by the Tribunal that involves a jurisdictional error - either a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act - is not a "decision made under the [Migration] Act" and is thus not a privative clause decision as defined in ss.474(2) and (3) of the Act.[28] Such a decision is therefore reviewable notwithstanding s.474.

17. However not every breach of a restriction, limitation or requirement in the Act will result in jurisdictional error. The effect of s.474 of the Act is to necessitate an examination of the restriction, limitation or requirement in question to ascertain whether, in the light of s.474's restrictions on judicial review, the non-observance of those limitations or requirements results in jurisdictional error.[29] This is a matter of statutory construction and involves an attempt to reconcile s.474's restrictions on judicial review with the particular restriction, limitation or requirement.[30]

18. Reconciliation will not be possible where the non-observance is of an "inviolable jurisdictional restraint" or an "imperative duty"[31] and therefore the jurisdictional error cannot be protected by s.474.

19. Examples of situations where an error will amount to a jurisdictional error in the light of s.474 are where there has been a "manifest defect of jurisdiction" and "manifest fraud"[32] or where the error involves a limitation or duty which is "indispensable" or "essential to valid action."[33] However, as a general proposition, jurisdictional error for the purposes of s.474 carries the same meaning as under the general law: SDAV v Minister for Immigration [2003] FCAFC 129.

20. A decision by the Tribunal made unfairly and in serious breach of the rules of natural justice is a jurisdictional error and is therefore not within the scope of protection afforded by s.474.[34]

21. Section 474 will not protect a decision which on its face exceeds jurisdiction.[35] The protection that s.474 purports to afford will also be inapplicable unless the three Hickman provisos are satisfied.[36] The three Hickman[37] provisos are that the decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation and that it is reasonably capable of reference to the power given to the body.

22. I accept Mr Wigney's submission that there was no want of procedural fairness in the hearing conducted by the RRT. This depends in part upon a rejection of the applicant's evidence before me. The applicant's evidence was that he had secret information that he was inhibited from revealing to the presiding member because of the presence of the three other applicants. The applicant told me that this secret information was his asserted membership of the revolution council of the Abou Nadil fatwa movement. The applicant would have me believe that this was too secret for him to reveal in the presence of the other applicants. He told me that he was only able to hint at this secret information at the RRT hearing. Pages 14 and 15 of the transcript of the hearing before the RRT reveal otherwise. The applicant told the presiding member openly and without any hint of reticence that he had been a member of the Abou Nidal organisation before joining Islamic Jihad. According to the applicant, he was involved in recruitment to the Abou Nidal organisation, which he said was involved with murders and kidnapping. According to the applicant his involvement ceased within about a year.

23. In addition, page 5 of the transcript shows that the applicant's migration adviser was given the opportunity to discuss with the presiding member the hearing procedure which the presiding member indicated would be followed. On page 7 of the transcript, the presiding member explained the procedure to the applicant. The presiding member stated:

Therefore if there is anything - any you know significant experience that relates to your application that is different one from another make that clear to me.

24. Neither the applicant nor his migration adviser suggested that there was anything. All they had to do was ask the presiding member to speak to them in private. They did not do so.

25. On page 17 of the transcript the presiding member asked the applicant directly whether there was any other group he joined before joining Islamic Jihad. The applicant answered in the negative. On page 41 of the transcript the presiding member gave each of the applicants a further opportunity to say anything that they wished to say in addition to the evidence that they had already given. The applicant took that opportunity. The applicant made clear that the focus of his concern was his involvement with Islamic Jihad.

26. On page 44 of the transcript the presiding member gave the applicant's migration adviser the opportunity to make submissions and also indicated a willingness to accept further written documentation.

27. I am satisfied, based upon the evidence of what occurred at the RRT hearing, that the hearing was conducted fairly by the presiding member. The applicant and his migration adviser were given ample opportunity to request to speak to the presiding member in private. They were given ample opportunity to reveal whatever they wished to reveal to the presiding member. I reject as false the applicant's claim that he was inhibited in revealing further details about his involvement with the Abou Nidal group. The present application, to the extent that it relies upon asserted procedural unfairness under the general law, fails.

28. The asserted breach of s.429 of the Migration Act, must be considered separately from the claim of procedural unfairness. The fairness of the RRT hearing under the general law is generally irrelevant to a consideration of the asserted breach of s.429. That is because s.429 is not a statutory expression of the general law rules of procedural fairness. Rather, the section is intended to ensure the integrity of the RRT review process. I discussed the background to the section in SZAFE and I do not need to repeat that discussion here. It is sufficient to say that s.429 exists in order to ensure that applicants are not inhibited in bringing forward claims of persecution and in having them considered by the RRT. The section exists in order to ensure that applicants are not put at greater risk by having their persecution claims assessed by the RRT. It does not exist in order to ensure procedural fairness in the assessment of those claims.

29. In SZAFE at [28] and [29] I found that a breach of s.429 constitutes jurisdictional error. I stated at paragraph [29] that the observance of s.429 is an essential pre-requisite to the exercise of power by the RRT. I maintain that view. The section imposes an "imperative duty" upon the RRT. It necessarily follows, in my view, that any breach of s.429 will invalidate an RRT decision. The degree of seriousness of the breach is irrelevant. I reject Mr Wigney's submission to the contrary. The section is either breached, constituting a jurisdictional error, or it is not. The real question to determine is whether the section was breached in this case.

30. Section 429 provides that the hearing of an application for review by the Tribunal must be in private. The obligation to ensure privacy falls upon the RRT, not an applicant. An applicant does not have to ask for privacy; the Tribunal must ensure that there is privacy. Indeed, the RRT must ensure that there is privacy notwithstanding any demand or request by or on behalf of an applicant. An applicant may be foolish or na�ve. An applicant may also be unscrupulous and wish to attempt to set up a sur place claim. The RRT must ensure privacy even where that privacy would conflict with an obligation arising from the general law. The obligation placed upon the RRT by s.429 is both express and mandatory and there is no room for the operation of the general law to the extent that it conflicts with the statutory obligation.

31. As I observed in SZAFE, the persons who a presiding member may properly permit to be in a hearing room will vary depending upon the circumstances. In any case, the presiding member may properly permit persons to remain if their presence is essential to the conduct of the hearing. That will include witnesses called by an applicant, but only for so long as is necessary for those witnesses to give their evidence. It would be inconsistent with the obligation to maintain privacy for a presiding member to permit witnesses to remain as spectators. In this case, the applicant had requested that the other three applicants attend his hearing as his witnesses. It would therefore have been consistent with the operation of s.429 for the presiding member to permit those persons to be in the hearing room when they gave their evidence. It was, however, unnecessary and inconsistent with the operation of s.429 for the presiding member to permit the other three applicants to be in the hearing room when the applicant gave his evidence. It did not matter that the applicant and his migration adviser raised no objection. They may have even desired the process followed by the presiding member.

32. The fact is that the other three applicants had made separate applications that needed to be considered separately. Because the four applicants obviously knew one another over a long period and had made the same claims in their protection visa applications, the presiding member elected to hear the applications concurrently in what amounted to a tandem hearing. That procedure could only be consistent with s.429 if the presiding member had ensured that the applicants gave their own evidence separately. The presiding member heard the evidence of the first of the four applicants separately but the problem appears to have been that the process took so long that the presiding member considered, for reasons of time efficiency, and because the claims all appeared to be the same, that the other three applicants should be heard together. That constituted a breach of the mandatory requirement of s.429.

33. In his written submissions, Mr Wigney points out that there are not two limbs to the operation of s.429 as may have appeared from my earlier decision in SZAFE. I accept that submission. The obligation arising from s.429 is to ensure that the only people in a hearing room are those who need to be there. The obligation is the same whether the individuals are members of the public, members of the Tribunal, staff, interpreters, sound recorders or other applicants. Administrative convenience is not a sufficient reason to allow unrelated applicants to be in a hearing room during the hearing of another application. It is not uncommon for substantial numbers of applicants to make the same or very similar claims. There have been instances of entire plane loads of applicants arriving together, making the same claims at the same time, and using the services of the same migration agent. There would obviously be administrative convenience in hearing such applicants together. Section 429 of the Migration Act does not permit that course.

34. I find that the RRT breached s.429 in permitting three unrelated applicants to be in the hearing room at the time this applicant presented his evidence. I find that the section was breached notwithstanding that the applicant raised no objection to this procedure and may have even desired it. I find that the section was breached notwithstanding that there was no procedural unfairness in this procedure being followed by the RRT. I find that the section was breached notwithstanding that the applicant suffered no detriment from the breach. Adherence to s.429 is a jurisdictional pre-requisite to the exercise of power by the RRT and a breach of the section therefore constitutes jurisdictional error. The consequence is that the application to the RRT will have to be heard again.

35. It may seem an odd result that an applicant who suffered no detriment from the hearing procedure adopted by the RRT should gain the benefit of a fresh hearing. There is a temptation confronting courts reviewing migration decisions to look for jurisdictional error in circumstances where the Court considers that the decision made by the RRT was wrong. Likewise, there is a temptation to avoid finding jurisdictional error in circumstances where the Court considers that the decision reached by the RRT was correct. Both temptations must be avoided. Both worthy and unworthy applicants should receive prerogative relief in cases of jurisdictional error, unless the Court can be satisfied that the provision of that relief should be refused in the exercise of discretion. The only issue relevant to the exercise of discretion in this case is whether a rehearing would be futile. I am not satisfied that it would be. The applicant failed before the RRT in large part because his claims were rejected as not credible. Like the presiding member of the RRT, I found the applicant to be an unimpressive and unreliable witness. However, the assessment of truth or falsity is far from an exact science. There is a reasonable possibility that a different presiding member might form a different view about the applicant's truthfulness. He should have a further opportunity to put his claims. I will grant relief in the nature of writs of certiorari and mandamus.

36. The applicant should also receive an order for costs. A relatively novel issue was raised which required written submissions and oral argument. The applicant was properly represented by an advocate and, if I were applying the costs scale in schedule 1 to the Federal Magistrates Court Rules 2001 (Cth) I would give an advocacy certificate. The proceedings were also rendered somewhat more complex by the need for evidence from the applicant. I rejected that evidence but it was nevertheless necessary to hear it in order to determine the issues in dispute between the parties. Consistently with the outcome of other proceedings of this complexity, I will award costs fixed in the sum of $5,000.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 25 November 2004


--------------------------------------------------------------------------------

[ ]1 The Visa Application with accompanying documents is at court book, pages 1-43.

[ ]2 The applicant's claims were initially set out in a statutory declaration accompanying the visa application: court book, pages 37-40.

[ ]3 court book, pages 44-60.

[ ]4 This being the relevant criterion for the grant of a protection visa: section 36(2) of the Migration Act

[ ]5 court book, page 61.

[ ]6 court book, page 72.

[ ]7 court book, page 140.3.

[ ]8 court book, page 85.

[9] court book, pages 137-160.

[10] court book, page 75

[11] Selliah v Minister for Immigration, [1999] FCA 615 at [36].

[12] Handbook on Procedures and Criteria for Determining Refugee Status, HCR/IP/4/Eng/REV.1, January 1992, para 200.

[13] Minister for Immigration v SCAR [2003] FCAFC 126 at [38]. See also Mazhar v Minister for Immigration (2000) 183 ALR 188, De Rong Chen v Minister for Immigration [2001] FCA 763, Liu v Minister for Immigration [2001] FCA 1362.

[14] SZAFE & Anor v Minister for Immigration [2003] FMCA 410

[ ]15 [2003] FMCA 410.

[ ]16 [2003] FMCA 410 at [18].

[ ]17 [2003] FMCA 410 at [18].

[ ]18 [2003] FMCA 410 at [19].

[ ]19 Though in some circumstances this course would be advisable.

[ ]20 SZAFE & Anor v Minister for Immigration [2003] FMCA 410 at [19].

[ ]21 See in analogous circumstances Abbasi v Minister for Immigration [2001] FCA 1274 at [63].

[ ]22 See court book, page 85.

[ ]23 [2003] FMCA 410.

[ ]24 (Unreported 24 April 1998). On appeal [1999] FCA 615.

[ ]25 Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355.

[ ]26 [1999] FCA 615 at [6].

[ ]27 Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [131].

[28] S157 at [77] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ); S134 at [15] (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ), [61], [72] (Gaudron and Kirby JJ).

[29] S157 at [77] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ); S134 at [72] (Gaudron & Kirby JJ).

[30] S157 at [60], [77] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ)

[31] S157 at [21], [26] (Gleeson CJ), [76] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ); S134 at [79].

[32] See Gleeson CJ in S157 at [12], [13], [18] and see Gleeson CJ's references to "degrees of error" at [12]; see too S157 at [57] and [76] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ). See too the judgment of Callinan J in S 157.

[33] S157 at [20] (Gleeson CJ), [76] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ) and see the references to Bhardwaj v Minister for Immigration (2002) 76 ALJR 598 in S 134 at [38].

[34] S157 at [37]-[38] (Gleeson CJ), [83] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ)

[35] S157 at [57] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ); Gleeson CJ at [13] and Callinan J at [160] use the phrase "manifest error of jurisdiction".

[36] S157 at [64] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ).

[37] R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia