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MIGRATION – jurisdictional error - requirements in s 424A of the Migration Act 1958 (Cth) – natural justice

SRFB v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

SRFB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 252 (8 September 2004)
Last Updated: 8 September 2004

FEDERAL COURT OF AUSTRALIA

SRFB v Minister for Immigration &
Multicultural & Indigenous Affairs [2004] FCAFC 252



MIGRATION – jurisdictional error - requirements in s 424A of the Migration Act 1958 (Cth) – natural justice


Judiciary Act 1903 (Cth)

Migration Act 1958 (Cth) ss 424A, 424B, 424C, 425,

Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)


Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 referred to

Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (1998) 168 ALR 407 referred to

VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 referred to

Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352 referred to

Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 referred to








SRFB & SRGB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 66 of 2004




RYAN, JACOBSON & LANDER JJ
8 SEPTEMBER 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 66 of 2004


On appeal from a single judge of the Federal Court of Australia


BETWEEN: SRFB & SRGB
APPELLANTS
AND: MINISTER FOR IMMIGRATION &
MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: RYAN, JACOBSON & LANDER JJ
DATE OF ORDER: 8 SEPTEMBER 2004
WHERE MADE: ADELAIDE



THE COURT ORDERS THAT:


1. The appeal be dismissed.
2. The appellants pay the respondent’s costs in the proceedings.













Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S66 of 2004


On appeal from a single judge of the Federal Court of Australia


BETWEEN: SRFB & SRGB
APPELLANTS
AND: MINISTER FOR IMMIGRATION &
MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: RYAN, JACOBSON & LANDER JJ
DATE: 8 SEPTEMBER 2004
PLACE: ADELAIDE


REASONS FOR JUDGMENT

Introduction:

1 This is an appeal from a judgment of a judge of the Court (Mansfield J) dismissing an application under s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal (‘the RRT’) made on 5 December 2001. The RRT affirmed a decision of a delegate of the Minister refusing to grant the appellants protection visas.

2 The appellants are citizens of Iran. They claimed to have a well-founded fear of persecution on religious or political grounds arising from charges of apostasy which they said were brought against them when they returned to Iran from India in October 2000. They claimed that they did not know the precise basis of the charges but they offered three possible explanations to the RRT including the claim that they lived together in India for much of the period from 1992 to October 2000 without being married.

3 The RRT rejected the appellants’ claims, largely on the ground that they were implausible. The appellants contended before the learned primary judge that the decision of the RRT was affected by a number of separate grounds of jurisdictional error. Four of those grounds are pursued on the appeal.

4 The first ground is denial of procedural fairness or contravention of s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’). There were said to be three different bases on which this ground was established. One of them was that documents were produced and put to the appellants without warning at the hearing to which they were invited pursuant to s 425 of the Act. It was contended that the obligation contained in s 424A(1) was not satisfied by giving particulars and an opportunity to respond after completion of the hearing.

5 The second ground is ‘Wednesbury’ unreasonableness.

6 The third ground is error of law in failing to apply the correct test of whether the appellants had a well-founded fear of persecution.

7 The fourth ground which is pursued is error of law in failing to deal with certain ‘integers’ of the appellants’ claims.

8 The appellants were married in October 2000 and, where we refer to them individually we will call them the ‘husband’ and the ‘wife’.


The Decision of the RRT

9 The RRT found that the appellants were not reliable witnesses, particularly in respect of evidence about their association with each other and about the wife’s marriage to a third party. This evidence was central to the claimed fear of persecution because it was one of the explanations given by them for the charge of ‘mortad’ or apostasy.

10 The explanations which they gave were that they lived together unmarried, that they were involved with new age teachings known as ‘Osho’ and that they had associated with a political activist whose views were opposed to the government of Iran.

11 The wife’s evidence was that she and her husband began living together in India in 1992 but that in August 1998 she married another man ("the first husband") whom she divorced in April 2000. Her evidence was that she then resumed living with her husband although she did not marry him until about six months later, ie, in October 2000.

12 However, in the course of the hearing the appellants were confronted with a document, being an application for a tourist visa sought by the wife in September 2000. She stated in the applicant form that she was then married to her first husband. The RRT raised with the appellants the inconsistency between this document and the evidence that the wife had divorced her first husband in April 2000 and had resumed living with her husband.

13 The transcript of the hearing shows that the RRT informed the appellants that it would be writing to them to give them an opportunity to respond to the inconsistency. But the RRT also informed the appellants that they could discuss the inconsistency with the presiding member at the hearing. They were told that the issue affected their credibility and the wife provided an oral response at the hearing. We will set out below the relevant portions of the transcript.

14 After the hearing the RRT sent a letter to each of the appellants stating that the information about the tourist visa application was a reason, or part of the reasons, for affirming the decision of the delegate. The letter was apparently sent in accordance with
s 424A.

15 The RRT did not accept the explanation given by the appellants either orally or in their response to the letter namely that the wife did not know in September 2000 whether she was legally married to her first husband. The RRT found that no satisfactory explanation was provided by the appellants as to this aspect of their evidence.

16 The RRT also found that there were other aspects of the claim that the appellants were living together unmarried during the period from 1992 to 2000 which did not make sense.

17 The RRT said that these ‘implausibilities combined with unreliable and inconsistent evidence’ led to the rejection of the appellants’ claim that they were declared ‘mortad’ because they were living together without being married.

18 The RRT also rejected as implausible the appellants’ claim that they were declared ‘mortad’ because of their association with Osho. A number of reasons were given for this finding. One of them was that their explanation of how the Iranian authorities knew of their involvement with Osho, namely that the staff of the Iranian Embassy in Delhi knew that the appellants had visited the Osho centre in Poona, was also implausible.

19 The RRT rejected the claim that the appellants were under threat from the Iranian authorities because of the claimed association with political activists on the ground that the claim was lacking in essential details.

20 The appellants claimed that they returned to Iran from India in October 2000 but they fled after being declared ‘mortad’. The RRT rejected this claim as a logical consequence of its findings about the various explanations given by the appellants for the underlying reason why the Iranian authorities brought the charges against them.


The oral evidence of the ‘inconsistency’

21 The transcript indicates that the husband and the wife were both present at the same time during the hearing. Some of the questions about the wife’s first marriage seem to have been addressed to the husband and the wife.

22 The question of the first marriage was raised by the interviewing officer during the morning of the hearing. The following exchange took place:-

IO: ‘OK. Now, as you know, there was a bit of confusion in your application and with the delegate about whether or not you were previously married. Can you explain to me if you were married before?


LAK: [the wife] Yes.

INT: I married on 24th of August 98, and I got divorced on April 2000. And I didn’t, I didn’t tell that to my adviser.


IO: So you were married the 24th of August 98, and you said you divorced when?


INT: April 2000.


...


IO: Did – how did your organise the divorce?


LAK: I sent a letter to my father and I give permission to him to get with a divorce.’

23 Later in the morning there was an adjournment. After the adjournment the following exchange took place between the appellants and the interviewing officer:-

INT: (For SK) [the husband]

‘If you are not convinced with anything if you ask us we will provide you with more details please just let us know which parts you need further details or elaborations and we will explain the matter.


IO: What I would like to do is put to you some information that the Tribunal has but hasn’t been before you. Because this information is not information that you’ve presented to the Tribunal and it’s adverse information there is a time period by which you can respond to it. What I would like to do though, is to give you the opportunity for me to give it to you in the hearing and to give you the opportunity to discuss it with me if you so wish. But what I will also be doing is presenting a letter to you probably by your adviser and then you will have a time period within which you can respond to this material. So I will put it officially in the sense of it being a written form but I would also like to raise it now in the hearing to give you an opportunity to respond.


Now, I have with me a copy of your tourist visa application that you put into the Australian Consulate General in Mumbai. And I have a copy of both – both of you applied for tourist visas. So I have a copy of both of those and the supporting documentation which you provided with your application for tourist visa. I also have a photocopy of your passport that you presented at that stage to the Australian Consulate General. The information that you supplied to the Australian Consulate General in both cases, in both your applications, is different in a number of ways to the information that you have given me today in the hearing. This information calls into question your credibility and it is significant in this particular case because it was also an issue, credibility was also an issue for different reasons, with the delegate.


Now, what I’d like to do is run through some of the discrepancies or inconsistencies. If you wish, you can respond or your adviser can respond but if you wish you can also stay that and respond in writing after I write to you officially to put these points to you. So the first point relates to [the first husband].’




24 Shortly afterward the following exchange occurred between the interviewing officer and the wife:-

IO: ‘OK, as you said, there’s not you know this information will be put to you through your adviser and you can respond in writing through your adviser. I’m not expecting that you sort of explain it all instantly in the hearing. There will be opportunity for you to sort of put a thought through (inaudible).

OK. The other relates to [the wife] – that you also applied to the Australian Consulate General in Mumbai for a tourist visa to come to Australia. In your initial application for a protection visa you were asked if you had applied at any time in any form to come to Australia. You had ticked that you hadn’t.


INT: Should I explain now?


IO: If you would like, yeah.


...

In the hearing I asked you what point in time you were divorced and at what point in time your husband returned to Iran. And the dates were well and truly before the 13th September 2000.


INT: I said in the interview that it was April/May that my husband [first husband’s name] my ex husband had gone to Iran and this is actually the date that he went back to Iran and it was after that that I sent my divorce papers that I asked for my father to follow up the divorce matter and it takes some time for the divorce often the papers actually happen and to process and on the 30th of September I wasn’t sure whether how far off the divorce papers had gone to I was you know at that time I didn’t I did actually tell the truth and I was married at that time.


IO: The difficulty is there’s a signature on the form from [the first husband’s name] himself. And he has signed to say that the information above is true and correct in all its details. So you can’t both sign the form on the 13th September 2000 and be back in Iran from April/May 2000 onwards.’




25 The interviewing officer returned to the question of the written response to the information a little later. The following exchange took place:

IO: ‘What I will do is, as I said, give you a chance to respond in writing. It’s important to realise that some of the details or discrepancies in a sense are in one sense might be considered minor but taken together they do raise issues about credibility and perhaps the most significant difficulty I have is the fact that in your application you do say that you are married and you have presented a form in September of 2000 signed by your husband.


INT: I just want to say that if he had planned coming here he could have organised for a he could have prepared it so we wouldn’t have to be questioned on credibility.


IO: As I said I’m sort of it’s not conclusive at this point and it will be there will be time for you to respond in writing to the discrepancies that in what you’ve presented to the Tribunal and what you’ve presented to the Australian Consulate General because there are differences. So I don’t really you know there’s no need for you to respond fully now and your adviser might wish to pursue it and sort of take it up in written response. I’m conscious of the time and I know that you had also noted that you wanted a witness to give evidence in relating to Osho.


SK: [the husband] Yes."



The Decision of the Primary Judge

26 The primary judge noted that the RRT’s decision was made before the commencement of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) and, accordingly, it was not necessary to consider the consequences of that enactment which introduced, inter alia, s 422B of the Act.

27 The first contention of denial of procedural fairness was that it was said that the RRT erred by having regard to a submission from a migration agent who had, at the time of the submission, ceased to act for the appellants. The letter from the former migration agent drew to the attention of the RRT the fact that the submission was completed before the appellants had changed advisers; see at [21].

28 His Honour observed, at [22] – [23], that the RRT was entitled, by virtue of the provisions of s 424 of the Act, to have regard to the information even if it was unsolicited. This however was, as his Honour said at [23], subject to the procedural fairness protections contained in s 424A(1).

29 His Honour gave five reasons for finding that s 424A was not enlivened. They were set out at [26]. First, the RRT was not shown to have regarded any information in the document as being information which would be the reason, or part of the reason for affirming the decision.

30 Second, his Honour did not consider that the RRT had referred to the information in the submission from the former agent.

31 Third, his Honour said that counsel for the appellants did not identify any piece of information provided by the former migration agent which was of significance to the RRT and upon which the appellants did not have an opportunity to comment.

32 Fourth, the content of the submission related to events upon which the RRT gave the appellants the opportunity to comment at the hearing.

33 Fifth, there was no particular piece of information which was shown to be information about which the appellants did not have the opportunity to comment at the hearing.

34 The second complaint of denial of procedural fairness was the use which the RRT made of the inconsistency contained in the wife’s application for a tourist visa and the evidence which she and her husband gave that they resumed living together after the wife’s divorce in April 2000.

35 His Honour dismissed this contention for the reasons set out in [32] of his judgment. He considered that the normal sequence which flows from an examination of the provisions of ss 424A, 424C and 425 is that the procedure contemplated by s 424A will be adopted before the hearing. However, he said it does not follow that Division 4 of Part 7 of the Act requires this sequence to be followed invariably.

36 His Honour pointed out that to adopt such a rigid sequence would mean that if the RRT learned of, or realised at or shortly before the hearing, the potential implications of certain information which attracted the application of s 424A, the RRT would have to cancel or adjourn the hearing without then exploring the significance of the information.

37 His Honour said that the consequence would be a series of abbreviated hearings if further information comes to light. He did not consider that this was consistent with the direction to the RRT contained in s 420 of the Act to pursue the objective of a fair, just, economical, informal and quick mechanism of review.

38 His Honour also observed that, if the appellants’ approach to construction were correct, the same rigid sequence would apply to additional information obtained by the RRT under s 424. His Honour considered that the provisions of s 424B indicate that the intention of the legislation is not to revive an obligation to invite an applicant to attend a hearing after obtaining such information or after the provisions of s 424A have been enlivened. This is because s 424B provides that the invitation to an applicant to comment is to specify the way in which the response may be given ‘being the way the Tribunal considers is appropriate in the circumstances’.

39 Moreover, his Honour found that it was unnecessary to decide whether the provisions of Division 4 of Part 7 required that particulars under s 424A be provided before the hearing in the present case. This was because he considered that the RRT offered the appellants an opportunity to have the hearing adjourned before responding to the inconsistent information contained in the tourist visa application; see at [33] – [34].

40 His Honour’s conclusion was set out at [36] as follows:-

‘Consequently, in my judgment, the Tribunal did not fail to comply with s 424A of the Act. It did not oblige the applicants to respond orally to material which they had not previously had the opportunity to address. The Tribunal gave them the opportunity of receiving a notification under s 424A of such adverse material for their comment and of responding to it in writing. The applicants did not take that up exclusively but chose additionally in the circumstances to offer an oral explanation at the hearing. It is not necessary, in view of that conclusion, to determine whether the conduct of the hearing under s 425 followed by the giving of a notice under s 424A would itself amount to jurisdictional error, even if Div 4 of Pt 7 of the Act does impose that rigid sequence upon the conduct of its review.’


41 The third complaint of procedural unfairness arose from the RRT’s rejection of the claim to have been declared mortad because of the appellants’ involvement with Osho. The complaint was that the RRT did not put to the appellants that the distances between Dharwad, where they lived, and the Iranian Embassy in Delhi or the consulates in Bombay or Hyderabad were considerable; see at [40]. The geographical remoteness of these centres from Poona went to the factual question of whether the authorities observed the appellants at the Osho centre at Poona.

42 His Honour considered, at [42] that the conduct of the RRT did not deprive the appellants of a fair hearing on this aspect of the case or of correcting an unfavourable impression about their credibility. His Honour said at [42].

‘They acknowledged the geographical remoteness of Dharwad and Puna from Delhi and from Bombay, and they were given the opportunity to indicate the way in which they had openly demonstrated their interest in or commitment to the principles of Osho. The Tribunal was entitled to conclude on their evidence, which it did not reject on those matters, that the extent of their interest did not involve any overt commitment to Osho different from that which those visiting Puna as tourists might have participated in.’


43 His Honour dismissed the complaint that the RRT had applied the wrong test of whether the appellants had a well-founded fear of persecution. He found that the RRT correctly approached the question of probabilities by considering whether or not past events, as contended by the appellants, had occurred. His Honour said at [56] that the RRT had applied the test stated by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571-572.

44 The appellants’ complaint of unreasonableness was that the RRT made findings which contradicted the only evidence available to it, or without any, or any sufficient evidentiary foundation.

45 His Honour dismissed this ground of review because it turned upon the proposition that the RRT was obliged to accept the explanations given by the appellants. There was no such obligation and there was sufficient evidence before the RRT for it to make the findings which it did; see at [47] – [48] His Honour referred at [50] to the decision of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (1998) 168 ALR 407 at 423 which is authority for the proposition that a finding of credibility is the function of the decision-maker "par excellence".

46 The primary judge considered that the RRT had addressed all of the appellants’ claims. He was of the view, at [65], that the RRT addressed the claim of imputed political opinion. He said that the RRT found that the appellants did not associate with political activists and this was consistent with the RRT’s general concern about the reliability of their evidence.


Consideration

47 It seems to us to be clear that s 424A does not require that particulars be given prior to the oral hearing. This is because the RRT’s obligation is to give particulars of any information it considers would be the reason, or part of the reason, for affirming the decision.

48 Thus, as has been recognised in a number of authorities, s 424A is enlivened only at the point at which the RRT has information and has determined that the information would be the reason or part of the reason for affirming the decision; see VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 at [31] (Gray J); Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352 at [59] (Hill J).

49 Even if, as in the present case, the RRT has acquired information before the hearing, the point at which the information may become a relevant reason will often be reached only after an applicant has responded to questions at the hearing.

50 As Merkel J (with whom Ryan and Conti JJ agreed) observed in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 at [30] ("Al Shamry") s 424A makes no provision for an invitation to be given to an applicant in the course of the hearing. If the RRT is aware prior to the hearing of the significance of the item of information of which the applicant may be unaware, fairness may require that particulars of the information be supplied before the review; Al Shamry at [40]. That was not so in the present case.

51 Counsel for the appellants put an alternative submission. The effect of it was that there is an implied limitation in s 424A that once the need to give the notice arises, the RRT cannot depart from the statutory requirements of s 424A and s 441A by extending an inconsistent invitation to an applicant to respond orally during the hearing. That is to say, the RRT cannot approbate and reprobate the statutory obligations to which it is subject under s 424A.

52 It is of course plain that there is no such express limitation contained in s 424A. However, as Merkel J said in Al Shamry at [39] – [40], s 424A is a statutory enactment of the basic rules of natural justice. Thus, the only implied limitation can be one of fairness in the way in which the statutory obligations are observed.

53 It is impossible to spell out the content of this limitation in more precise terms. Each case must turn on its own facts. An example of procedural unfairness would be if an interviewing officer were to inform an applicant at the hearing that, although the requisite statutory notice would be given after the hearing, the applicant would be treated more favourably if he or she responded orally without waiting for the notice.

54 An examination of the portions of the transcript which we have set out above reveals that the interviewing officer formed the view at the hearing that the information in the tourist visa application was a reason which enlivened the obligation under s 424A. It was a firm view, not a provisional view, contrary to the submissions put by counsel for the Minister.

55 The transcript also reveals that the interviewing officer gave the appellants a choice as to whether to respond immediately or to await receipt of the statutory notice before providing a response. We do not think the transcript indicates that the RRT transgressed the boundaries of fairness by suggesting that the appellants should not wait for the statutory notice.

56 A notice under s 424A was given after the hearing. No complaint is made about it other than the submission that the notice ought to have been given before the hearing had commenced.

57 It was submitted that one of the purposes for which s 424A was enacted is to prevent ambush. However, it seems to us that the statutory purpose can rise no higher that that to which Merkel J referred in Al Shamry, namely to give an applicant an opportunity to deal with matters adverse to his or her interests which the repository of the power is proposing to take into account. We cannot say that the course undertaken by the RRT amounted to a denial of natural justice.

58 The appeal must be dismissed with costs, generally for the reasons otherwise given by the primary judge.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Ryan, Jacobson and Lander.


Associate:

Date: 8 September 2004


Counsel for the Appellants: Mr P Charman



Solicitor for the Appellants: Refugee Advocacy Service of SA



Counsel for the Respondent: Mr M Roder



Solicitor for the Respondent: Sparke Helmore



Date of Hearing: 18 August 2004



Date of Judgment: 8 September 2004



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