WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 (18 February 2004)

Last Updated: 19 February 2004

FEDERAL COURT OF AUSTRALIA

WAJR v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 106

IMMIGRATION – Refugee Review Tribunal – protection visa – adverse findings on appellant’s credibility – whether affected by appellant’s emotional state – whether appellant fit to give evidence before Tribunal – whether jurisdictional error – rejection of documentary evidence tendered by appellant – suggestion that documentary evidence forgery – no opportunity to appellant to comment on that issue – whether breach of procedural fairness – whether procedural fairness confined by statute so as to be inapplicable to such a breach – new grounds raised on appeal – evidence admitted on appeal – no objection – discretion of Court.


Migration Act 1958 (Cth) s 420, s 422B, s 424A, s 425
Federal Court of Australia Act 1976 (Cth) s 24, s 25(1A), s 27

University of Woollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 cited
Crampton v R [2000] HCA 60; (2000) 206 CLR 161 cited
H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 cited
Low v The Commonwealth [2001] FCA 702 cited
Minister for Immigration and Multicultural and Indigenous Affairs v Scar [2003] FCAFC 126; (2003) 198 ALR 293 cited
NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 cited
VBAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804; (2002) 121 FCR 100 cited
WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 cited
WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188 cited
WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 cited
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24 cited
Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 cited



WAJR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W179 OF 2003


FRENCH J
18 FEBRUARY 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 179 OF 2003

BETWEEN:	WAJR APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	FRENCH
DATE OF ORDER:	18 FEBRUARY 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The decision of the learned Federal Magistrate is set aside save as to the order for costs.

3. An order in the nature of certiorari is made setting aside the decision of the Tribunal.

4. The application for review is remitted to the Tribunal for redetermination according to law.

5. The parties are at liberty to make written submissions within fourteen days on the costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 179 OF 2003

BETWEEN:	WAJR APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	FRENCH
DATE:	18 FEBRUARY 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

1 The appellant is a national of Sri Lanka who came to Australia without lawful authority on 15 September 2001. He was subsequently taken into immigration detention. On 19 September 2002, the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. A delegate of the Minister for Immigration and Multicultural Affairs declined the application on 13 November 2002 and on the following day the appellant applied to the Refugee Review Tribunal (the Tribunal) for review of that decision. After a hearing, which was conducted on 6 January 2003, the Tribunal affirmed the delegate’s decision not to grant a protection visa.

2 On 19 February 2003, the appellant sought judicial review of the Tribunal’s decision and lodged an application in the Federal Court seeking the issue of writs of certiorari, prohibition and mandamus directed to the Tribunal. That application was ultimately heard by the Federal Magistrates Court, presumably pursuant to a remitter order from the Federal Court, although no copy of such an order appeared on the record.

3 On 30 July 2003, Driver FM dismissed the application with costs. On 14 August 2003, the appellant lodged a notice of appeal against the decision of the Federal Magistrates Court. The notice of appeal disclosed no viable grounds. On 24 September 2003, the Chief Justice directed that the appeal be heard and determined by a single judge. The direction was made pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth).

Claims and Evidence

4 The appellant’s claims made in support of his protection visa application and in interviews relating to it included the following points:

1. The appellant came from a prominent political family. He was Chairman of the Youth Association of the United National Party (UNP) in his electoral area in the Anamaduwa electorate of the Puttalam District. He would hold meetings at his family home and use the meetings to support whatever election campaign was running at the time. He delivered handbills, displayed banners and undertook other political activities involved with election campaigns.
2. During the presidential election of 1998, the appellant and his family were subjected to threats in the way of telephone calls and verbal abuse on the streets and people driving dangerously trying to cause injury to him. He claimed that his business was sabotaged.
3. Because of the appellant’s involvement in political activities for the UNP the Opposition Peoples Alliance (PA) was concerned that he would take over his father’s position. He was targeted to prevent him from becoming well-known and influential within the UNP and with non-members. In March 2001, when taking part in a UNP rally to gain support for its policies he and his father, who were handing out handbills, were physically attacked and beaten.
4. Following this incident the appellant said he decided to leave Sri Lanka. Although he reported the beating to the police he was detained, left naked in a cell for two days and was subject to regular beatings and interrogations from the police themselves. Because he had a Tamil name, the police accused him of being a member of the LTTE.
5. The appellant’s father approached the PA politician, Mr Dasanayake, to assist in securing the appellant’s release. Dasanayake agreed to assist provided the father ceased his involvement in politics. The father agreed. The appellant was subsequently released. Dasanayake phoned him on the night of his release and threatened him with death if he did not give up his current or future role in politics. The appellant fled his family home, went into hiding and did not tell the authorities of his change of address.
6. Although the PA was no longer in power and in government, the President is PA and exerts much influence on the police. Dasanayake would still be able to persecute him if he returned to Sri Lanka. He would have to up date his residential address and would come to the attention of police. He cannot relocate to another area in Sri Lanka as the authorities and those persecuting him would become aware of him and make him a victim again.

5 The Tribunal, in its reasons for evidence, set out in some detail oral evidence given by the appellant at the hearing on 6 January 2003. At that hearing the appellant was represented by a legal practitioner, Mr Graham Jones of the Refugee Advice and Casework Service. The appellant had the services of a migration agent in preparing his applications, statements, submissions and documents.

6 In the course of examination by the Tribunal during the hearing the appellant reiterated his claim that although the UNP was in power in Sri Lanka the President belonged to the PA. It was pointed out to the appellant that the UNP had been in government in Sri Lanka since December 2001. Asked how he would be persecuted if he returned to Sri Lanka he said that although the UNP was in government the PA still had power. The UNP only had a two member majority and the other party had all the power.

7 The appellant said he had a letter which would demonstrate that the Muslim Congress could change the government. He then claimed that the Congress was part of the government. He said that because of his involvement in politics in his area a member of the Provincial Council who did not like him would know of his return and would harm him. He was unable or unwilling to say who that person was. Asked why this person would want to harm him he was, according to the Tribunal, unwilling or unable to say. The appellant told the Tribunal that his father had retired from politics in 2002. He also raised a claim that ‘they’ (presumably a reference to PA supporters) had come in search of him and burnt down his house and that even in 2002 they tried to harm him. The Tribunal put it to the appellant that his claim was unconvincing. The appellant replied that Sri Lanka was a third world country and if they wanted to kill they would do so.

8 In relation to his claim that his house had burnt down, the appellant said this happened during the election of 2002. The Tribunal put to him that he was not there in 2002 and there were no elections in that year. He maintained his claim that there were. It was put to him that the national elections had been held in December 2001.

9 The appellant was questioned at some length about the nature of his work for the UNP. He was also asked how such low level activity as he had described could attract the attention of such an important person as Dasanayake who was a Deputy Minister in the PA National Government. The appellant claimed that he wanted to succeed to his father’s position and because of that Dasanayake wanted to destroy him. He claimed that although Dasanayake was at that time in gaol he still had power.

10 The appellant was asked about UNP policies, manifestos and agendas and to explain them. According to the Tribunal he was unable or unwilling to say and avoided answering the question.

11 The Tribunal, in its reasons, also referred to submissions put on the appellant’s behalf by his migration agent and to documents handed up during the hearing in support of the claims. Further documents were submitted after the hearing on behalf of the appellant by his migration agent.

The Tribunal’s Findings

12 The Tribunal made adverse findings in respect of the appellant’s credibility. It said, inter alia:

‘52. Notwithstanding the written claims made by the applicant and in the records of several interviews, the applicant’s evidence at the hearing was so generalised and vague, that I am unable to accept that it was credible or of any veracity. The applicant was unable or unwilling to articulate any specific detail of his claims at the hearing, to describe what his activities were with the UNP or the what, when, where, why or how the incidents which he claimed to have happened did happen. In light of this evidence, I am unable to accept that the applicant suffered persecution by reason of his political opinion in Sri Lanka or that he has a real chance of suffering persecution by reason of his political opinion if he was to return to Sri Lanka.’

The Tribunal expressed ‘grave doubts’ that the appellant was who he claimed to be.

13 The Tribunal was unable to accept that the appellant is, or ever was, a member of the UNP or chairman of a youth association. It was apparent, according to the Tribunal, that he knew nothing of the UNP except in the most general terms. His knowledge of its policies, agendas and manifesto was primitive and vague and did not display the knowledge of even an ordinary member of the party let alone someone who claimed to be the son of a prominent and long-serving UNP politician and high profile activist.

14 In relation to the documents produced by the appellant in support of his claims, the Tribunal had ‘grave doubts’ about their veracity and credibility. For the most part they were purportedly from party allies and politicians which merely reiterated the appellant’s claims in general terms and in much the same words and terms. The Tribunal said:

‘58. In light of his vague and generalised evidence, and his complete lack of any specific details, I am unable to accept that the applicant is, or ever was, a son of a UNP politician, a member of the UNP, had any association with the UNP or was a chairman of a UNP youth association. I am of the view that the applicant has fabricated his claims of such an association to provide for himself the profile of a refugee.’

The Grounds of the Application for Review of the Tribunal’s Decision

15 The grounds contained in the original application for review of the Tribunal’s decision were stated thus:

‘1. That the Refugee Review Tribunal exceeded its jurisdiction in making its decision to affirm the respondent’s decision; and

2. That the Refugee Review Tribunal constructively failed to exercise its jurisdiction in arriving at its decision.’

As appears, the grounds were completely uninformative about the basis upon which it was said that the Tribunal had committed a jurisdictional error.

The Decision of the Federal Magistrates Court

16 When the matter came on before the Federal Magistrates Court, Driver FM held that ‘in simple terms, the RRT did not believe the applicant’s claims’. The submissions raised by the appellant essentially went to the merits of the Tribunal decision. In the event the appellant was unsuccessful, before his Honour, in demonstrating any jurisdictional error.

The Grounds of Appeal As Originally Filed

17 The stated grounds of the appeal in the handwritten notice filed on 14 August 2003 were as follows:

‘3. Those peoples who was tortured and assault me still in Sri Lanka with the power and electing to kill me. (sic)

4. No any consideration had taken on my legal documents even though its mentioned my unconvenient life style in Sri Lanka. I will give you more information in future.’ (sic)

The orders sought were:

‘5. Reconsideration all my case and the decision with the proper eyes.
6. Want to seek protection to live in this world.’

The Substituted Grounds of Appeal

18 Pro bono counsel acting for the appellant submitted an amended minute of proposed substituted appeal grounds. The proposed substitution of the new appeal grounds was not opposed by counsel for the Minister. The substituted appeal grounds reflected the input of counsel who only recently came into the case. Initially I had some hesitation about allowing the substitution. It is ordinarily regarded as exceptional to allow a point to be raised on appeal that was not raised at first instance – University of Woollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481; Crampton v R [2000] HCA 60; (2000) 206 CLR 161. But as Branson and Katz JJ said in H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 (at [3]):

‘This does not mean that an issue can never be argued on appeal that was not argued at the hearing at first instance.’

The nature of appeals from the Federal Magistrates Court to this Court is the same as that of appeals from a single judge of this Court to the Full Court. In Low v The Commonwealth [2001] FCA 702, an appeal heard by Marshall J sitting as a single judge, his Honour said (at [3]):

‘An appeal from a judgment of the Federal Magistrates Court is not conducted de novo, nor is it an appeal in the strict sense. Like appeals from judgments of single judges of this Court, it is conducted as a rehearing of the initial application in the sense that the parties are able to supplement the evidence before the Court at first instance by seeking to adduce additional material which may be admitted into evidence having regard to the dictates of justice in the particular circumstances.’

19 To allow too readily the running of new points, or indeed a whole new case, on appeal is to undermine the appellate process by rendering the trial process almost irrelevant. In the present case however the circumstances were exceptional. The appellant was unrepresented and seriously disadvantaged in the formulation and presentation of a case before the learned magistrate. Counsel has formulated coherent grounds on appeal and they are not objected to by counsel for the Minister. In the circumstances, I decided to allow the substitution of the grounds of appeal. They raise primarily factual issues not raised before the learned magistrate relating to whether the appellant was in a suitable mental state or in a mental state which meant that the hearing by the Tribunal was not a hearing at all. They also raise a question of procedural fairness in connection with the Tribunal’s findings about the genuineness of documents relied upon by the appellant. The grounds of appeal are as follows:

‘Ground 1
The Learned Primary Federal Magistrate erred in holding that the Tribunal did not commit a jurisdictional error in making its findings as to the appellant’s credibility
Whereas the Learned Primary Federal Magistrate ought to have held that the Tribunal failed to take into account the relevant consideration of the appellant’s physical and emotional condition on the day of the Tribunal’s hearing when making its findings as to the appellant’s credibility.

Particulars

Particulars of the appellant’s physical and emotional condition are set out in the appellant’s affidavit dated 2 February 2004 and filed herein, and the appellant’s medical notes dated 2-6 January 2003 inclusively.

Ground 1A
The Learned Primary Federal Magistrate erred in holding that the Tribunal did not commit a jurisdictional error in affirming the respondent’s decision not to grant a protection visa.
Whereas the Learned Primary Federal Magistrate ought to have held that the Tribunal committed a jurisdictional error in that it did not comply with section 425 of the Migration Act.

Particulars

By reason of the appellant’s physical and emotional condition on the day of the Tribunal’s hearing as set out in the appellant’s affidavit dated 2 February 2004 and filed herein, and the appellant’s medical notes dated 2-6 January 2003 inclusively, the appellant was not extended a meaningful invitation to appear before the Tribunal.

Ground 2

The Learned Primary Federal Magistrate erred in holding that the Tribunal did not commit a jurisdictional error in rejecting the genuineness of letters put before the Tribunal by the appellant
Whereas the Learned Primary Federal Magistrate ought to have held that the Tribunal failed to accord the appellant procedural fairness, in that:

(a) the matters which caused the Tribunal to reject the genuineness of letters put before the Tribunal by the appellant were not raised with the appellant by the Tribunal so that he might be heard on those matters;

(b) the matters on which the Tribunal rejected the letters may have been capable of explanation if those matters had been put to the appellant.’

A schedule of correspondence was then set out.

20 It does not appear from the learned magistrate’s reasons for decision that any of the matters now raised were raised before him. There can be no basis upon which it could be said that his Honour erred in failing to hold that the Tribunal made a jurisdictional error in relation to its findings as to credibility. None of the evidence put before this Court was before his Honour.

Statutory Framework – The Migration Act

21 Section 420 of the Migration Act provides:

‘420(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.’

22 Section 422B of the Act, which appears at the commencement of Division 4 of Part 7 relating to the ‘Conduct of Reviews’ by the Tribunal, provides:

‘422B(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 of Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.’

23 Section 424A, which appears in Division 4, provides:

‘424A(1) Subject to subsection (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies – by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.

(3) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.’

24 Section 425 provides:

‘425(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:

(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.’

25 The Tribunal is empowered by s 427(1)(b) to adjourn a review from time to time.

Statutory Framework – Powers of the Court in the Exercise of its Appellate Jurisdiction

26 The Federal Court of Australia Act 1976 (Cth) makes provision for the appellate and related jurisdictions of the Federal Court. Section 24 provides, inter alia:

‘24(1) Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or nor subject to appeal), the Court has jurisdiction to hear and determine:
...

(d) appeals from judgments of the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth other than:

(i) the Family Law Act 1975; or
(ii) the Child Support (Assessment) Act 1989; or
(iii) the Child Support (Registration and Collection) Act 1988; or

(iv) regulations made under an Act referred to in subparagraph (i), (ii) or (iii).

(1AAA) An appeal may not be brought to the Court from a judgment of the Court constituted by a single Judge exercising the appellate jurisdiction of the Court in relation to an appeal from the Federal Magistrates Court.’

27 Section 25 provides, inter alia:

‘25(1A) The appellate jurisdiction of the Court in relation to an appeal from a judgment of the Federal Magistrates Court is to be exercised by a Full Court unless the Chief Justice considers that it is appropriate to the appellate jurisdiction of the Court in relation to the appeal to be exercised by a single judge.’

28 Section 27 deals with the reception of evidence on appeal:

‘27. In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken:

(a) on affidavit; or
(b) by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or
(c) by oral examination before the Court or a Judge; or
(d) otherwise in accordance with section 46.’

Evidence on the Appeal

29 Counsel sought to adduce evidence on the appeal and this was received without objection. It followed from the nature of the grounds of appeal that some evidence would be necessary to support them. The Court is empowered by s 27 to receive evidence on an appeal. Again, the cases in which evidence will be received are exceptional and in this case, absent objection, I decided to receive the evidence so that the integrity of the Tribunal process, so fundamental to the appellant’s claims, could properly be considered.

30 An affidavit sworn by the appellant was received in evidence. In that affidavit the appellant said that he has been held in the Baxter Detention Centre since December 2002. About a week or so before his Tribunal hearing he cut the inside of both of his arms with razor blades. He said he did that because he was depressed after receiving bad news from Sri Lanka about his father and also because of his worries about the Tribunal hearing. He was given anti-depressant and sleeping pills. Nevertheless, in the first days of January he still felt stressed and depressed.

31 At Christmas time in 2002 and in the first part of January 2003, the appellant was held in the Whiskey 2 Compound at Baxter. There were disturbances among some of the detainees at the Centre around Christmas 2002. There were fires lit in one of the compounds. It was not the one he was staying in. He said that on the morning of Sunday 5 January between 7am and 8am two ACM guards came into his room without any warning. They told him to get up and not to shout because others would hear him. He said they shouted at him and he was very scared. They handcuffed his hands very tightly in front of him and started to take him out of the room. A sarong which he was wearing and in which he slept fell down and he was naked. He claimed that the guards refused to do anything about this.

32 The appellant said he was taken to an area in front of their compound. He said he was very frightened because he didn’t know what was going to happen but thought he was being deported. He was told to sit down and was pushed to the ground by the guards. The area had no shade and it was a hot day. He said he felt dizzy and his body was shaking. He had a bad headache. Other detainees were brought out. It took about two hours for all of those from the Whiskey 2 Compound to be brought out into the area in which the appellant was located. After they had all been brought out they were all moved into the shade. While he was in the shade the appellant said he was given a small cup of water. They had been in the shade for some time when three guards took the appellant to an office and told him they had to strip search him. After he was strip searched the guards wanted him to sign a piece of paper. He said he did not know what it was and refused to sign it without talking to a lawyer. These events all occurred apparently on the day prior to the RRT hearing.

33 On the day of the hearing the appellant spoke to his representative, Graham Jones, without an interpreter. He told him that he felt very uncomfortable and did not think he could present himself properly to the Tribunal. He said his representative did not make any response to that.

34 The appellant said:

‘During the RRT hearing I felt I would not answer any of the questions and I do not know what I said to the RRT. I felt like someone was hitting my head with a hammer and I was a little dizzy. I remember I got upset and angry with the RRT person. I remember that at some point after I had spoken harshly with the RRT person Mr Jones told the RRT something about there being lots of problems at Baxter.’

Also tendered was an affidavit of Ann Margaret Heseltine, a legal practitioner, who verified the accuracy of a transcript exhibited to her affidavit by reference to the tapes of the proceeding which she had listened to and against which she checked the transcript.

35 Handwritten medical notes for the appellant were tendered by his counsel. They were marked for identification initially because the respondent was in no position to confirm or deny their authenticity. Subsequently the Court has been advised that the respondent does not contest the authenticity of the notes, which are accordingly marked as Exhibit 1. In those notes there is a record that on 2 January 2003 the appellant expressed suicidal feelings. On 3 January he expressed apprehension about his pending Tribunal hearing and tried to cut himself again. At 6pm on that day he was recorded as ‘depressed and flat’. His head was lowered with poor eye contact. He was observed that evening to speak with a lowered voice and to give monotonous answers most of the time. He was described in the notes by a psychiatric nurse as having very poor insight into his current situation, feeling helpless and useless.

36 The notes made the following day on 4 January record that he said he felt depressed and admitted to occasional suicidal ideation. He was also recorded as expressing some hope that he might succeed in his Tribunal hearing. Medical notes on 6 January refer to his claims of mistreatment by ACM staff on the previous day. The notes also recorded that he had attended his Tribunal review hearing on that day and had lost his temper. He was said to have felt that he handled the review badly and that it would cost him his case. He felt that the incidents of Sunday, 5 January, caused him not to think clearly.

37 Also before the Court was a transcript of the proceedings before the Tribunal. The transcript was exhibited to the affidavit of Ms Heseltine. She deposed to having listened to the tapes of the Tribunal hearing. She said she compared them with the transcript and noted certain alterations on it.

Grounds 1 and 1A – The Appellant’s Physical and Emotional Condition

38 There was no evidence to suggest that the Tribunal was aware that the appellant was labouring under such a mental or physical disability that he could not meaningfully participate in the hearing or that would have a significant effect upon his credibility. There was a point in the proceedings at which the appellant appeared to lose patience with the Tribunal. The Tribunal member at that point said to him:

‘Yes hang on a second [name], please hang on a sec [name], I am talking to the advisor at the moment. I’ll come back to you a little later okay? If you could just control your patience for one moment.’

The appellant’s adviser then said:

‘The reason why he is a bit like that is due to the situation in Baxter and he hasn’t had much sleep and there has been a lot of problems there, so I guess that’s affecting the way he’s behaving you know I hope you understand that.’

The Tribunal member replied, ‘I do’.

39 The appellant’s agent did not ask for any adjournment. He did ask the Tribunal for the opportunity to put further written submissions within seven days of the close of the hearing. After acceding to that request, the Tribunal invited the appellant to say anything else he wanted to say. The appellant did speak in response to that invitation. He referred at one point to his ‘mental condition’.

40 Counsel for the appellant in his submissions on appeal grounds 1 and 1A, referred to the Tribunal’s findings about the appellant’s credibility. He quoted the finding that the appellant’s evidence at the hearing ‘was so generalised and vague, that I am unable to accept that it was credible or of any veracity’. He pointed to the Tribunal’s observation that the appellant was unable or unwilling to respond to questions about the policies, agendas and manifesto of the UNP except in the most general and vague terms. He also cited the finding that the appellant was unable or unwilling to explain his duties in the UNP ‘in anything other than generalised and vague terms’. His inability to provide specific details was also mentioned by the Tribunal. Counsel referred to the Tribunal’s statement that:

‘In light of his vague and generalised evidence, and his complete lack of any specific details, I am unable to accept that the applicant is, or ever was, a son of a UNP politician, a member of the UNP, had any association with the UNP or is a chairman of a UNP youth association.’

41 Counsel submitted that if the Tribunal had been put on notice of the appellant’s emotional and physical conditions which might affect its finding on credibility, it had failed to take into account a relevant consideration and so committed a jurisdictional error. Irrespective of whether the Tribunal was sufficiently aware of the appellant’s conditions on the day of the hearing, the condition meant that the appellant was not accorded a real and meaningful invitation to appear before the Tribunal as required by s 425 of the Migration Act. Again on this basis, which is that covered by ground 1A, it was said the Tribunal had committed a jurisdictional error.

42 The appellant’s agent did draw the attention of the Tribunal member to his client’s emotional state as explaining his impatience in the course of the hearing. He did not suggest to the Tribunal that the appellant’s emotional state was such that he was unfit to give evidence.

43 It is undoubtedly the case that many people, perhaps most people, who appear before the Tribunal are under emotional stress. This does not require an inquiry by the Tribunal in every case where an applicant is evidently under stress, into the question of the applicant’s fitness to appear. The Tribunal would be entitled to expect that a migration agent appearing for an applicant in such a condition would bring it to the attention of the Tribunal and seek to support it by medical evidence with a view to securing an adjournment. The Tribunal is, of course, entitled, and may be obliged in some cases, to take into account the emotional state of an applicant when assessing the applicant’s evidence. That kind of assessment is ultimately central to the fact-finding process of the Tribunal. It is not a matter in which the Court can substitute its own opinion in judicial review proceedings.

44 In my opinion there was nothing to alert the Tribunal to the possibility that it should make any further inquiry about the appellant’s state of mind or propose an adjournment of the hearing.

45 In Minister for Immigration and Multicultural and Indigenous Affairs v Scar [2003] FCAFC 126; (2003) 198 ALR 293, the Full Court upheld the decision of a trial judge setting aside a Tribunal decision where, unknown to the Tribunal, the applicant for review was not in a fit state to take part in the proceedings. In that case the applicant had been informed, some four days before the Tribunal hearing, that his father had died. There was evidence before the primary judge that he was so affected by the news as to require significant medical treatment. A psychological report stated that he was ‘in no condition’ to handle the interview with the teacher. The Tribunal found the applicant’s evidence to be ‘vague’ and ‘confirmed’ and made adverse credibility findings on that basis.

46 The Full Court considered the requirements of s 425 in the circumstances and said (at [37]):

‘The statutory obligation upon the Tribunal to provide a ‘real and meaningful’ invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation.’

Circumstances in which it had been held that the obligations imposed by s 425 of the Act had been breached included a case in which the applicant was unable to attend the hearing because of ill health – NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. A statement made by the Tribunal prior to the hearing which misled an applicant as to issues likely to arise before the Tribunal would also have the like result – VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804; (2002) 121 FCR 100. The present case is distinguishable from Scar on the facts. The evidence does not establish that the appellant was unable to participate effectively in the hearing. For these reasons grounds 1 and 1A fail.

Ground 2

47 The Tribunal, in its reasons for decision, referred to documents produced by the appellant in support of his claims. The Tribunal said:

‘I have grave doubts about their veracity and credibility. For the most part, these letters, purportedly from party allies and politicians, merely reiterate the applicant’s claims in general terms and in much the same words and terms. Most of the letters are typed in the same font and typeface, notwithstanding that they purport to by different authors and to be remote in time and space. (sic) In light of this evidence, I am unable to accept that they are credible or have any veracity. Consequently I am unable to accept the genuineness of these documents and accordingly put no weight on them.’

48 Counsel for the appellant submitted that at no stage did the Tribunal put to the appellant any basis upon which it might reject the authenticity of the letter. Moreover the assertion that most of the letters were typed in the same font and type-face was not sustainable when the letters are inspected. The issue of similarity of type-faces underpinning the Tribunal’s conclusions about some of these letters and its observations about their content generally are matters of fact which were for the Tribunal to determine unless its conclusions were so untenable as to lend support to the existence of some ground of review such as want of good faith. The question raised by ground 2 in this case is whether there was a failure of such procedural fairness as was required in the circumstances.

49 In my opinion s 424A of the Act does not apply to this case. The formation of a view about the evidence by the Tribunal is not ‘information’ of the kind contemplated in that section. Were it otherwise, it could be argued that the section would require the Tribunal to advise an applicant of its adverse conclusions generally in advance of its decision for the purpose of inviting comment upon them.

50 If it be correct that s 424A does not cover this case there are two issues to be considered. The first is whether the failure to invite comment on the Tribunal’s conclusions in respect of the letters would amount to a failure of procedural fairness absent s 422B. The second is whether s 422B so confines the application of procedural fairness that it is not available to support the complaint made by this appellant.

51 As to the first question, there have been two recent decisions of the Full Court of the Federal Court in which issues of procedural fairness involving Tribunal findings about tendered documents arose. They are, WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 and WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188.

52 In WACO an Iranian national claimed to have a well-founded fear of persecution if returned to Iran because of his involvement with a reformist cleric, Shirazi. After the hearing before the Tribunal the applicant’s advisers had provided translated copies of two letters which, if genuine, corroborated the claim of involvement with Shirazi. One purported to be a letter from Shirazi himself to the applicant’s father thanking him for raising a son who sacrificed himself to preserve the true meaning of the Koran. The other was from a third party testifying to his relationship with Shirazi. The Tribunal found the applicant not to be a credible witness. It was not prepared to accept either of the letters tendered to it as genuine. It found that they had been prepared in order to bolster the applicant’s claims. At no time had the Tribunal given any indication to the applicant that it doubted their genuineness, nor did it invite him to comment on that issue.

53 The Full Court held that the letters were ‘central to the [applicant’s] claim in so far as they were tendered as evidence of his relationship with the Ayatollah Shirazi’ – at [39]. Their Honours held that the question whether the letters were genuine did not directly depend upon the evidence of the applicant. A finding that they were forgeries could turn upon the applicant’s credit in so far as it was a finding that the letters had been concocted to advance the applicant’s case. If this were so, fairness would require that before a finding of forgery were made the person so accused should be given the opportunity of answering it. Their Honours said:

‘A finding of forgery, just like a finding of fraud is not one that should lightly be made. Both involve serious allegations.’

Where the finding of fact did not turn upon the credibility of the applicant and there was nothing on the face of the documents themselves to alert the decision-maker that they were forgeries, it was likewise inherently unfair that the decision-maker conclude that they were not genuine without affording the person affected by that conclusion the opportunity of dealing with it. Their Honours said at [55]:

‘Nothing in our mind turns here upon the fact that the oral hearing had been concluded before the letters were procured and forwarded to the Tribunal. The Tribunal could easily have relisted the matter and have arranged for the [applicant] to be apprised of its doubts as to the authenticity of the letters and be given the opportunity to comment upon those doubts and call, if possible, evidence to the contrary.’

Their Honours held that the applicant had succeeded in showing that the purported decision of the Tribunal was affected by jurisdictional error in that it had not afforded natural justice to the applicant by failing to give him the opportunity to answer the suggestion that the letters tendered by him after the hearing were not genuine.

54 WAEJ also concerned an Iranian national. He claimed to have been a member of a branch of the Marz-e-Porgohar, also known as the Movement for Freedom, and that the group had been involved in student demonstrations in July 1999. His job in the group had been to distribute literature. He claimed to have been arrested and detained for interrogation by plain clothes officers of the security organisation, Ettela ‘at. Although subsequently released on bail on reporting conditions he was to be summoned to appear in court. He fled Iran allegedly to avoid that event.

55 One of the matters complained of in the Full Court was that there had been a breach of the rules of natural justice in the failure of the Refugee Review Tribunal to give the appellant the opportunity to deal with concerns held by the Tribunal but not disclosed to him regarding the genuineness of a document submitted by the appellant to the Tribunal in support of his application. This document was an email purportedly from a Mr Farahanipour as Executive Director of Marz-e-Porgohar, forwarded at the request of parties assisting the appellant. The email stated that following the student uprising of 1999 many political activists such as the appellant and the author of the email were imprisoned and even after being released had been under constant surveillance and threat of government agents. The Tribunal made the comment that after having regard to the unsatisfactory nature of the appellant’s evidence and the ‘timing of the document’ it was not satisfied as to its genuineness. The Full Court said (at [52]):

‘On its face the foregoing was a statement by the RRT the document was not authentic. This was not a case where dishonesty on the part of the appellant had been demonstrated thereby providing support for the further conclusion that the appellant had arranged for the preparation, and tender of, a non-authentic, or forged document which the RRT could disregard. There was no finding by the RRT that the evidence of the appellant was so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis.’

Their Honours went on to say that if in truth the RRT did not believe that the document was authentic it should have advised the appellant and his solicitor accordingly and allowed the appellant, through his solicitor, to make any inquiries that were necessary to enable the appellant to produce further material to the Tribunal or to satisfy the Tribunal in respect of the document.

56 It may be that procedural fairness would not require the Tribunal to invite comment prior to finding no more than that it was not satisfied about the reliability or genuineness of particular documents. But where as here, there is a clear implication in the Tribunal’s reasoning by reference to the appearance of the documents, that they were concocted for the purposes of the application, then on the authorities I have referred to, procedural fairness would require an opportunity be given to the appellant to comment. I took a similar approach in WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912.

57 The question that follows is whether s 422B precludes the application of procedural fairness in this context. Section 422B provides that Division 4 of Part 7 is ‘taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with’. The ‘natural justice hearing rule’ is not defined. It is not necessary for present purposes to attempt an exhaustive definition. It can be said, for present purposes, to reflect those aspects of the requirements of procedural fairness that relate to the presentation of an applicant’s claims to the Tribunal. Division 4 therefore may be taken to be exhaustive of those aspects of the requirements of procedural fairness ‘in relation to the matters it deals with’. This latter phrase imports a somewhat more specific limitation upon the scope of procedural fairness than might have been achieved by a global reference to the conduct of reviews by the Tribunal. The ‘matters’ Division 4 deals with are therefore to be identified by reference to its particular provisions and not by reference to its general subject matter, ie the conduct of reviews by the Tribunal. Section 424A, the closest relevant provision, which relates to the opportunity to comment on adverse information, does not deal with the matter raised in this case. Nor does any other provision with the possible exception of s 425.

58 Section 425 requires the Tribunal to invite an applicant to give evidence and to present arguments relating to the issues arising in relation to the decision under review. On one view, the genuineness of the appellant’s documentary evidence was an issue raised by the Tribunal itself and of which the appellant was given no prior notice nor an opportunity to comment before the Tribunal made its decision. If that characterisation be correct, then the Tribunal’s failure to invite the appellant to make submissions on whether the letters relied upon were genuine, or forgeries, or concoctions, was a failure to comply with s 425. A failure to conduct a hearing of the kind contemplated by s 425 in my opinion would amount to a failure to comply with the obligation imposed by that section upon the Tribunal to invite an applicant to participate in such a hearing. That obligation is so central to the conduct of the Tribunal process that it necessarily conditions the power to make an adverse decision on review. A failure to comply with s 425 will therefore amount to jurisdictional error and be amenable to the issue of constitutional or prerogative writs on the principles set out in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24.

59 If it be the case that s 425 has no application to the issue raised in this appeal – that is the question whether the Tribunal was obliged to invite comment on an adverse conclusion not implicitly or explicitly an issue in the hearing, then s 425 does not deal with that matter and the requirements of procedural fairness are not excluded in respect of it by s 422B. This may appear to apply a narrow construction to s 422B. However that construction takes as its point of departure the ordinary meaning of the words used in the section and their evident purpose. That purpose is that, so far as Division 4 deals with matters of procedural fairness relating to the conduct of an application for review, its prescriptions are to be treated as exhaustive in relation to those matters. In so construing s 422B, I have also borne in mind the principle that:

‘...when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.’
Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598

Section 422B contains words of limitation which indicate that it is not intended to confine the requirements of procedural fairness in respect of Tribunal hearings by limiting their application to the matters dealt with in the provisions of Division 4 in the way that they are dealt with there. It follows that if s 425 does not apply in this case, there was a breach of procedural fairness on the part of the Tribunal which amounts to jurisdictional error.
Conclusion

60 The appeal will be allowed and the decision below set aside with consequential orders in relation to the Tribunal’s determination. The costs order below however, should not be disturbed since none of the matters raised on the appeal were raised before the learned magistrate. As to the costs of this appeal, I will allow the parties seven days within which to file written submissions.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:
Dated: 18 February 2004

Counsel for the Applicant:	Mr MD Howard (pro bono)
Counsel for the Respondent:	Mr JD Allanson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 February 2003
Date of Judgment:	18 February 2004