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Federal Court of Australia |
Last Updated: 16 February 2005
FEDERAL COURT OF AUSTRALIA
M17/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 86
IMMIGRATION – Refugee –Review of Refugee Review Tribunal
– whether Tribunal breached s 425 – whether Tribunal failed
to
accord the applicant procedural fairness – whether Tribunal failed to take
account of relevant matters – whether the
Tribunal decision vitiated by
apprehended or actual bias.
Judiciary Act 1903 (Cth)
s 39B
Migration Act 1958 (Cth) ss 5(1) 36(2), 65(1), 91R,
91S, 415, 424A, 425, 501(2)
Freedom of Information Act 1982
(Cth)
Migration Legislation Amendment Procedural Fairness) Act
2002 (Cth)
Migration Regulations 1994 Sch 2, Pts 785 and
866, reg 785.511
Minister for Immigration and Multicultural
Affairs v Cho [1999] FCA 946; (1999) 92 FCR 315
Re Refugee Review Tribunal; Ex parte
Aala [2000] HCA 57; (2000) 204 CLR 82
Kanarfi v Minister for Immigration and
Multicultural Affairs [1999] FCA 191
Re Refugee Review Tribunal; Ex
Parte H [2001] HCA 28; (2001) 179 ALR 425
NALQ v Minister for Immigration and
Multicultural and Indigenous Affairs [2004] FCAFC 121
Minister for
Immigration and Multicultural Affairs v Mohammad [2000] FCA 1275; (2000) 101 FCR
434
Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6
FCR 155
Minister for Immigration and Ethnic Affairs v Singh (1997) 74
FCR 553
SBBA v Minister for Immigration and Multicultural and Indigenous
Affairs [2003] FCAFC 90
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR
510
Karimi v Minister for Immigration and Multicultural Affairs [2002
FCAFC 45
Tran v Minister for Immigration and Multicultural Affairs
[2002] FCA 1522
Rahman v Minister for Immigration and Multicultural
Affairs [2000] FCA 1277
Wu v Minister for Immigration and
Multicultural and Indigenous Affairs [2003] FCA 1249
NAQF v Minister
for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781
WAID v Minister for Immigration and Multicultural and Indigenous
Affairs [2003] FCA 220
Win v Minister for Immigration and
Multicultural Affairs [2001] FCA 56; (2001) 105 FCR 212
Huo v Minister for
Immigration and Multicultural and Indigenous Affairs [2002] FCAFC
383
NADR v Minister of Immigration and Multicultural and Indigenous
Affairs [2003] FCAFC 167
W148/00A v Minister for Immigration and
Multicultural Affairs [2001] FCA 679
Minister for Immigration and
Multicultural and Indigenous Affairs v Applicant VEAL of 2002 [2004] FCAFC
179
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Commissioner for Australian
Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Re
Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte
Palme [2003] HCA 56; (2003) 201 ALR 327
Selvadurai v Minister for Immigration and
Ethnic Affairs (1994) 34 ALD 347
Minister for Immigration and
Multicultural Affairs v Shaktu [2001] FCA 1875
Minister for
Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR
611
Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1985) 162 CLR
24
Bruce v Cole (1998) 45 NSWLR 163
Yusuf v Minister for
Immigration and Multicultural Affairs [2001] HCA 30; (2001) 206 CLR 323
Plaintiff
S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24
Refugee Tribunal; Ex Parte H [2001] HCA 28; (2001) 179 ALR 425
Minister
for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507
Law
v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Minister for
Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 198 ALR
293
WAFV of 2002 v Minister for Immigration and Multicultural and
Indigenous Affairs [2003] FCAFC 240
WAJR v Minister for Immigration
and Multicultural and Indigenous Affairs [2004] FCA 106
Re Minister
for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000)
74 ALJR 405
Eshetu v Minister for Immigration and Multicultural Affairs
(1997) 71 FCR 300
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001)
179 ALR 425
IN THE MATTER of an Application
for Writs of Prohibition and Certiorari, Ex Parte; APPLICANT M17/2004 v
MINISTER FOR IMMIGRATION
AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
V 543 of 2004
AND
VWHJ v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
V 625 of 2004
RYAN J
16 FEBRUARY 2005
MELBOURNE
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IN THE MATTER of an Application for Writs of Prohibition and
Certiorari
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Ex Parte:
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BETWEEN:
|
APPLICANT M17/2004
Applicant |
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AND
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|
|
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
Respondent |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS
THAT:
1. The application be
dismissed.
2. The applicant pay the respondent’s costs, to be taxed in
default of agreement.
Note: Settlement and entry
of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA
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VICTORIA DISTRICT REGISTRY
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V 625 of 2004
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BETWEEN:
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VWHJ
Applicant |
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AND:
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
Respondent |
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JUDGE:
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RYAN J
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DATE OF ORDER:
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16 FEBRUARY 2005
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|
WHERE MADE:
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MELBOURNE
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THE COURT ORDERS THAT:
1. The application be
dismissed.
2. The applicant pay the respondent’s costs, to be taxed in
default of agreement.
Note: Settlement and
entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
|
IN THE MATTER of an Application for Writs of Prohibition and
Certiorari
|
|
|
Ex Parte:
|
|
BETWEEN:
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APPLICANT M17/2004
Applicant |
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AND
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|
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS;
Respondent |
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AND:
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AND:
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REASONS FOR JUDGMENT
Introduction
1 There are before the Court two applications by the same applicant pursuant to s 39B of the Judiciary Act 1903 (Cth). The first application, V543 of 2004, seeks declaratory and injunctive relief and a writ of habeas corpus arising from a decision of a delegate of the respondent Minister ("the Minister") to cancel a temporary protection visa held by the applicant. The second application, V624 of 2004, seeks review of a decision dated 22 April 2004 of the Refugee Review Tribunal ("the Tribunal") whereby the Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the applicant a protection visa (class XA). The applicant claims writs of certiorari, prohibition and mandamus in respect of the Tribunal’s decision.
Background
2 The applicant, who claims to be a citizen of Afghanistan, arrived in Australia on 27 October 1999. On 24 November 1999, he applied for a protection (subclass 866) visa under the Migration Act 1958 (Cth) ("the Act"). On 31 August 2000, he was granted a temporary protection (subclass 785) visa on the basis that he was a person to whom Australia had protection obligations under the Refugees Convention. On 5 October 2000, the applicant applied for a further protection (class XA) visa. On 22 December 2003, a delegate of the respondent refused to grant a further protection visa. On 24 December 2003, the applicant applied for review of the delegate’s refusal. On 15 January 2004, the applicant was invited to attend a hearing before the Tribunal on 11 February 2004. The applicant attended the hearing on that date, accompanied by a migration agent. On 13 February 2004, the Tribunal sent the applicant a letter pursuant to s 424A of the Act putting various matters to the applicant for comment. On 5 March, the applicant’s migration agent made submissions in response to the Tribunal’s letter of 13 February 2004. On 2 April 2004, again pursuant to s 424A, the Tribunal wrote a further letter to the applicant in response to which his migration agent made submissions on 13 April 2004. On 22 April 2004, the Tribunal decided to affirm the delegate’s decision that the applicant not be granted a protection visa.
3 In the meantime, on 13 August 2003, the Minister exercised his discretion under s 501(2) of the Act to cancel the applicant’s visa on the basis that he reasonably suspected that the applicant did not pass the character test. As already noted that decision has been challenged in the first of the present proceedings in this Court (V543 of 2004).
Legislation
4 Under s 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Act to mean the 1951 Convention Relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees respectively. Further criteria for the grant of a protection (class XA) visa subclasses 785 and 866 respectively are set out in Pts 785 and 866 of Sch 2 to the Migration Regulations 1994 ("the Regulations").
Protection Obligations
5 Australia is a party to the Refugees Convention and Protocol and, generally speaking, has protection obligations to persons who are refugees as defined in them. Article 1A(2) defines a refugee as any person who:
‘... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such a fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such a fear, is unwilling to return to it’
6 Sections 91R and 91S of the Act qualify some aspects of Art 1A(2) for the purposes of the application of the Act and the Regulations to a particular person. Article 1C provides that the Convention will cease to apply to any protected person where:
‘5) he can no longer, because the circumstances in connexion with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality’
7 Subsection 36(2) of the Act is also qualified by subss (3) to (5) of the same section. Therefore, even if a non-citizen satisfies Art 1A(2) and does not cease to be a protected person by force of a provision of the Convention like Art 1C(5), he or she will not be a person to whom Australia has protection obligations for the purposes of s 36(2) of the Act if s 36(3) applies to that person.
8 Subsections 36(3) and 36(4) of the Act provide that Australia’s protection obligations do not extend to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in any country apart from Australia, including countries of which the non-citizen is a national, unless the non-citizen has a well-founded fear of being persecuted in the relevant country for one or more of the five Convention reasons.
The Tribunal’s Decision
9 The Tribunal had before it the Department’s file, which included the original and current protection visa applications and the delegate’s decision records and other material available to it from a range of sources. The applicant gave oral evidence to the Tribunal on Wednesday, 11 February 2004.
10 The Tribunal noted that, as the applicant had been granted a temporary protection visa, he had been recognised by Australia as a refugee in August 2000 on the basis of circumstances then prevailing in Afghanistan. Once a person’s status as a refugee under the Convention has been affirmed, it is maintained unless he or she comes within the terms of one of the cessation clauses.
11 In this case, the applicant, having been recognised as a refugee, had his temporary protection visa cancelled by the Minister on the basis of "a reasonable suspicion that the applicant did not pass the character test on account of his past and present general conduct".
12 The Tribunal considered that the cancellation of the temporary protection visa did not constitute the cancellation of the applicant’s status as a refugee under the Convention. The Tribunal determined that, although the Minister, in his reasons, had referred to pieces of evidence which he considered supported a finding that the applicant was a citizen of Pakistan and ultimately found that the applicant was a citizen of Pakistan, this decision related to the "character test" in s 501(6)(c)(ii) of the Act and did not of itself amount to the cancellation of the applicant’s status as an Article 1A refugee. The Tribunal found that, as the applicant had never formally had his claims reconsidered in the light of Art 1A, he should be treated, for the purposes of its decision, as continuing to be a refugee as defined in that Article unless he attracted the application of one of the cessation clauses in Art 1C.
13 The Tribunal recognised, however, that its task was to give effect to the Act and not to give direct effect to the Convention. It said at p 31 of its reasons for decision:
‘...it is important to note that consideration of the Convention is relevant under the Act because, according to s 36(2)(a), it is a criterion for a protection visa that the applicant should be a person to whom Australia has "protection obligations". For the purposes of the Act, the provisions of the Convention give way to the statutory qualifications to the concept of "protection obligations" contained in s 36(3) to (5). Section 36(3), as qualified by subsections (4) and (5), provides that Australia is taken not to have protection obligations to non-citizens who had not taken all possible steps to avail themselves of a right to enter and reside in a country where they do not have a well founded fear of being persecuted for a Convention reason. Therefore, while a person is prima facie owed protection obligations if they satisfy Article 1A(2) of the Convention and are not subject to one of the cessation clauses, he will not be considered to be owed protection obligations, and therefore entitled to a protection visa, if they fall within s 36(3). In this case, the Tribunal has in the first instance considered whether the applicant falls within s 36(3). If the applicant does fall within s 36(3), there is no reason for the Tribunal to consider the operation of Article 1C.’
14 The Tribunal found that a number of pieces of evidence before it suggested that the applicant was not from Afghanistan as claimed, but was, instead a national of Pakistan. In relation to each piece of evidence, the Tribunal made the following findings:
Photographic Material
15 The Department had obtained a digital photograph of an application for a Pakistani National Identity Card ("NIC") in the name of Muzaffar Ali, a Pakistani citizen. The Officer in Charge of the Criminal Identification Squad of the Victoria Police made a comparison of a photograph taken of the applicant in detention in Australia and the digital photograph. In that officer’s view there was a "strong similarity" between the images and a "probability that the two images were of the same person". The Tribunal recognised that the officer’s opinion was subjective but was prepared to attach limited weight to it in the absence of any ability to obtain a scientifically objective opinion on the issue of identity.
Applicant’s response to the Pakistani NIC application
16 The applicant, having been provided with a copy of the application and having been asked to comment on it, did not, in his response of 25 September 2002, attempt to deny that the photograph on the application was of him. Whilst he did not explicitly agree that the photograph was of himself, he responded that the "smuggler made too many documents which could help him in arranging everything", apparently suggesting that acts of forgery by the people smuggler who had procured his entry into Australia provided a possible explanation for the existence of the document. In the Tribunal’s opinion, this suggestion of a possible explanation appeared inconsistent with a denial that the applicant was the person depicted in the photograph. In evaluating all of the evidence before it, the Tribunal attached some weight to this consideration.
Applicant’s date of birth
17 The Tribunal also attached weight to the evidence given by the applicant in an interview on 19 December 2001. In that interview, the applicant stated that his year of birth was 1976, the same year in which Muzaffar Ali had been born, but different from the 1979 date given by the applicant in his application for a protection visa. The Tribunal did not accept that the applicant would have been so unfamiliar with his year of birth as to have been unable to give it accurately even if he had been recently awakened or in a stressful situation. Even though he claimed to have rarely used it, he had indicated that he had a taskera and his date of birth must surely have been known to him and his family. The Tribunal considered that, in all the circumstances, the applicant’s response provided a clear indication that the applicant’s year of birth was, in fact, 1976, the same year in which Muzaffar Ali had been born.
Applicant’s knowledge and ability to describe his circumstances, flight into hiding and description of taskera
18 The Tribunal considered that the applicant’s knowledge of, and ability to describe to the Tribunal, his circumstances in Afghanistan fell short of what would have been expected of a resident for twenty years in that country as the applicant claimed to have been. Although the applicant had demonstrated considerable knowledge of Afghanistan, his evidence of the circumstances in which he had gone into hiding in the face of the Taliban’s arrival was "extremely vague". Further, the Tribunal considered that matters like geographical details are capable of being learned and, in view of the evidence in its entirety, the knowledge which the applicant had demonstrated could be explained on that basis. The Tribunal found the applicant’s inability to accurately describe a taskera provided evidence that he had not lived in Afghanistan as claimed since the taskera was the main identity document in Afghanistan.
Authenticity of the applicant’s taskera and Tarkhis
19 The Tribunal did not accept the taskera provided by the applicant as genuine or that it demonstrated the applicant to be a national of Afghanistan. The Tribunal noted that the applicant had earlier claimed that his taskera and other identity documents had been taken from him by the Taliban. At the hearing, the applicant gave evidence to the effect that his father had retrieved the documents from the Taliban. The Tribunal did not accept the applicant’s explanation of how the taskera had been returned to him given that it was erected on the premise that his father, having earlier been beaten up by the Taliban and having had his own son killed by them, had gone to the Taliban to ask them to return his and his son’s taskera. As the applicant had claimed that his father and his family had been subjected to severe brutality by the Taliban in the past, the Tribunal considered that such an approach to the Taliban and such apparent acquiescence by the Taliban to the father’s request defied belief.
20 The Tribunal also noted that the report from the Department’s Document Examination Unit warned that the applicant’s taskera should be treated with caution.
Principal Migration Officer’s report
21 The Tribunal considered a report by the Principal Migration Officer (Compliance) (PMO(C)) at the High Commission in Dhaka. The report stated that, during a visit to Quetta in August 2001, the officer had visited the Court Building at Shahrah-e-Adalat, Quetta, which contained the employment records of police officers. The PMO(C) stated that he had made a positive photographic match between a photograph of the applicant taken in detention and the NIC photograph of Muzaffar Ali. He stated that he had seen that the latter’s NIC number was 601-76-351574, that his date of birth was 18 August 1976 and that he was the son of Safdar Ali Karbali. The Tribunal attached little weight to his opinion that the photograph sighted by him was of the applicant.
22 The PMO(C)’s report also stated that several officers at the District Court at Quetta, when shown the photograph of the applicant taken in detention, had confirmed that the applicant was the former police officer Muzaffar Ali. The Tribunal attached some weight to this assertion.
Language Analysis Reports
23 Three language analyses were undertaken in relation to the applicant. The first concluded with "considerable certainty" that the dialect or language variant spoken by the applicant could be said to originate from the Quetta region of Pakistan. The second concluded that "the asylum seeker unequivocally comes from Ghazni in Afghanistan". The third was an assessment of taped interviews conducted with the applicant. It concluded that the dialect of the applicant originated from Quetta, Pakistan.
24 The Tribunal expressly stated that it attached no weight to any of the language analysis reports that were before it or to an email containing anonymous allegations that prompted the investigation of the applicant.
Correspondence provided by applicant
25 The applicant provided the Tribunal with a copy of a letter purportedly signed by people in the area from which he claimed to have come. The Tribunal found that the letter had been generated at the applicant’s request and was not of sufficient weight to alter the Tribunal’s view, founded on the other evidence, that the applicant had been untruthful about his nationality and that he was not a citizen of Afghanistan who had resided there in the past.
Tribunal’s Conclusion
26 The Tribunal concluded at p 38 of its reasons:
‘While the Tribunal has not been prepared to draw a firm conclusion as to the applicant’s identity or nationality from any one of the pieces of evidence cited above, it has attached some weight to each of these. When considered in its entirety, the evidence does take on considerable weight. Considering the effect in its entirety, the Tribunal finds that the applicant is not a citizen of Afghanistan as claimed but rather that he is Pakistani citizen, Muzaffar Ali, the person depicted in the NIC application obtained by Department and whose NIC the Principal Migration Officer sighted in Quetta.’
27 The Tribunal further concluded that, as a national of Pakistan, the applicant had the right to enter and remain in that country, and that there was nothing to suggest that he had any Convention related fear of persecution in Pakistan. As a result, the Tribunal found that the applicant had not taken all possible steps to enter and reside in a country where he did not have a well-founded fear of persecution and that s 36(3) operated so that Australia was taken not to have protection obligations to him. He therefore could not be granted a protection visa.
Submissions
28 The applicant submits that the Tribunal, in refusing to grant the applicant a protection visa, made four jurisdictional errors.
29 The first is that the Tribunal failed to provide the applicant an oral hearing with the opportunity to "give evidence and present arguments relating to the issues arising in relation to the decision under review" as required by s 425 of the Act before making a decision adverse to him in exercise of the powers conferred on the Tribunal by s 415 of the Act. The hearing to be provided must be meaningful and genuine and not perfunctory. In Minister for Immigration and Multicultural Affairs v Cho [1999] FCA 946; (1999) 92 FCR 315 a Full Court of this Court discussed the nature of the "opportunity to appear ... to give evidence" referred to in s 425(1) in its earlier form. In that case, their Honours held that a real opportunity must be given to the applicant to appear and give evidence.
30 On behalf of the applicant it was submitted that the Tribunal had raised various issues at the hearing on 11 February 2004 but had failed to raise what the applicant considered to be the "substantive and critical" issues identified after the hearing. For example, whether the person in the photograph on the NIC application was the applicant was only identified as an issue and raised by the Tribunal in its correspondence of April 2004.
31 Section 424A provides that the Tribunal must give further relevant information to the applicant "in a way that the Tribunal considers appropriate in the circumstances". Counsel for the applicant submitted that the section must be read together with s 425 which clearly states that an applicant must be invited to appear before the Tribunal to "give evidence and present arguments relating to the issues arising in relation to the decision under review." Effectively, it was contended, the Tribunal had denied the applicant this opportunity. To discharge its statutory duty, it was required to provide the applicant with an opportunity for a further hearing rather than put critical matters and issues to him in writing after the hearing which it had accorded him.
32 The applicant submitted that there is a real and substantial difference between responding by way of viva voce evidence before a Tribunal compared with providing written submissions, particularly where the critical issue turns on credibility (see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82.).
33 It was said that the Tribunal had failed to review the applicant’s contentions in respect of the photograph and had failed to assess his claim at the hearing that he was not the person depicted in the photograph. The Tribunal regarded the applicant’s statement in his letter in response of 25 September 2002 that "the smuggler made too many documents which could help him in arranging everything" as "apparently suggesting that acts of forgery by the people smuggler provided a possible explanation for the existence of the document". In the applicant’s submission, the Tribunal should have sought to clarify this statement with the applicant at a hearing and should have given him an opportunity to explain it in his own words.
34 The Tribunal also made a finding that the applicant’s knowledge of geographical details had been learned to support his application without subjecting that supposition to any scrutiny at the hearing. It did not question the applicant at all about his knowledge of the geography of his claimed village of origin or of Afghanistan in general.
35 It was also submitted that support for the proposition that the hearing had been merely perfunctory was provided by the fact that the hearing had continued when the applicant’s interpreter took a bathroom break.
36 The second error alleged by the applicant is that the Tribunal failed to accord the applicant procedural fairness in several respects. The first, which was not pressed at the hearing in this Court, was based on the Tribunal’s reliance upon a response given by the applicant in an interview with an officer of the delegate in December 2001 said to demonstrate a lack of familiarity with the taskera. That response was regarded by the Tribunal as supporting its conclusion that the applicant was not from Afghanistan. However, at that interview, the applicant had not been provided with any country information about taskeras and had not been given an opportunity to respond to matters which the Tribunal considered contradicted his responses to the delegate’s officer. It was submitted that the Tribunal should have satisfied itself that the responses provided by the applicant at the interview had been procured in fair circumstances and had not been made in circumstances where he was not given an opportunity to respond to information adverse to, or contradictory of, his claims.
37 The second denial of procedural fairness was said to consist in the Tribunal’s failure to provide copies of all linguistic analysis reports to the applicant or his representatives. Further, the applicant alleges that there existed three linguistic reports but that he had an opportunity to comment on only two of them. The Tribunal member stated that he would check to see whether the applicant had been provided with a third linguistic analysis on which to comment. However, the applicant alleges that no such further enquiries were made. The Tribunal accorded the linguistic reports no weight because of their conflicting conclusions. The applicant submits that he was denied a proper or fair opportunity to comment meaningfully upon the reports and assess each report and its findings. Had the applicant been provided with copies of all three reports, his legal representative could have made submissions about the weight to be attributed to each document.
38 In the third place, it was said that the Tribunal had failed to disclose all relevant material to the applicant or his legal representative. The applicant’s migration agent requested that the Tribunal conduct a formal internal review of a decision under the Freedom of Information Act 1982 (Cth) as she was concerned that core documents may have been exempted with the effect of compromising the applicant’s assessment of the evidence. The Tribunal advised that the member reviewing the case was satisfied that the representative had been provided with particulars of all matters that might be adverse to the applicant’s claims and to which weight might be attached. The applicant submitted that, although the Tribunal had considered that there was no information on the file which was adverse to the applicant’s claim and of probative value, there may have been information or material in it that was, in fact, favourable to the applicant’s case and relevant.
39 Finally under this head, it was contended that the Tribunal had failed to test the applicant’s geographical knowledge before dismissing it as "learnt". The Tribunal made this finding without subjecting the applicant’s knowledge to any scrutiny at the hearing. It did not question the applicant at all about his knowledge relating to the geography of his village or Afghanistan generally.
40 The third error alleged by the applicant was that the Tribunal, in assessing the applicant’s claims, had failed to take into account the following relevant matters:
(a) The map drawn by the applicant at the interview of December 2001, a consideration of which may have had a bearing on the Tribunal’s conclusion that the applicant’s knowledge of geographical detail had been learnt. Asking the applicant to draw a map of his region amounted to a test of credibility. The Tribunal was therefore required to take it into account: Kanarfi v Minister for Immigration and Multicultural Affairs [1999] FCA 191.
(b) The circumstances of the interview of 19 December 2001, particularly that the applicant had been abruptly awakened by Department of Immigration officers, and had been frightened and not in a position to concentrate. Given the weight which the Tribunal attributed to the answers of the applicant, in particular in giving his year of birth which accorded with that on Muzaffar Ali’s NIC application rather than that asserted elsewhere to be his own, it was obliged to take into account the circumstances of the interview and any bearing that these circumstances may have had upon his answers.
41 The fourth error alleged by the applicant was that the Tribunal had not bona fide attempted to exercise its statutory power because its decision was vitiated by apprehended or ostensible bias. The bias, it was said, can be discerned from the reasons for decision and the manner in which the Tribunal member conducted the hearing. In particular, it was contended that the Tribunal had denied the applicant a fair opportunity to be heard on critical matters and had denied him procedural fairness at the hearing. The Tribunal also found the applicant’s knowledge and description of matters in Afghanistan to have been "deficient in significant respects" where, according to the applicant, no such deficiency was demonstrated at the hearing. The Tribunal, as well, largely relied on material, including the applicant’s previous responses generated from the cancellation decision, indicating that it was disposed to consider from the outset that the applicant was untruthful. The Tribunal did not engage in proper decision-making. It did not accord weight to material that was supportive of the applicant, namely the correspondence submitted by him and signed by people in what he claimed to have been his village or to his father’s documents. Nor did it make a finding that the material had been forged or fabricated to bolster the applicant’s claims. In these ways, the Tribunal had failed to consider independently and properly the weight of the material.
42 The applicant submits that the factors recited above may, in combination, have led a fair-minded lay observer reasonably to apprehend that the Tribunal did not bring an impartial mind to the resolution of the questions and issues it had to decide and determine: Re Refugee Review Tribunal; Ex Parte H [2001] HCA 28; (2001) 179 ALR 425 per Gleeson CJ, Gaudron and Gummow JJ at [27]–[28].
Respondent’s submissions
43 For the Minister, it was submitted that s 425 in its amended form requires the Tribunal to issue a genuine invitation to an applicant to appear but does not control the content of any hearing that subsequently occurs. (NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121; Minister for Immigration and Multicultural Affairs v Mohammad [2000] FCA 1275; (2000) 101 FCR 434; Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472) As the present applicant was undeniably invited to, and did, attend a hearing (at which he was represented by a migration agent and assisted by an interpreter) on 11 February 2004, there was no contravention of s 425.
44 Counsel for the Minister also noted that the migration agent had subsequently made extremely detailed submissions on the applicant’s behalf as to the issues that had arisen from the hearing, and from the letters that had been sent to the applicant by the Tribunal pursuant to s 424A. The migration agent did not at any stage ask the Tribunal to conduct a further oral hearing.
45 Further or alternatively, the Minister contended, Minister for Immigration and Multicultural Affairs v Cho (supra), upon which the applicant relied, does not support the applicant’s argument as it says no more than that the opportunity to appear to give evidence formerly conferred by s 425 has to be a "real opportunity". In the Minister’s submission, a two-hour hearing plainly complied with that requirement. Nor, it was submitted, does Cho support the suggestion that the Tribunal was required to question the applicant as to every matter that might be relevant to its decision or that the applicant had to be given an opportunity to respond orally to any adverse material that the Tribunal might have proposed to take into account.
46 Furthermore, the Minister contended, the Tribunal was not required to question the applicant about matters relevant to his application. Rather, it is incumbent upon an applicant to advance whatever information he or she thinks is necessary and, if that information is not sufficient to satisfy the Tribunal that the applicant is entitled to a visa, then the Tribunal may refuse the application without itself being obliged to attempt to gather material to support the applicant’s claims; (Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169-170; Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553, 558, 651, SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90 [8], Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 576 [187]; Karimi v Minister for Immigration and Multicultural Affairs [2002 FCAFC 45, [21]; Tran v Minister for Immigration and Multicultural Affairs [2002] FCA 1522, [25]; Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277, [29].)
47 Counsel for the Minister next contended that the Tribunal had not denied the applicant procedural fairness in relation to the four matters identified in the applicant’s submissions because the application to the Tribunal had been made on 24 December 2003 which was after the commencement of s 422B of the Act (which had been inserted into the Act by the Migration Legislation Amendment Procedural Fairness) Act 2002 (Cth)). Section 422B provides that Div 4 of Pt 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". As Div 4 includes s 424A and s 425 of the Act, those sections are therefore taken to be an exhaustive statement of the right of an applicant to be invited to attend a hearing and to respond to adverse information. (Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1249, [20]-[23]; NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781, [59], [85]-[87]; WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220, [557]). The applicant cannot rely upon an asserted failure to comply with the common law rules of procedural fairness because those rules have been excluded by s 422B.
48 As to the applicant’s unfamiliarity with the taskera, it was pointed out that the applicant had been given an opportunity to comment on the matter in the first of the letters pursuant to s 424A sent to him on 13 February 2004. The suggestion that the applicant ought to have been given an opportunity to comment orally was said to be inconsistent with s 424B of the Act, which provides that, if a person is invited under s 424A to comment on information, "the invitation is to specify the way in which the additional information or the comments may be given, being the way in which the Tribunal considers is appropriate in the circumstances". This Court has accepted that the effect of that provision is that not even the receipt by the Tribunal of further information after a hearing necessitates a further hearing. (Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56; (2001) 105 FCR 212). It is for the Tribunal to determine how a particular applicant should be invited to make any relevant comments. (Huo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 383, [9].
49 In relation to the taskera, the Minister argued that the applicant had implicitly accepted that his original description of the document in December 2001 had been incorrect and had sought to explain at the hearing his unfamiliarity with the document rather than dispute that he was unfamiliar with it. In supplying, late in the decision-making process, a copy of his taskera which was very different in form from the one which he had described in December 2001, the applicant made it impossible to dispute the accuracy of the country information about the form of a genuine taskera. Once it is accepted that the applicant did not dispute the inaccuracy of his initial description of a taskera, it is clear that the applicant’s complaint is not about the country information related to the form of a taskera, but about the Tribunal’s refusal to accept the explanation which he had provided of his unfamiliarity with that document. It is well-established that it is for the Tribunal to assess the credibility of claims made by an applicant (NADR v Minister of Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167 [8]; W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679, [64]).
50 In relation to the reports by the linguistic analysts, the Minister submitted that, even if the rules of procedural fairness had not been excluded, this part of the applicant’s case should be rejected for three reasons. First, it had been submitted by the applicant that the reports were, at best, inconclusive. This had been accepted by the Tribunal which, accordingly, attached no weight to any of the reports. The applicant’s submission that he should have been able to see the reports in order to argue that the report favourable to him should have been accorded weight was inconsistent with his primary submission that linguistic reports were inherently unreliable. Secondly, procedural fairness does not require the disclosure of information that a decision-maker has expressly indicated, at the time of making the decision, was not given any weight. (Minister for Immigration and Multicultural and Indigenous Affairs v Applicant VEAL of 2002 [2004] FCAFC 179, [78]). Thirdly, there is no support for the applicant’s claim that procedural fairness confers any right to access, or to comment upon the weight to be given, to favourable information that is before a decision maker (see Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 629 which holds that an opportunity is to be given to deal with adverse information; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 590-591 reflects that the requirements of procedural fairness are limited to adverse information. See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 201 ALR 327, [21].
51 On behalf of the Minister, it was submitted that the Tribunal had acted within power in declining further to delay its decision to accede to a request by the applicant to conduct a formal review of the decision that had been made on the request under the Freedom of Information Act. Section 420 of the Act provides that the Tribunal is generally free to determine its own procedure, and that, in doing so, it should "pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick". The Tribunal could not achieve those objectives if it were required to accede to every request made of it. The applicant had failed to identify any rule of law obliging the Tribunal to provide the information that he had requested. Insofar as the applicant had invoked the general rules of procedural fairness, it was urged that his claim should be rejected for two reasons. In the first place, the common law rules of procedural fairness have now been excluded by s 422B of the Act, and there is no statutory right conferred by any provision of Div 4 of Pt 7 that would support the applicant’s claims about what the Tribunal was bound to do. Secondly, even if the rules of procedural fairness still applied, they have never been held to confer upon an applicant a right to be given all of the information that is before a decision-maker against the possibility that some of it may be favourable to the applicant and relevant to the decision to be made.
52 The Minister next submitted that the applicant had not identified any limitation upon the Tribunal’s powers, and that there was none, which precluded the Tribunal from finding that the applicant’s knowledge of the geography of Afghanistan had been "learnt" without questioning him about it orally. The Tribunal is not required to accept uncritically the claims made by an applicant, and does not have to have rebutting evidence before it can lawfully hold that a particular factual assertion by an applicant is not made out. (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, 348; Minister for Immigration and Multicultural Affairs v Shaktu [2001] FCA 1875, [19]).
53 In relation to the applicant’s submissions that the Tribunal, in assessing the applicant’s claims, had failed to take into account three relevant matters, Counsel for the Minister made the following submissions:
54 With reference to the map drawn by the applicant at the interview of December 2001, it was said to be unclear how drawing a map would have demonstrated that knowledge had not been "learnt". The applicant’s reliance upon Kanarfi v Minister for Immigration and Multicultural Affairs (supra) was misplaced as that case did not turn on a failure to take into account a relevant matter but on a view of s 420 of the Act that has since been rejected by the High Court (Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, [49], [75], [107]-[109], [158], [179]. In any event, in the respondent’s submission, Kanarfi is distinguishable on its facts from the present case.
55 More generally, the Minister contended that the applicant has misconceived the nature of that species of jurisdictional error which consists of failing to take into account a relevant matter. That does not occur merely because a particular piece of evidence is "relevant" to a decision in that it may assist a decision-maker in arriving at a given result. Rather, it involves a failure to consider matters that a decision-maker is bound to take into account (Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1985) 162 CLR 24, 39-40; Bruce v Cole (1998) 45 NSWLR 163, 185-186). Those matters are to be identified by reference to the legislation pursuant to which a decision is made (Yusuf v Minister for Immigration and Multicultural Affairs [2001] HCA 30; (2001) 206 CLR 323, [73]).
56 The evidence of the drawing of the map and the circumstances of the interview in December 2001 went to the factual issue of where the applicant lived, not to any matter which the Act bound a decision-maker to take into account in granting or refusing a visa of the relevant kind. As a consequence, the "relevant matter" ground of review is not available. In any event, the Minister did not concede that failure to take into account a relevant matter constitutes jurisdictional error as explained in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24.
57 Finally, it was submitted on behalf of the Minister that the applicant’s claim of apprehended or ostensible bias is ill-founded. The applicant, it was said, had failed to recognise the test for establishing apprehended bias in relation to a body such as a Tribunal (Re Refugee Tribunal; Ex Parte H (2001) (supra) at [28]) and had not understood the strictly limited concept of "prejudgment". (See Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507, [71]-[72]; Law v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 100). It was further submitted for the respondent that there is no material before the Court to support a claim of apprehended bias.
Resolution of the issues
(i) Did the Tribunal comply with s 425?
58 Section 425 of the Act provides;
‘Tribunal must invite applicant to appear
(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.’
Compliance with that section was held in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 198 ALR 293 to be a precondition to the valid exercise of the Tribunal´s jurisdiction. Failure to comply would therefore be a jurisdictional error.
59 In her submissions, Counsel for the applicant referred to Minister for Immigration and Multicultural Affairs v Cho (supra) which discussed the nature of the "opportunity to appear ... to give evidence" referred to in s 425(1) in its earlier form. In that case, Tamberlin and Katz JJ said, at 322 [29]:
‘In considering the extent of the requirements imposed by s 425 it is important to keep in mind that the exercise is essentially one of statutory interpretation...Care must be taken not to confuse the question of the interpretation of s 425 according to its language with a question as to whether the full range of natural justice requirements should be injected into s 425 under the guise of giving content to an obligation to afford an "opportunity to give evidence".’
60 Cho was decided before the Migration Legislation Amendment Act (No 1) 1998 came into effect on 1 June 1999. The former version of the section obliged the Tribunal to "give the applicant an opportunity to appear" whereas the currently applicable version obliges it to "invite the applicant to appear".
61 I accept the submission advanced on behalf of the Minister that s 425 in its present form requires the Tribunal to issue a genuine invitation to the applicant to appear but does not bear on the procedures to be followed at or after the hearing which results from acceptance of that invitation.
62 In NALQ v Minister for Immigration and Multicultural Affairs (supra), the Court analysed the obligations imposed by s 425, observing, at [30] and [32] (emphasis added):
‘30. The obligation of the Tribunal under s 425 of the Migration Act is to issue an invitation to the applicant for review to attend a hearing. That invitation must be real and meaningful and not just an empty gesture – Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 198 ALR 293 at [33]; Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR at 188 [31]. ......
......
32. In his judgment in NAHF Hely J found for the appellants on the basis of a want of procedural fairness rather than a breach of the obligation imposed by s 425. As to the latter, he followed the views expressed by Branson J in Minister for Immigration and Multicultural Affairs v Mohammad [2000] FCA 1275; (2000) 101 FCR 434 and approved by Wilcox J in Xiao v Minister for Immigration & Multicultural Affairs [2000] FCA 1472 and by Beaumont J in Sreeram v Minister for Immigration and Multicultural Affairs [2001] FCA 53; (2001) 106 FCR 578. In Mohammad, Branson J said of s 425 and the change in its language (at [43]):
"This change from the substantive requirement of giving the applicant an opportunity to appear before the Tribunal to the procedural requirement of inviting the applicant to appear before the Tribunal suggests an intention in the legislature to remove the statutory requirement which had been construed as requiring the Tribunal to give an applicant a genuine and reasonable opportunity to appear before it, and to replace it with a more formal requirement."
In Mohammad the Tribunal’s invitation had been returned unclaimed. In Xiao the applicant’s request for an adjournment was not received by the Tribunal. Wilcox J in a passage in his judgment in Xiao, which was quoted with evident approval by Hely J, said (at [37]):
"[The Tribunal] issued an invitation that complied with the requirements of s425A. That invitation remained open. Notwithstanding my finding that [the migration agent] sent the fax requesting a postponement, it cannot be said that the Tribunal] was wrong in finding that [the applicant] did not appear at the hearing. If, as I believe, s425 imposes on the Tribunal only an obligation to issue an invitation, without any continuing obligation in relation to a reasonable opportunity to appear, that is the end of the matter; at least so far as this Court is concerned."’
63 In the present case the applicant was invited to attend a hearing before the Tribunal on 11 February 2004 by a letter received on 15 January 2004. The applicant attended the hearing on that date, accompanied by a migration agent. The hearing lasted for just under two hours. The critical issue was the applicant’s nationality. The Tribunal asked the applicant a number of questions which went to that issue and the applicant was given an opportunity to give evidence and present argument in relation to his application. The Tribunal subsequently wrote to the applicant on 13 February 2004, pursuant to s 424A of the Act, putting further matters to him for comment. On 5 March 2004, the applicant’s migration agent made submissions in response to the Tribunal’s letter of 13 February 2004. On 2 April 2004, the Tribunal sent a further letter to the applicant pursuant to s 424A. The applicant’s migration agent made submissions in response to that letter on 13 April 2004.
64 In Win v Minister for Immigration and Multicultural Affairs (supra), a Full Court held that the Tribunal is not under an obligation to offer a second hearing to an applicant in circumstances where further information has come into existence after a first hearing. There, a "dob-in" letter had been sent to the Tribunal which invited the applicant to comment on it and he did so. In considering the operation of s 425 in relation to s 424A, the Court held that the Tribunal did not have to hold a second hearing when the other provisions in s 424 permitted it to obtain further comments from the applicant by telephone, at an interview, or in writing. The nature of the "dob-in" letter did not raise any issues that had not been canvassed at the hearing.
65 In the present case, the applicant submitted that the letters pursuant to s 424A raised further "critical" and "substantial" issues and that the Tribunal had been obliged to hear the applicant in relation to those issues. The information sought in the s 424A letters related to the critical issue which had been addressed at the hearing – the applicant’s nationality. In my view, s 425 was complied with in the present case in that an invitation to appear "to give evidence and present arguments relating to the issues arising in relation to the decision under review" was issued and the applicant attended the hearing and gave evidence. The Tribunal complied with its obligations in relation to s 424A. It was under no duty to give the applicant an opportunity to appear at another hearing to comment orally on the issues referred to in the s 424A letters.
(ii) Did the Tribunal accord the applicant procedural fairness?
(a) Failure to provide a copy of the third language analysis report or the text of all three reports
66 In relation to the three language analysis reports, the Tribunal observed, at p 20 of its decision:
‘With regard to language analysis reports, it was submitted that the widely divergent results produced by two tests of the applicant’s language demonstrated the inherent unreliability of such tests, an issue which had also been raised by linguistic experts. It was submitted that the language analysis should be considered, at best inconclusive. Alternatively, greater weight should be attached to the test that "unequivocally" decided that the applicant originated from Ghazni than to the test that concluded with "considerable certainty" that he originated from Pakistan’
And,
at p 39:
‘There are a number of potentially relevant documents on the Department’s files to which the Tribunal has attached no or limited weight, as set out below. As set out above, three analyses of the applicant’s language have been undertaken. Significantly, the first of these concluded with "considerable certainty" that the dialect/language variant spoken by the applicant could be said to originate from the Quetta region of Pakistan while the second concluded that "the asylum seeker unequivocally comes from Ghazni in Afghanistan". The third also concluded that the applicant’s dialect originated from Quetta in Afghanistan. The marked divergence in these opinions reflects what the Tribunal considers to be the inherent unreliability of these reports. The Tribunal accepts the suggestion that the language analysis should be considered inconclusive and attaches no weight to any of the language analysis reports.’
67 The first of the linguistic analysis reports on the applicant was dated 7 March 2000 and was prepared by the Eqvator Institute in Stockholm. It concluded, after observations made "in conjunction with a study of the tape/document submitted for analysis", that the applicant might "with considerable certainty" be said to come from the Quetta region of Pakistan.
68 It appears that a copy of that report was furnished by the Department of Immigration and Multicultural and Indigenous Affairs to the applicant because, on 3 February 2000, he wrote to the Departmental Case Officer contending, amongst other things, that:
‘I don’t know what type of analysis has been done by Eqvator, but I am a Hazara Shia and do belong to Afghanistan and we use Dari Hazaragi language in Afghanistan. I don’t accept this claim that this particular language spoken outside Afghanistan.’
69 The second linguistic analysis report was dated 17 August 2000 and the author concluded that, based on his analysis, he was able "unequivocally" to "place the asylum seeker within the speech and cultural community of Afghanistan." And that he "unequivocally comes from Ghazui in Afghanistan." It was further noted in this second report that the analyst was from Afghanistan. I gather that a copy of that report was furnished to the applicant or his migration agent because submissions were directed to it as noted by the Tribunal in the first of the extracts from its reasons quoted at [65] above.
70 The third linguistic analysis report was dated 2 October 2001 and was headed "Confidential Language assessment of Australian accredited interpreter from Afghanistan in the Dari language of interview tapes for YUL 059" (a Departmental acronym for the applicant). After analysis of two tapes one of which was described as being of a "very short interview", this third report concluded:
‘Although the applicant used Dari/Hazaragi words and expressions in the course of his interview, on the other hand he used a lot of Urdu words and pronounced some words with a Pakistani accent which is common in Hazaragi dialect spoken in Quetta-Pakistan and also from the choice of words it can be concluded that the dialect of the applicant originated from Quetta-Pakistan, the mother tongue is Dari.’
71 Complaint has been made on behalf of the applicant that neither he nor his migration agent was ever supplied with a copy of the third, Departmental, linguistic analysis report. Nor was access given to the tapes of samples of the applicant’s speech on which any of the three reports had been based.
72 Section 424A of the Act provides;
‘(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.’
73 The applicant conceded that the Tribunal was only under a duty to give particulars of the linguistic analyses under s 424A(1)(a) of the Act and to afford the applicant an opportunity to comment on them if they constituted information that the Tribunal considered "would be the reason, or part of the reason, for affirming the decision that is under review".
74 The Tribunal, in its reasons, expressly stated that it "attached no weight" to any of the language analysis reports. It follows that the information contained in those reports was not considered by the Tribunal to be "part of the reason" for affirming the delegate’s decision, with the consequence that s 424A had no application to that information.
75 However, the applicant contends that, by not bringing to his notice the existence of the third report and by not disclosing to him or his representative the contents of each of the linguistic analysis reports, the Tribunal failed to accord him procedural fairness. In this context it was submitted:
‘Had the applicant and his legal representative been provided with copies of all reports and all particulars of such reports, he could have made informed submissions about the weight to be attributed to such documents.’
76 The applicant submitted that the present case is analogous to WAFV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 240. There, a Full Court held that, in the light of the High Court’s judgment in Plaintiff S157/2002 v Commonwealth of Australia (supra), the failure of the Tribunal to supply the applicant with a copy of the tape recording of the interview on which a linguistic analysis had been based and a copy of the full report amounted to a denial of procedural fairness.
77 The respondent contended that it was not open to the applicant to rely upon an asserted failure to comply with the common law requirements of procedural fairness, because those requirements have been excluded by operation of s 422B of the Act. Sub-section 422B(1) provides that Div 4 of Pt 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". Division 4 includes s 424A and s 425 of the Act.
78 The applicant relies on observations of French J in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 106 to support a contention that s 422B does not entirely displace the common law requirements of procedural fairness. In that case, his Honour pointed out, at [57]:
‘Division 4 may be taken to be exhaustive of those aspects 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 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.’
79 In relation to material adverse to an applicant which had been relied upon by the Tribunal, French J, however, held in WAID v Minister for Immigration and Multicultural and Indigenous Affairs (supra), that, when read with s 422B, s 424A is to be treated as exhaustive of the requirements of procedural fairness going to an applicant’s right to comment on such adverse material known to the Tribunal.
80 In NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (supra), Lindgren J held, in the context of s 357A (which in relation to reviews by the Migration Review Tribunal ("the MRT") corresponds with s 422B), that its effect was to displace the requirements of procedural fairness in favour of the protections found in the Division there under consideration and to make the latter an exhaustive statement of those requirements for the purposes of reviews by the MRT.
81 In Wu v Minister for Immigration and Multicultural and Indigenous Affairs (supra) Hely J considered that s 51A, which provides that subdivision AB of Pt 2 Div 3 "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with," rendered s 57 of the Act (also equivalent to s 424A) an exhaustive statement of the circumstances in which a visa applicant is entitled to be informed of, and to have the opportunity of commenting on, information known to the Minister or his delegate which might be adverse to the visa application. Hely J held that s 57 overrode the requirements of the natural justice hearing rule in this respect.
82 Hely J concluded in Wu, at [23]:
‘The legislature cannot have intended the displacement of the natural justice hearing rule to be confined to cases in which the Minister must provide information pursuant to s 57(2). The legislature cannot have intended that the common law hearing rule continue to apply in circumstances where s 57 did not require the provision of information to an applicant, such as country information (s 57(1)(b)).’
83 For present purposes, in relation to the applicant’s complaint that he was denied access to the third linguistic analysis report in order to reinforce his submissions that the Tribunal should rely on the second report, Wu is authority for the proposition that s 422B, when read in conjunction with s 424A, displaces the requirements of procedural fairness at common law to the extent that information which was not part of the Tribunal’s reason for refusing the visa application is not required to be disclosed to an applicant for comment.
84 For these reasons, I reject the applicant’s submission that the Tribunal’s failure to acquaint the applicant with the third language analysis report and, if it occurred, its failure to provide him with the text of either or both of the earlier reports, amounted to a denial of procedural fairness.
85 By contrast with the facts in WAFV of 2002 (supra) there was in the present case no request on behalf of the applicant for access to the tapes on which either of the two earlier linguistic analysis reports had been based. Nor was the author of either of those reports invited by the Tribunal to respond to any comment or observation made about the report on behalf of the applicant. The present case also differs from WAFV in that the Tribunal, rather than preferring one linguistic analyst over another, expressly disclaimed any reliance at all on the linguistic material. Moreover Carr J, whose reasoning in WAFV on procedural fairness was adopted by the other two members of the Full Court, did not have to consider whether the requirements of procedural fairness had, in the relevant respects, been displaced by the operation on s 424A of the Act by s 422B which did not commence until after the decision of the Tribunal under consideration in WAFV.
(b) Failure to disclose "all other evidence"
86 For the applicant it was also submitted that failure to disclose "other evidence" (ie in response to the request for a formal review of the FOI decision) amounted to a denial of procedural fairness. The Tribunal’s response to the migration agent’s request on 2 April 2004 was that the member "was satisfied that [the representative has] been provided with particulars of any matters that might be adverse to [her] client’s claims and to which weight might be attached". In its decision, the Tribunal noted that the request had been "that any information on which a decision might be based be available for comment". The Tribunal recorded at p 23 of its reasons:
‘The Tribunal notes in this regard that it provided extensive particulars of matters that it considered potentially adverse to the applicant’s claims in its letter of 13 February 2004. It has provided a lengthy period for post-hearing submissions and, in response to requests from the applicant’s adviser, has provided time extensions on a number of occasions.’
87 At the end of its reasons for its decision, the Tribunal noted that:
‘With the exception of the matters specifically referred to in this decision, the Tribunal has placed no weight on any references in the Department’s files to investigations into the circumstances of the applicant or any other person. The Tribunal does not consider that there is any further material in this regard which is both adverse to the applicant’s claims and of any probative value.’
88 The applicant’s contention that, because there may have been material or information on the file that was favourable to his case, the Tribunal was bound to identify it and acquaint him with it, must be rejected for the reasons already explained in relation to the third linguistic analysis report. The common law rules of procedural fairness have now been displaced by s 422B of the Act in respect of the obligation to bring matters to the notice of an applicant.
89 Further, s 420 of the Act provides that the Tribunal is generally free to determine its own procedure and that, in doing so, it should "pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick". Even if common law requirements of procedural fairness had application to the present case, they have never been held, so far as I am aware, to oblige a decision-maker to acquaint a party with every piece of information known to the decision-maker which might be relied on by that party to buttress the arguments in support of his or her case.
(c) Failure to test the applicant’s geographical knowledge
90 The Tribunal observed, at p 39 of its reasons for decision:
‘The Tribunal has found that the applicant’s knowledge and description of matters in Afghanistan was deficient in significant respects. ... The Tribunal considers that such matters as geography are capable of being learnt and, having considered the evidence in its entirety, finds that this explains the applicant’s knowledge in this case.’
91 The applicant contends that the Tribunal, at the very least, was required to put him on notice that there was a suspicion that the geographical knowledge, which he had demonstrated in the past, had been "learnt". However, the Tribunal’s assessment of evidence presented by an applicant does not constitute "information that the Tribunal considers would be the reason, or part of the reason for affirming the decision that is under review" in the sense in which those words are used in s 424A. As French J pointed in WAJR (supra) at [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.’
92 The significance of the applicant’s geographical knowledge was partly that it went to the applicant’s credibility. As is revealed by the passages quoted from the Tribunal’s reasons quoted at [94] and [95] below, several other pieces of evidence were considered by the Tribunal in assessing his credibility. I accept the Minister’s submission that the applicant’s credibility is ultimately a matter for the Tribunal. (Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at [31] – [32].)
(iii) Did the Tribunal fail to take into account relevant matters?
(a) The map drawn by the applicant at the interview of December 2001
93 Counsel for the applicant contended that the Tribunal’s failure to refer to the map drawn by the applicant at the December 2001 interview was a breach of its duty to consider relevant material and that it amounted to a jurisdictional error.
94 The Tribunal based its decision on a number of factors relevant to the applicant’s identity and nationality. They were set out as follows at p 38 of its reasons for decision:
• ‘the applicant’s failure, when given an opportunity, to deny in his response of 25 September 2002 that the person depicted in the NIC application was him;
• the year of birth given by the applicant at the interview of 19 December 2001, which reflected the year of birth in Muzaffar Ali’s NIC application;
• the vague nature of the applicant’s evidence as to when he went into hiding from the Taliban;
• the applicant’s lack of familiarity with the taskera, an important Afghan identity document; and
• evidence from the Principal Migration Officer’s report of his visit to the Court Building at Shahrah-e-Adalat to the effect that several officers at the District Court recognised the applicant (from a photograph taken in immigration detention) as Muzaffar Ali.’
95 The Tribunal’s reasoning in respect of the applicant’s geographical knowledge was expressed in these terms at p 34:
‘The Tribunal notes that the applicant has demonstrated some knowledge of Afghanistan and in particular of the area from which he claims to have come. Matters that he has succeeded in describing have included the location of his village, the location and size of the village bazaar, the surrounding geography and the nature of the family farm. He was also able to describe towns that he claimed to have passed through in fleeing Afghanistan. The Tribunal has considered these matters carefully and has listened to recordings of interviews conducted with the applicant on 1 December 1999 and 19 December 2001. While the applicant has demonstrated considerable knowledge of the matters referred to above, the Tribunal retains its concern with regard to the applicant’s inability to provide a clear picture of his own experience of a highly significant event, namely his flight into hiding in the face of the Taliban’s arrival in his village. As noted below, the applicant also demonstrated a lack of familiarity with the taskera, a key Afghan identity document. When all these factors are weighed together, the Tribunal considers the applicant’s knowledge and ability to describe his circumstances in Afghanistan in fact falls short of what would be expected of someone who had resided there for twenty years as claimed.’
96 And at p 39, after finding that the applicant is not a citizen of Afghanistan, the Tribunal in a passage, part of which has already been quoted, stated (emphasis added):
‘As noted above, the Tribunal has considered aspects of the applicant’s evidence which might have had the potential to weigh against such a finding, in particular the applicant’s knowledge of parts of Jaghori district and the identity documents provided by him. For the reasons given above, these are not matters which are sufficient to counter the factors referred to above. The Tribunal has found that the applicant’s knowledge and description of matters in Afghanistan was deficient in significant respects. In particular, he failed to demonstrate familiarity with the taskera and was unable to provide clear and unambiguous evidence as to when he went into hiding from the Taliban. The Tribunal has not accepted the taskera provided by the applicant as genuine. The Tribunal considers that such matters as geography are capable of being learnt and, having considered the evidence in its entirety, finds that this explains the applicant’s knowledge in this case.’
97 It is evident from that passage that its denial of any weight to the applicant’s geographical knowledge was only one of the reasons why the Tribunal found that he was not a citizen of Afghanistan as claimed but a Pakistani citizen, Muzaffar Ali. It was sufficient for the Tribunal to indicate that it had not been persuaded by, or had attached little or no weight to, the applicant’s evidence of his geographical knowledge. It was not obliged to "give a line-by-line refutation of that evidence" or to give "the sub-set of reasons" why it rejected it; see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at 416 - 417.
98 In relation to the applicant’s further submissions regarding the map, I do not consider that asking him to draw a map of his region amounted to a test of credibility. The facts of the present case differ from the circumstances in Kanarfi v Minister for Immigration and Multicultural Affairs (supra) upon which the applicant seeks to rely for this part of his argument.
99 In Kanarfi, the Tribunal set a credibility test to assist in determining whether the unlikely story put forth by the applicant and his companion could be accepted. The test involved requiring each of them separately to draw a diagram of the ship’s cabin and the space above the false ceiling in which they had been smuggled to Australia. Lehane J held that, once the Tribunal had decided that the particular test of credibility would assist it in assessing the veracity of what it had been told and had requested the applicant and his companion to undertake it, the Tribunal, by failing to persist with the test to its completion and by failing to give it any consideration (even any mention) in its reasons, had failed to observe procedures required by s 420 in that the procedures which the Tribunal had adopted did not provide a mechanism for review that was fair and just or that it had not, in a procedural sense, acted according to substantial justice (Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300).
100 In this case, the Tribunal did not request that the applicant draw a map nor did it fail to complete a process of testing the credibility of the applicant which it had itself instituted. The map was simply a piece of evidence before the Tribunal to be weighed as the Tribunal considered appropriate. Further, as the respondent submitted, the decision in Karnafi did not turn on a failure to take into account a relevant matter but on a view of s 420 of the Act which the High Court has since rejected in Minister for Immigration and Multicultural Affairs v Eshetu (supra) at [49], [75], [107]-[109], [158], [179].
101 For these reasons, I do not regard the fact that the Tribunal did not advert in its reasons to the applicant’s drawing, at an interview in December 2001, of a map of the region of Afghanistan from which he claimed to come, signified a failure to take account of a relevant matter.
(b) The circumstances of the interview of December 2001
102 The applicant contended that the Tribunal was required to take into account the circumstances of the interview of December 2001, in particular, the fact that the applicant had been awakened very early, that a number of officers had attended his home and seized property and that he had been taken away for questioning.
103 The applicant noted that the Tribunal, in its decision, had placed considerable weight on the year of birth of 1976 given by the applicant at the interview when, in fact, the applicant’s claimed date of birth was 1979. Counsel for the respondent, on the other hand, submitted that the map and the circumstances of the interview were "clearly evidence that goes into the mix in the tribunal making its decision".
104 In relation to the circumstances of the interview, the Tribunal at p 33 of its reasons made these observations (emphasis added):
‘The Tribunal also attaches weight to evidence given by the applicant in relation to his date of birth. At an interview with a Departmental officer on 19 December 2001, the applicant gave 1976 as his date of birth, mirroring the birth date in the NIC application and contradicting earlier written evidence given by him. The Tribunal has listened carefully to the transcript of the interview. The applicant was initially asked through a Farsi interpreter to state his full name and date of birth. When the applicant answered with his name only, the delegate then prompted the applicant in English to give his date of birth. Without any intervention from the interpreter, the applicant then gave his date of birth, apparently in his mother tongue. He gave his date of birth as 1976. It was apparent that the applicant understood that he was being asked for his date of birth and that he was able to respond in his mother tongue with the aid of an interpreter.
The Tribunal does not accept that the applicant would have been so unfamiliar with his date of birth as to be unable to give it accurately because he had recently been awoken or was in a stressful situation. Even though he claimed to have rarely used it, he had indicated that he had a taskera and his date of birth must surely have been known to him and his family. Even on the applicant’s own evidence, it is apparent that the applicant had not simply been "allocated" an arbitrary date of birth following his arrival in Australia. The applicant did not hesitate in his response, responding with such rapidity that the interpreter was unable to intervene. He was free to respond in whatever manner he chose and did in fact respond in his mother tongue using the western calendar. Having considered all the circumstances, the Tribunal considers that the applicant’s response provides a clear indication that the applicant’s year of birth was in fact 1976, the same year in which Muzaffar Ali was born.’
105 It is apparent from that passage that the Tribunal considered the circumstances of the interview in determining the credibility of the applicant’s story but that it rejected the contention that they provided a satisfactory explanation for the inconsistency in the applicant’s statements regarding his date of birth. The applicant’s contention is, in realty, a complaint about the merits of the Tribunal’s decision maintaining that it ought to have reached a different result after giving due weight to the circumstances of the interview. Whether or not the circumstances of the interview amounted to a relevant matter in the sense discussed, for example, in Plaintiff S157 (supra) need not be addressed as I am unable to uphold the contention that the Tribunal failed, in making its decision, to take account of the circumstances of the interview.
106 Even if, contrary to the conclusions reached at [101] and [104] above, the Tribunal’s failure to mention in its reasons the drawing of the map or the circumstances of the interview was an oversight rather than an implied finding that neither matter was sufficiently significant to require noting in its reasons, the oversight arose in the process of fact-finding and did not signify error of law. Jurisdictional error can only be imputed to a Tribunal on the basis of an alleged failure to take account of a relevant consideration if the failure evinces a misunderstanding or misapplication of the law which is to be ascertained, at least primarily, by reference to the Act properly construed. It will not be found that such an error has occurred unless the court is able to find in the subject-matter, scope and purpose of the Act, an implication that the decision-maker was bound to take the suggested consideration into account; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (supra) at 39-40.
107 As McHugh, Gummow and Hayne JJ, after making observations to similar effect in Yusuf v Minister for Immigration and Multicultural Affairs (supra) [73], went on to say, at [74] (emphasis added):
‘The grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.’
108 Accordingly, neither limb of this third ground of attack on the Tribunal’s decision has been sustained.
(iv) Was the Tribunal’s decision vitiated by apprehended or actual bias?
109 It will be recalled that Counsel for the applicant first contended under this head that the Tribunal’s apprehended or ostensible bias had manifested itself in its failure, discussed at [58] to [65] of these reasons, to give the applicant an opportunity to appear and contribute orally to the resolution of the issues which had arisen after the hearing on 11 February 2004 and its failure to accord the applicant procedural fairness. However, for reasons already explained, I have found that the Tribunal had discharged its obligation to give the applicant an opportunity to appear and give evidence and present arguments relating to issues which arose in relation to the decision under review. I have also found that there was no denial of procedural fairness at common law insofar as the Tribunal had been required to accord it to the applicant independently of its obligations under Div 4 of Pt 7 of the Act. It follows that those unfounded allegations of procedural error cannot be called in aid to sustain a claim of actual or ostensible bias.
110 Counsel for the applicant also fastened, in support of the charge of bias, on the Tribunal’s finding, quoted at [96] above, that the applicant’s knowledge and description of matters in Afghanistan had been "deficient in significant respects". As well, it was submitted, the Tribunal had relied on responses given by the applicant when cancellation by the Minister of the applicant’s temporary protection visa noted at [3] and [11] of these reasons had been under consideration.
111 The test to be applied in determining whether apprehended bias should be imputed to an administrative decision-maker like the Tribunal has been reviewed in these terms by Gleeson CJ, Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at 434 [27]- [28]:
‘The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the tribunal, proceedings are held in private.
Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.’
112 Their Honours went on in the following paragraphs to indicate that the non-curial nature of the decision-maker and the different character of the proceedings might require a different application of the test of objective possibility. Specific reference was made to the need for a person conducting inquisitorial proceedings to test, often vigorously, the evidence presented and to confront a party plainly with matters which reflect adversely on the credibility of his or her account. In my view, the passages in the Tribunal’s reasons to which attention has been drawn under this head would not suggest to a fair-minded lay observer that the Tribunal had gone beyond what might reasonably be expected of it in the performance of its inquisitorial function. As a Full Court of this Court recently observed in SBBA v Minister for Immigration and Multicultural and Indigenous Affairs (supra) at [15]:
‘The Tribunal is entitled to assess the evidence and attach such weight to that evidence as it regards as appropriate. Even were the Tribunal to disbelieve every element of the appellant’s claim (and it did not) it would not be sufficient to establish bias. Bias or lack of good faith requires much more. It requires that the decision maker have prejudged the matter, and that he or she has a mind closed to any argument in support of a contrary conclusion; Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 134. Such allegations must not be lightly made; Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 36 per Brennan J. They also must be firmly and distinctly made and clearly proven; Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 a 530 per Gleeson CJ and Gummow J. In this case the Tribunal carefully examined the claims made by the appellant and explained why it did not accept those claims. Whether this Court or the primary judge would have come to the same conclusion is not relevant. The reasons for its views given by the Tribunal are more than sufficient to rebut a claim of bias or lack of good faith.’
113 In the present case, the Tribunal’s reasons were temperately expressed and gave detailed explanations at considerable length for the conclusions reached. Objectively examined, they provide no support for an imputation of bias or lack of good faith.
Conclusion
114 For the reasons which I have endeavoured to explain, I have been unable to uphold any of the four grounds on which the applicant has attacked the Tribunal’s refusal to grant him a substantive protection visa. Accordingly, the proceeding numbered V625 of 2004 must be dismissed with costs. The resultant validity of the Tribunal’s decision means that the applicant’s application for a permanent protection visa was "finally determined", as stipulated in s 5(9) of the Act, on 22 April 2004. On that date, the applicant’s temporary visa ceased to be in effect by force of reg 785.511 of the Regulations which provides;
‘785.5 When visa is in effect
785.511 Temporary visa permitting the holder to remain in, but not re-enter, Australia until:
(a) for the holder of a Subclass 785 (Temporary Protection) (Class XA) visa:
(i) if the holder applies for a Protection (Class XA) visa after the temporary visa is granted and within 36 months after the grant -- the day when the application is finally determined or withdrawn; and
(ii) in any other case -- the end of the 36 months; or
(b) for the holder of a Subclass 785 (Temporary Protection) (Class XC)
visa -- the day when the application mentioned in paragraph
2.08F (1) (d) is finally determined or withdrawn.’
As
a result the application in proceedings V543 of 2004 for a constitutional writ
or other relief in respect of the Minister’s
decision to cancel the
applicant’s temporary protection visa has been rendered moot. For that
reason and, in the exercise
of the Court’s discretion in entertaining
applications of that kind, I have concluded that those earlier proceedings
should
also be dismissed with costs.
Associate:
Dated: 16 February 2005
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Counsel for the Applicant:
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Ms N Karapangiotidis (Pro Bono)
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Counsel for the Respondent:
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Dr S Donaghue
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Solicitor for the Respondent:
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Australian Government Solicitor
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Date of Hearing:
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10 August 2004
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Date of Judgment:
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16 February 2005
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2005/86.html