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Federal Court of Australia |
Last Updated: 8 February 2007
FEDERAL COURT OF AUSTRALIA
WAMB v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 66
MIGRATION – refugees – appeal – application for
review of refusal to grant protection visa – appellant sought
to submit
material to refugee review tribunal in a language other than English –
tribunal declined to receive material or to
receive translation from appellant
– appellant provided oral description of content to tribunal –
tribunal relying on
its understanding of that oral description – whether
tribunal in error of law in considering the appellant’s description
in all
the circumstances – whether procedural fairness
denied
Migration Act 1958 (Cth) ss 420, 422B,
424
MZWKU v Minister for Immigration and Multicultural
Affairs [2006] FCA 996
NAIS v Minister for Immigration and
Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 223 ALR 171
NASB v
Minister for Immigration and Multicultural and Indigenous Affairs [2004]
FCAFC 24
NBIO v Minister for Immigration and Multicultural Affairs
[2006] FCA 1300
Re Minister for Immigration and Multicultural
Affairs, Ex parte Applicant S20/2002 (2003) 198 ALR 59
SZBPQ v
Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 568
Uddin v Minister for Immigration and Multicultural Affairs
[2001] FCA 90
VWFP and VWFO v Minister for Immigration and
Multicultural and Indigenous Affairs [2006] FCA 231
WAIJ v Minister
for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD
568
X v Minister for Immigration and Multicultural Affairs [2002] FCA 56; (2002) 116
FCR 319
WAMB v MINISTER FOR
IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW
TRIBUNAL
WAD 135 OF 2006
NICHOLSON J
7 FEBRUARY 2007
PERTH
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AND:
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THE COURT ORDERS THAT:
1. Leave be refused to the appellant to file the affidavit of Mr Armanious sworn on 10 November 2006.
2. The appeal be dismissed.
3. The appellant pay the first respondent’s costs of the appeal.
Note: Settlement and entry of
orders is dealt with in Order 36 of the Federal Court Rules.
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WESTERN AUSTRALIA DISTRICT REGISTRY
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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AND:
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DATE:
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PLACE:
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REASONS FOR JUDGMENT
1 This is an appeal from the judgment of a Federal Magistrate (Walters FM) given on 28 April 2006 dismissing an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) made on 7 September 2005. In that decision the Tribunal affirmed the decision of a delegate of the first respondent not to grant to the applicant a protection (class XA) visa.
BACKGROUND CIRCUMSTANCES
2 The appellant is a citizen of Egypt. He arrived in Australia on 18 September 2004 as the holder of a multiple travel student visa permitting him to stay in Australia until 21 February 2005. On 9 February 2005 the appellant lodged an application for a protection visa, claiming to fear persecution on the grounds of religion because he was a Coptic Orthodox Christian. The appellant claimed that he had suffered discrimination at university, in his employment, had been threatened whilst performing national service, and that more generally he feared that he may be harmed by Muslim extremists. 3 On 23 February 2005 a delegate of the first respondent refused to grant a protection visa to the appellant. On 2 March 2005 the appellant applied to the second respondent for review of that decision.
TRIBUNAL DECISION
4 A hearing was undertaken by the Tribunal on 5 September 2005, at which time the appellant gave oral evidence in support of his application as renewed. On 7 September 2005 the Tribunal affirmed the delegate’s decision not to grant a protection visa, with formal reasons for decision being handed down on 29 September 2005. 5 In its reasons in referring to the claims on evidence before it, the Tribunal stated, inter alia:
‘The [appellant] said that he had downloaded from the internet secret recordings of telephone calls in Arabic made by criminals who are overheard plotting such things as the kidnapping of a 13 year old Coptic girl.’
This is the only reference in the reasons of the Tribunal to this piece of evidence. It is in relation to the Tribunal’s treatment of that evidence which the appellant’s case on appeal is primarily directed.
6 The Tribunal examined what it described as ‘independent evidence’ in the character of country reports and articles which showed: (1) Egypt was not, as claimed by the appellant, in the grip of widespread anti-Copt violence, particularly directed at churches; (2) the Egyptian authorities were engaged in the suppression of Muslim radicalism and, were such violence to occur, would promptly offer Copts the protection they might require; and (3) the Egyptian government was taking active steps to integrate the seven million Copts into national life and the nation was not gripped by a deteriorating situation as claimed by the appellant. 7 The Tribunal then turned to its findings and reasons. It was prepared to accept that the appellant may have suffered discrimination, as he had claimed, at university and in relation to his employment opportunities. The Tribunal found, however, that any discrimination the appellant suffered in education or employment was not to a degree such that it would constitute serious harm, given that the appellant was able to graduate and also find employment. The Tribunal did not accept that there was a real chance that the appellant would face unemployment for reasons of his religion. 8 The Tribunal also accepted that the appellant was attacked by a Muslim while in the army but found that, as the appellant had completed his military service, there was no real chance that he could suffer the threat of such a serious harm were he to return to Egypt. 9 The Tribunal then turned to the effect of the recordings of telephone calls relied upon by the appellant and, in a paragraph central to the appellant’s case (the core paragraph), stated as follows:
‘The Tribunal finds his claims of general harassment of Copts in Egypt, including his belief in the genuineness of secretly recorded telephone conversations implicating criminals in actions against Copts, including plans for the widespread abduction of Coptic girls in order to convert them, and of the likelihood that he himself might be abducted in order to force him to convert to Islam, to be so fantastic as to be unbelievable. The Tribunal finds that tales such as this constitute "urban myths" which have no basis in reality and which are not supported by any credible media or other reports. The Tribunal is convinced that were such events to be occurring, then they would be widely reported in credible sources and that the Egyptian government would take immediate steps to deal with such crimes.’
10 The Tribunal then again returned to the effect of the independent evidence and found as follows:
‘Indeed, the [appellant’s] claim that Islamic extremists could operate openly and with the support of, and indeed involving the authorities and the police, is also contradicted by the independent evidence which reports that Islamic militants have in fact been actively suppressed by the government and have been rejecting violence.
The independent evidence cited above shows there has been continuing vigilance by the Egyptian authorities against violent Islamic militants. In the light of this, the Tribunal finds that the state provides adequate protection to Coptic Christians. In the light of this, the Tribunal finds there is no real chance that [the appellant] might be harmed by the actions of Islamic militants aimed at Christians such as the [appellant].
The reality in Egypt, as overwhelmingly indicated by the above independent evidence, is that the government has taken steps to curb Islamic militancy and to accord Egyptian Copts their rightful place in Egyptian society. The Tribunal acknowledges that there is evidence of some continuing low level discrimination and occasional societal prejudice. However, the Tribunal finds that any such harm an Egyptian Copt, such as the [appellant], might suffer in the foreseeable future, is not so serious as to constitute persecution.
The Tribunal notes that indeed churches have faced problems with building permits in the past, but the evidence shows that there are also building restrictions on mosques. In any event, this appears, according to the independent evidence cited above, to again be more of a problem in the past and one that the Egyptian government appears to be trying to address. In any case, it is hardly a difficulty that might be faced in the life of the [appellant].’
11 The Tribunal was therefore not satisfied that there was a real chance the appellant might face persecution in the foreseeable future for his religion or for any other reason within the meaning of the Convention Relating to the Status of Refugees, 1951 and the Protocol Relating to the Status of Refugees, 1967 (together the Convention) so that his fear of persecution was not well-founded, with the consequence that he did not qualify for a protection visa.
MAGISTRATE’S REASONS
12 The appellant was not represented at the hearing before the Tribunal. That remained the position before the Federal Magistrate. 13 The Federal Magistrate was required to consider five grounds of review. The first two, those relating to military service and the telephone conversations (described as information contained on a CD provided by the appellant to the Tribunal) are relevant to this appeal. 14 In relation to the military service ground the appellant told the Federal Magistrate during the course of the hearing before him that he had in fact completed his compulsory military service but was subject to call-up for reserve duty until March 2013. His Honour held that the tender of a military certificate and call-up letter as additional documents did not comprise fresh evidence and, in any event, the certificate was available to the appellant before he applied for a protection visa. Even if they were fresh evidence he accepted that they were irrelevant to any ground on which certiorari could be granted and were therefore inadmissible. Accordingly the military ground did not succeed. 15 In relation to the ground relating to ‘information on CD’ the Federal Magistrate embarked on examination of the references made in the transcript at the hearing before the Tribunal to the question of the telephone conversations. The appellant’s written outline of submissions on this appeal summarises each of these as follows:
‘14. The Tribunal’s response to these requests during the hearing may generally be summarised as follows:
(a) on one occasion, the member (without listening to the CD, reading a translation of the information or considering its source) appears to conclude that the information does not come from an independent source;
(b) on another occasion, the member indicates that he won’t be able to rely on the evidence without a translation, and that he is not prepared to wait for a translation as the information is not considered ‘independent evidence’;
(c) on another occasion, the member indicates that he is not prepared to consider the recorded phone calls or the organisation from which they were sourced as, again, it was apparently not considered by the member to be ‘independent information’; and
(d) finally, the Tribunal indicates that it does not wish to receive the CD into evidence, but that it will consider what the Appellant has said it contains.’
In the exchanges before the Tribunal the appellant offered to tender the CD but the Tribunal declined to receive it because it had written down what he said it contained and would note that and consider it. Examination of the transcript (the extracts of which are set out in his Honour’s reasons) also shows that the appellant had responded on two occasions with ‘okay’ in response to an assertion from the Tribunal member that the Tribunal would not consider a translation and would rely on his description of the contents of the CD.
16 The Court recorded that the appellant had provided the CD of the telephone conversations to the Court with his submissions and that it contained a number of audio files in Arabic. In his reasons for not upholding the appellant’s contentions on the CD information, his Honour relied on the appellant’s response before the Tribunal that it was ‘ok’ for the Tribunal member to take account of the appellant’s description of what was contained on the CD and that he would not listen to or arrange for the translation of its contents. 17 Having had regard to the Tribunal’s reasoning as set out above, his Honour concluded that the ground of review could not succeed. Further, he accepted submissions for the respondent before him that the Tribunal had been under no obligation to seek information from sources available to it. Further, that procedural fairness does not require the Tribunal to take upon itself the role of obtaining further information for the purpose of assisting the appellant to make his case: Lee and Moore JJ in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 568 at [19]-[22]. He said that an analysis of the transcript revealed that the Tribunal had not ignored or refused to consider the material on the CD in any relevant sense. The Tribunal had noted what the appellant said it contained and explained it would consider the appellant’s evidence in that regard as substantive evidence in support of his case. Further, his Honour considered it was clear from the extracts from the Tribunal’s reasons that such a course of action was in fact adopted and the Tribunal had taken it into account. The appellant before his Honour, had specifically elected not to refer in his submissions before the Court to the contents of the CD as supporting his case in any material or tangible respect. His Honour therefore found that the Tribunal did not dismiss the CD from its consideration and that its refusal to use the CD in the manner urged upon it by the appellant was justified or explained as envisaged in the reasoning in WAIJ 80 ALD at [53].
AFFIDAVIT OF FRESH EVIDENCE
18 On the hearing of the appeal (the appellant now being represented) he sought to tender an affidavit directed to explaining the contents of the CD more fully. In the affidavit he states that it contains sound files which he had downloaded from a website of the US Copts Association relating to Copts. He attaches to the affidavit a copy of the background of the US Copts Association, recent media involvement of that Association and the background of its founder. In [7] of the proposed affidavit he sets out a brief explanation of each sound file, being eight in number. The description of each of the sound files given in that paragraph is as follows:
‘(a) The first sound file is a news item which describes an alleged attack on a Coptic church in El-Marg, Egypt by a Muslim extremist (and refers to other attacks as well).
(b) The second sound file is an alleged secret recording of a telephone conversation between a representative of the US Copts Association (pretending to be from an organisation for helping orphans) and an Egyptian Muslim discussing the kidnapping of a Coptic Christian girl.
(c) The third sound file is a telephone interview from a representative of the US Copts Association and a Coptic priest in Egypt discussing an alleged attack on a Coptic church in Tilwana, Egypt, and the alleged killing of a Coptic Christian woman.
(d) The fourth sound file is another telephone interview from a representative of the US Copts Association with a Coptic Christian priest concerning an alleged attack on a church in Shobra, Egypt.
(e) The fifth sound file is another telephone interview between a representative of the US Copts Association and a young man by the name of Fady Nabil Kolta concerning the alleged kidnapping of that young man in late 2004 and attempts to force him to convert to Islam.
(f) The sixth sound file is another telephone interview between a representative of the US Copts Association and an Egyptian Coptic Christian concerning the alleged abduction of a Coptic Christian woman known as Ms Hannan.
(g) The seventh sound file is a telephone interview between a representative of the US Copts Association and the uncle and mother of a young woman known as Ms Heba concerning her alleged abduction, rape and forced conversion to Islam.
(h) The eighth sound file is a telephone interview between a representative of the US Copts Association and a Mr Rafat concerning allegations with respect to Mr Rafat’s daughter Wafa being kidnapped also by Islamic extremists.’
Only the second of these is described as a ‘secret’ recording. Each sound file relates in one way or another to alleged attacks on Coptic interests in Egypt by Muslims.
19 The respondents oppose the admission of the affidavit, although not taking any real exception to its non-compliance with O 52 r 36 of the Federal Court Rules. 20 The tests governing the admissibility of evidence at this stage in the appellate process have been addressed in Uddin v Minister for Immigration and Multicultural Affairs [2001] FCA 90 and NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24. In NASB at [42] the Full Court (Beaumont, Lindgren and Tamberlin JJ) said:
‘In order for this Court to receive further evidence, generally speaking (cf : Cottrell v Wilcox [2002] FCAFC 53; [2002] FCA 232 at [18]–[21], citing CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172 at 184-186 per Gaudron J, 199-201 per McHugh, Gummow and Callinan JJ and 230-238 per Kirby J) it will be found that two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, ‘probability’, and at the highest, ‘certainty’, of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 (‘of such importance as very probably to influence the decision’ and ‘of such weight as, if believed, would probably have an important influence on the result’); Orr v Holmes at 636 (‘high degree of probability that the admission of the new evidence would result in a different verdict’); Florance v Andrew (1985) 58 ALR 377 at 381 (‘such a different complexion on the case that a reversal of the former result ought certainly to ensue’); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-368 ((as agreed by the parties) ‘almost certain that, ... , an opposite result would have been reached by the primary judge’).’
21 No explanation has been given as to why the evidence was not tendered at first instance and could not have been obtained by exercise of reasonable diligence. However, given that at that stage the appellant was not represented there is a prima facie inference open, not rebutted in these circumstances, that the explanation for lack of tender was the absence of professional qualification in the appellant. 22 The more difficult question is whether the evidence could have had any effect on the outcome of the reasoning of the Tribunal. That is, whether there was a probability, possibly a strong probability, of a different result having been reached. 23 There are two matters that concern me in that respect. The description given by the Tribunal of the effect of the evidence to which the appellant was referring is inadequate in two respects. The first is that it describes the recordings of telephone calls as all having been ‘secret’, whereas the affidavit makes apparent that that adjective is only relevant to one of them. Secondly, the description given by the Tribunal of the character of the evidence is that the calls were all made by criminals who are overheard plotting such things as the kidnapping of a 13 year old Coptic girl. This inadequacy of description of the contents of the CD is also followed through into the core paragraph of the Tribunal’s reasoning quoted above, where the Tribunal continues the notion that all of the recorded telephone conversations are ‘secret’ and that they refer to ‘widespread abduction of Coptic girls’. As will be seen from the description in the proposed affidavit of eight sound files, only the second satisfies that description of ‘secret’. It is not apparent from the evidence given in the proposed affidavit that the kidnapping of girls is representative of the remainder of them. Rather, they are better characterised as involving alleged attacks on Coptic Christians by Muslims. Further, the affidavit provides information relating to the US Copts Association as the source of the information on the CD. 24 The respondents submit that when regard is had to the reasoning of the Tribunal, particularly in the core paragraph, it is apparent that any more evidence going to the depth of the material to which the appellant was referring and its source would not with any sensible degree of probability lead to a different result. But for the Tribunal’s inadequate description of what is in the recordings, I would accept that view. However, I believe that because of the inadequacies in the Tribunal’s description (and therefore by inference perhaps its understanding of the effect of the evidence), I should hold the issue of the admission of the affidavit over until I have moved to consideration of the Tribunal’s reasoning.
GROUND OF APPEAL RELATING TO INFORMATION ON CD
First aspect: failure to consider relevant evidence
25 In oral argument the appellant’s case was principally founded on the reasoning of the Full Court in X v Minister for Immigration and Multicultural Affairs [2002] FCA 56; (2002) 116 FCR 319. I propose to consider that first before moving to the other expressions of the ground. 26 X 116 FCR was a case where the Tribunal held that because a diary relied on by the appellant in that case had not been translated, it could not take its contents into account. In allowing the appeal and setting aside the Tribunal’s decision, Gray J said at [30]-[31]:
‘It is one thing for the Tribunal to request that documents be translated into English. It is quite another to refuse to take into account a document that is asserted to be relevant to a specific issue on the ground that it has not been so translated.
...
What course the Tribunal might take in a particular case will depend on the circumstances of the case. In the present case, it did not have the option of refusing to take into account the diary because it was not in English."
27 Moore J said at [49] and [52]:
‘the Tribunal did receive the contentious diary and had regard to it but only in a limited and qualified way. That is because the Tribunal did not seek to ascertain what the diary said.
...
‘In effectively rejecting the diary as material supportive of the appellant's case by declining to consider its contents without taking steps that might give meaning (to the Tribunal) to its contents, the Tribunal erred in the way discussed by Gray J. The consequence of the approach the Tribunal adopted was that it ignored relevant material.’
28 O’Loughlin J, who dissented in the result, characterised the conduct of the Tribunal as ‘the refusal ... to have regard to the contents of the diary (and this, effectively, means the refusal ... to arrange for an interpretation of the contents of the diary)’: at [41]. 29 These passages in the reasoning in X 116 FCR were considered and distinguished by Sundberg J in MZWKU v Minister for Immigration and Multicultural Affairs [2006] FCA 996. In distinguishing X 116 FCR, his Honour said at [19]:
‘In the present case the Tribunal did not refuse to take the letters into account. The appellant accurately explained their content, as appears at [11], and the Tribunal took that into account in the manner there appearing. As Gray J observed, the course to be taken by the Tribunal in a case where a document is presented in untranslated form depends on the circumstances of the case. Here the Tribunal had the benefit of the appellant’s explanation of the content of the letters and why they were important to his case, and the Tribunal took what he said into account. As it happens, the explanation was accurate, as appears from [14]. The Tribunal did not fall into the error identified by Moore J of failing to seek to ascertain what the letters said or not taking steps that might give meaning to their contents.’
30 With reference to the dicta of Gray J in X 116 FCR the respondents submit that in view of the core paragraph in the reasoning of the Tribunal, it cannot be said here that the Tribunal had refused to take into account the effect of the contents of the CD. That is, it had taken into account the effect of what it thought the appellant had said the contents were. 31 The respondents submit that the circumstances in the present appeal, where some limited explanations were given by the appellant to the Tribunal of what was on the CD, sit closely with the circumstances in MZWKU FCA 996. They maintain that WAIJ 80 ALD is to be, in any event, distinguished because what the Tribunal did not do here (as a consequence of the core paragraph) was to dismiss the content of the CD, the substance of which had been put by the appellant to the Tribunal member for consideration. As a consequence there was no ignoring of relevant material in the present case. 32 In the event the evidence now in the affidavit had been before the Tribunal it arguably could have occasioned the Tribunal to examine its view on the credibility of the reports to which the appellant was referring. It would have been clear not all were ‘secret’. It would have been clear that the reports did not all relate to widespread abduction of Coptic girls. 33 Yet it cannot be said with any confidence that even that would have shaken the reliance the Tribunal placed on what it described as independent reports. 34 Additionally, this was not a case before the Tribunal where it had no evidence on the content of the CD. It had the benefit of the appellant’s explanation of the content. It took that explanation into account. This was not a case where, as a result of the refusal or disinclination to translate the CD, that the Tribunal ignored relevant material. On the contrary, it took the appellant’s description of the content into account. The circumstances in this appeal are therefore distinguishable from those in X 116 FCR. To apply the dicta of Gray J or Moore J here would be to ignore the circumstances of this case. The description of the content of the CD given by the appellant removed the one circumstance in X FCR 116 which made availability of a translation imperative. 35 In these circumstances I do not consider it can be safely concluded that the evidence now in affidavit form would very probably have produced a different result in the Tribunal. Leave should therefore be refused for admission of the affidavit on this appeal. 36 It follows from the above reasoning that the appellant cannot succeed on this first aspect of this ground.
Second aspect: irrationality
37 The appellant also relied on the contention that the Tribunal’s finding in the core paragraph was ‘illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds’. For this submission reliance is placed on WAIJ 80 ALD at [22] where Lee and Moore JJ said:
‘A determination based on illogical or irrational findings or inferences of fact will be shown to be a decision not supported by reason and to have no better foundation than an arbitrary selection of a result. It is because it is based upon such findings that the determination is an unreasoned decision. Such findings or inferences of fact become part of, and are not distinguishable from, the decision subject to judicial review. (See: S20/2002 per McHugh, Gummow JJ at [54]; Bond per Mason CJ at 338, 359-360). A review culminating in such a decision would be a process lacking practical fairness or justice and would not be a process conducted according to law.’
I accept the submission of the respondents that a body of Federal Court authority has made it clear that, notwithstanding the decision of the High Court in Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 (2003) 198 ALR 59, want of logic, or rationality, does not of itself suffice to constitute error of law, still less error of law which is jurisdictional: NBIO v Minister for Immigration and Multicultural Affairs [2006] FCA 1300 and VWFP and VWFO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 231 at [76]- [79].
Third aspect: denial of procedural fairness
38 The appellant also puts his case on this ground in respect of a denial of procedural fairness (whether at common law or as prescribed in Div 4 of Pt 7 of the Migration Act 1958 (Cth) (the Migration Act)) in denying him the opportunity to give meaning to the content of the CD by translating the information and/or explaining its source. For that submission reliance is placed on WAIJ 80 ALD at [53] as follows:
‘It is a denial of a fair process to purport to dismiss documents from consideration where the material therein supports an applicant’s case in substantive respects and no ground for such a course is provided by the documents on their face or by other facts.’
It is apparent from the effect of s 422B of the Migration Act that common law procedural fairness has thereby been excluded. That then throws the appellant’s argument onto the effect of s 424 of that Act which reads:
‘424
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on review.
(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.
(3) The invitation must be given to the person:
(a) except where paragraph (b) applies – by one of the methods specified in section 441A; or
(b) if the person is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.’
Neither in terms of the words of the section nor in authorities concerning it, is there any foundation for the view that the section gives rise by implication to a duty, the breach of which offends the rules of procedural fairness.
39 The appellant also turns to s 420 of the Migration Act and contends that where the appellant was not given a reasonable opportunity to provide evidence in support of his claim and to explain the relevance and effect of it, the Tribunal failed in discharging its duty. That is, that a fair, just and economical means of proceeding was not adopted by the Tribunal. 40 On this issue Hely J in SZBPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 568 said at [15]:
‘It is neither necessary nor appropriate to call in aid the provisions of s 420 of the Act in support of the appellant’s contention that the RRT was guilty of jurisdictional error in failing to treat the best interests of the child as a primary consideration. It is not appropriate to proceed in accordance with the appellant’s submission because s 420 of the Act is ‘facultative, not restrictive’ in its intent: Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [49]. Compliance with its provisions is not a precondition to lawful decision-making.’
Resort to s 420 cannot assist the appellant.
41 In support of his argument, the appellant also relies on what was said by Kirby J in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 223 ALR 171 at [71]:
‘Where a decision does not conform to the fundamental hypotheses of the legislation, as by a material departure from the requirements of procedural fairness, the law treats the resulting outcome as fatally flawed. In short, it is not a "decision" at all within the statutory grant (Miah [2001] HCA 22; (2001) 206 CLR 57 at 74-75 [51]- [54], 81-83 [80]-[86], 102-103 [148]; Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at 605 [13], 614-615 [51]; Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at 506-507 [76]- [78]). It is infected by "jurisdictional error".’
See also at [74], [75] and [163]. NAIS 223 ALR involved the issue of delay. The principles referred to by Kirby J and other members of the Court do not, in any event, provide authority for the view that the circumstances in the present appeal could be said to give rise to procedural unfairness. The appellant had the opportunity to put his case. It was resolved without any undue delay and without material departure from the requirements of procedural fairness. There is no basis in law for reading into the requirements of procedural fairness a duty to translate the information on the CD in the circumstances.
THE MILITARY GROUND
42 I agree with the submission for the respondents that the Tribunal and the Federal Magistrate committed no error, let alone a jurisdictional error, in their treatment of this ground. There was no identification of a wrong issue or the asking of a wrong question in relation to the issue of military service. The Tribunal correctly asked, and reached a finding on, the question of whether there was a real chance that the appellant would suffer serious harm, by reason of his religion, were he to return to Egypt. It was legitimate for the Tribunal to consider, as one aspect of that factual inquiry, whether the appellant might return to military service in the future.
CONCLUSION
43 For these reasons the appeal must be dismissed.
Associate:
Dated: 7
February 2007
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Solicitor for the Appellant:
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Counsel for the Respondent:
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Solicitor for the Respondent:
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Date of Judgment:
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