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Federal Court of Australia |
Last Updated: 15 August 2008
FEDERAL COURT OF AUSTRALIA
SBLF v Minister for Immigration and Citizenship [2008] FCA 1219
MIGRATION – visa –
protection visa – Tribunal hearing – adjournment – appellant
sought adjournment on the ground
that his case was not ready to proceed to
hearing, after consulting new solicitor/migration agent – Tribunal refused
adjournment
on ground that hearing already adjourned twice – no finding
that reasons for previous adjournments not legitimate – no
finding that
reason now advanced for adjournment not legitimate – whether Tribunal
denied appellant opportunity to give evidence
and present
arguments
MIGRATION – visa – protection visa –
review of decision to refuse visa – Tribunal member gave no weight to
unsigned
statement of appellant’s mother – failed to take into
account solicitor’s account of how statement had been obtained
– if
solicitor’s account accepted, statement manifestly had some weight –
fact-finding function of Tribunal –
whether Tribunal failed to perform its
statutory function to review decision to refuse visa
Judiciary Act 1903 (Cth) s
39B
Migration Act 1958 (Cth) ss 5(1), 36, 414(1), 415(1), 418(3), 420,
422B(1), 424A, 425(1), 425(2)
Convention relating to the Status
of Refugees done at Geneva on 28 July 1951
Protocol relating to the
Status of Refugees done at New York on 31 January
1967
Minister for Immigration and
Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597
cited
Minister for Immigration & Multicultural & Indigenous
Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 discussed
SBLF v
Minister for Immigration and Citizenship & Anor [2007] FMCA 1477 cited
SBLF v MINISTER FOR IMMIGRATION AND
CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
SAD 147 OF
2007
GRAY J
14 AUGUST
2008
ADELAIDE
|
AND:
|
THE COURT ORDERS
THAT:
1. The appellant have leave to
amend the notice of appeal by adding as a ground of appeal the
following:
The learned federal magistrate erred in holding that the Tribunal did not
commit jurisdictional error, whether by way of breach of
s 425 of the Act or a
denial of procedural fairness, in refusing to adjourn the hearing.
2. The
appeal be allowed.
3. The orders of the Federal Magistrates Court, made
on 31 August 2007, be set aside.
4. There be substituted for those orders
orders that:
(a) A writ of certiorari issue, removing into this Court
the decision of the second
respondent, signed on 7 August 2006 and handed
down on 29 August 2006,
affirming the decision not to grant to the
appellant a protection visa, for the
purpose of quashing that
decision.
(b) The decision of the second respondent, signed on 7 August
2006 and handed down on 29 August 2006, affirming the decision not
to grant to
the appellant a protection visa, be quashed.
(c) A writ of mandamus
issue, directed to the second respondent, requiring it to
hear and
determine the application of the appellant to review the decision of
a
delegate of the first respondent, refusing to grant to the appellant a
protection
visa, according to law.
(d) The first respondent pay the
appellant’s costs of the proceeding in the Federal
Magistrates
Court.
5. The first respondent pay the appellant’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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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
|
|
BETWEEN:
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SBLF
Appellant |
|
AND:
|
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
|
JUDGE:
|
GRAY J
|
|
DATE:
|
14 AUGUST 2008
|
|
PLACE:
|
ADELAIDE
|
REASONS FOR JUDGMENT
The nature and history of the proceeding
1 There are two issues raised by this appeal. Each is concerned with the question whether a decision of the Refugee Review Tribunal ("the Tribunal") is vitiated by jurisdictional error. The first issue concerns the refusal by the Tribunal to adjourn its hearing, when it was notified in advance by a solicitor and migration agent acting on behalf of the appellant that the appellant’s case was not ready to proceed at the hearing. The second issue concerns the Tribunal’s refusal to give any weight at all to a statement submitted to it containing information supplied by the appellant’s mother in Albania, because the statement was not signed.
2 The proceeding before this Court is an appeal from a judgment of the Federal Magistrates Court, published as SBLF v Minister for Immigration and Citizenship & Anor [2007] FMCA 1477. The learned federal magistrate dismissed an application by the appellant for judicial review of the decision of the Tribunal, signed on 7 August 2006 and handed down on 29 August 2006. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Citizenship, the first respondent to this appeal) (in both cases "the Minister"), refusing to grant to the appellant a protection visa.
3 It is accepted that the appellant is a citizen of Albania, who arrived in Australia on 2 November 2005, having obtained a visa to travel to Australia by using a false Italian passport. On 29 November 2005, the appellant applied for a protection visa. On 2 February 2006, the Minister’s delegate made a decision to refuse to grant the visa. The appellant then applied to the Tribunal for review of that decision. Having been unsuccessful in that application, the appellant filed an application in the Federal Magistrates Court, for relief of the kind available under s 39B of the Judiciary Act 1903 (Cth), on 22 September 2006. He filed an amended application on 5 April 2007. The federal magistrate heard the application on 11 April 2007 and gave judgment on 31 August 2007.
4 By s 36 of the Migration Act 1958 (Cth) ("the Migration Act"), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call those two instruments, taken together, the "Convention". For present purposes, it is sufficient to note that Australia has protection obligations to 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 fear, is unwilling to avail himself of the protection of that country5 The appellant attempted to establish a well-founded fear of being persecuted, should he return to Albania, for reasons of religion and political opinion. He claimed that he professed the Catholic religion, in a country dominated by Muslims, and was consequently in danger of persecution by reason of his religion. He also claimed that he had expressed publicly his opposition to an extremist Muslim political party and so was in danger of persecution on the ground of political opinion. He claimed to have been assaulted and beaten severely. He claimed that shots had been fired at him. He claimed that his parents had been forced to sell their house for less than its value and to move their place of residence because of threats. He claimed that his persecutors were still making inquiries of his parents in Albania as to the appellant’s whereabouts, and still making threats. He claimed to have been dismissed from employment. He said that he feared that, if he returned to Albania, the Muslims would make an example of him and would beat him and shoot him.
The legislation
6 Section 414(1) of the Migration Act provides that, if a valid application is made for review of an RRT-reviewable decision (of which there is no dispute that the Minister’s delegate’s decision was one), "the Tribunal must review the decision." By s 415(1), the Tribunal may, for the purposes of the review, exercise all the powers and discretions conferred by the Migration Act on the person who made the decision. It is well accepted that the Tribunal is required to perform its function by considering the subject matter of a decision of a delegate of the Minister afresh, on the material before the Tribunal, and not to decide whether that decision was correct on the material before the Minister’s delegate. Section 420 of the Migration Act provides:
(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case.7 Division 4 of Pt 7 of the Migration Act contains provisions concerning the conduct by the Tribunal of a review. Among them is s 425(1):
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.8 Section 425(2) contains exceptions to this obligation, none of which is applicable to the present case.
9 Also found in Div 4 of Pt 7 of the Migration Act is s 422B(1), which provides:
This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.The facts
10 The appellant’s original application for a protection visa was made with the assistance of a registered migration agent. The substance of his claim to have a well-founded fear of persecution for reasons of religion and political opinion was contained in a typewritten and signed statement 14 short paragraphs in length. The appellant’s account of his experiences recorded in that statement was very brief. Before the Minister’s delegate considered the matter, two invitations were sent to the appellant’s migration agent, addressed to the appellant, offering opportunities to provide additional information to support the claims. The migration agent responded to the first invitation, without providing any substantive information. There was no response on behalf of the appellant to the second invitation. The Minister’s delegate found that the appellant had "provided little or no evidence to support his claims". Consequently, the Minister’s delegate was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.
11 The same migration agent lodged the application for review by the Tribunal. By notice posted on 7 March 2006, sent to the migration agent, the Tribunal invited the appellant to a hearing on 19 April 2006. By facsimile transmission dated 28 March 2006 but apparently sent on 4 April 2006, the migration agent advised the Tribunal that he had a commitment to appear before the Full Court of this Court on the date of the appellant’s hearing, and requested a hearing at a later date. The Tribunal replied on 11 April 2006, agreeing to this request, and rescheduling the hearing for 24 April 2006. On that day, the migration agent again sent a facsimile to the Tribunal, which included a certificate of a medical practitioner, advising that the appellant was not able to keep the appointment because he was suffering from acute gastroenteritis. The Tribunal again rescheduled the hearing, this time for 8 May 2006.
12 On Friday, 5 May 2006, a firm of solicitors and migration agents, acting on behalf of the appellant, sent by facsimile to the Tribunal a letter, including the following:
[The appellant] has retained our services because he was concerned that his current representative has not properly prepared his case, either for the original protection visa application or his case on review by the Refugee Review Tribunal. [The appellant] has provided us with a copy of an 18 paragraph statement, which, on our instructions, constitutes the only evidence before the Department and the RRT regarding his claims, apart from some articles and information obtained by his former migration agent through the internet. In our view, there are a number of deficiencies in the manner in which this case has been prepared and submitted. [The appellant] claims that he will suffer persecution in Albania because of his political opinion. In an incident on 3 July 2005 he publicly expressed his opposition to the Islamic Muslim Party ("Partia Shquiptare Atgheu"). On our instructions there were a number of witnesses to the incident. The witnesses are friends and cousins of [the appellant] and he is in a position to provide us with their details so that we can obtain detailed statements from them. [The appellant] informs us that since his departure from Albania members of the Partia Shquiptare Atgheu have attended at his parent’s [sic] address looking for him. We need to obtain statements from his parents in relation to the ongoing efforts of the representatives of the Partia Shquiptare Atgheu to locate [the appellant]. [The appellant] must demonstrate that the state of Albania is unable or unwilling to provide him with the protection he requires. On our instructions, no evidence appears to have been submitted to the Tribunal or the Department in relation to this aspect of the claim. In fact, [the appellant] is quite clear that the Albanian State and its agencies are unable to provide him with the protection he requires. I have informed [the appellant] that we require evidence of the failure of State protection. We are not in a position to proceed in this matter on Monday 8 May 2006. In our view, we will require at least two months to obtain the necessary statements and prepare a submission for the Tribunal. We seek an adjournment of this application for a period of at least two months. We are most concerned that if an adjournment of the hearing is not granted, the Tribunal will effectively be depriving [the appellant] of his right to a hearing. We would be grateful if you could urgently respond to this request.13 The Tribunal proceeded with the hearing, as scheduled, on Monday, 8 May 2006. The appellant attended with his solicitor, who was also a registered migration agent. As recorded in its reasons for decision, the Tribunal did not grant the request to postpone the hearing "after due consideration" and advised the appellant’s representative of this decision at the hearing. The Tribunal said:
The representative was informed that the Tribunal had considered a request to postpone the hearing but had not agreed to such a request given that this matter had previously been postponed twice, once because the applicant’s then-representative [sic] had another hearing scheduled on the same day and the other time because the applicant did not attend as a result of illness.14 The Tribunal’s reasons also record:
The applicant’s representative requested permission to make a submission to the Tribunal after the hearing. Given the need for s.424A correspondence arising from the evidence at the hearing, the representative agreed with the Tribunal that this would give her ample time to make any further submission.15 On 10 May 2006, the Tribunal sent a letter to the appellant pursuant to s 424A of the Migration Act, requesting that he provide written comments on information referred to in that letter. The appellant’s solicitor provided a response dated 23 May 2006, attaching a statement signed by the appellant, and requesting an extension of time to provide corroborating evidence in support of the appellant’s claims. No such extension was granted formally, but further information was submitted on 24 May, 14 June, 26 June and 12 July 2006. The information provided on 14 June 2006 consisted of certified translations of a contract of sale of the appellant’s parents’ house and a statement of an Albanian medical practitioner concerning injuries with which the appellant presented on 25 June 2005 and subsequently on 3 July 2005. The information submitted on 26 June 2006 was in the form of a statement prepared for signature by the appellant’s mother. The statement was accompanied by a letter from the appellant’s solicitor to the Tribunal, in the following terms:
We refer to previous correspondence in this matter and now attach a copy of a draft Statement of [the appellant’s] mother. Please note that the Statement has not as yet been checked or signed by her. Arrangements are in place for the Statement to be translated, checked and signed by [the appellant’s mother] and returned to us in the near future. The Statement was obtained by the writer by contacting [the appellant’s mother] by telephone and using the services of Mr Entel Demaji, a NAATI level 3 accredited interpreter. We would be grateful if the Tribunal would take this information into account in assessing [the appellant’s] application.The Tribunal’s reasons
16 The Tribunal found that the appellant had provided "conflicting and contradictory evidence" in relation to his claims in the course of pursuing his application for a protection visa. In its reasons for decision, the Tribunal said:
When invited to comment in writing and explain the direct conflicts and contradictions in his evidence over time, the applicant did not directly address the matter but submitted that his previous representative had not interviewed him in depth and the applicant had been concerned that he had not been given the opportunity to fully explain what had happened to him in Albania. I do not accept this as a satisfactory explanation for this conflicting and contradictory evidence as the evidence presented over time is not lacking in detail but is directly contradictory. The applicant has made no submission to indicate that the previous representative had in any way misrepresented his claims to the Department or the Tribunal or had made any errors in the information provided on behalf of the applicant. Based on the highly conflicting and contradictory evidence before me in relation to the applicant’s problems with members of Partia Shjiptar Atdheu I find that the applicant was not a witness of truth in this regard and that his evidence in relation to his problems with Partia Shjiptar Atdheu lacks credibility. Based on this finding in relation to the lack of credibility of the applicant’s evidence, and based on the evidence before me, I am not satisfied that the applicant ever suffered any of the alleged problems he claims to have suffered with members of Partia Shjiptar Atdheu. I therefore find that the applicant was never beaten by members of this party and hospitalised as a result of injuries received in these beatings either on 25 July 2005 or 3 July 2005 or on both occasions; he was never forced to vote for Partia Shjiptar Atdheu against his will at the elections on 3 July 2005; he was never shot at by members of this party whilst driving his car; members of this party have never gone to look for him at his parents’ house both before and after he left Albania; he was never sacked by his employer in August 2005 because of pressure from members of this political party; that his parents were not forced to sell their house at a price well below market value to assist the applicant to leave Albania; and that members of Partia Shjiptar Atdheu do not have any ongoing interest in the applicant whatsoever. In making these findings I have considered the letter of the doctor indicating that the applicant was hospitalised on 25 July 2005 and again on 3 July 2006. The letter does not indicate the reason why the alleged injuries requiring hospitalisation were caused and makes no indication whatsoever that they were caused as a result of alleged altercation with members of Partia Shjiptar Atdheu, as claimed by the applicant. I have therefore not placed any weight on this letter when making this decision. I have also considered the contract of sale for the applicant’s parents’ house as submitted by the applicant. The contract, as translated gives no indication as to the reason for the sale of the property and gives no indication as to whether the vendors had sold the property at any price other than its true market value. I have therefore placed no weight on this contract when making this decision. I have not placed any weight when making this decision on the unsigned statement purporting to be a statement from the applicant’s mother as at the time of making this decision this statement has not been signed by the applicant’s mother and cannot be taken to be a true indication of her views or opinions.17 Accordingly, the Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the Convention and found that he did not satisfy the criterion for a protection visa.
The judgment of the Federal Magistrates Court
18 The appellant’s amended application to the Federal Magistrates Court was made partly on grounds that are not the subject of this appeal, particularly in relation to the requirements of s 424A of the Migration Act. So far as it is potentially relevant to this appeal, the amended application raised two issues. The first was that, by rejecting and failing to consider the appellant’s mother’s statement on the basis that it was not signed, the Tribunal misunderstood its powers and functions in relation to evidentiary material and therefore failed to exercise its jurisdiction and to perform its function of reviewing the decision of the Minister’s delegate, as required by s 414 of the Migration Act. The second issue was that, in refusing the request for an adjournment of the hearing on 8 May 2006, the Tribunal denied the appellant procedural fairness or failed to comply with s 425 of the Migration Act, because the hearing to which it invited the appellant was not a hearing that had the necessary elements of a hearing required by that section.
19 The federal magistrate found against the appellant on all grounds in the amended application. At [49] of his reasons for judgment, his Honour said in relation to the issue of the appellant’s mother’s statement:
The letter from the applicant’s agent of the 26 June 2006...indicates that the document is being provided on a provisional basis. It is conceded that the statement has not been signed by the mother nor even checked by her. It is apparent that it is yet to be translated to her. I take the applicant’s agent’s letter to be indicating that the Tribunal had been asked to receive the letter conditionally upon those matters being attended to subject to those implicit conditions, the Tribunal is asked to accept the statement. As matters transpired, the Tribunal did not deliver its decision until the 29 August 2006. No explanation for the failure to attend to the translating, checking and signing of the statement by the mother was provided to the Tribunal or to this Court. In these circumstances the Tribunal was entitled to take the view which it did that there was nothing to establish that the document was a reflection of the mother’s actual views or opinions.20 At [50]-[51], his Honour also rejected the argument that the Tribunal denied the appellant procedural fairness by not giving him notice of its intention to reject the mother’s statement. As well as relying on the proposition that the appellant’s solicitors themselves recognised that the statement was provided provisionally, his Honour took the view that s 422B of the Migration Act prevented the appellant from relying on any argument of procedural fairness, as there was no suggestion that the denial of procedural fairness constituted a failure to comply with any relevant provision of the Migration Act.
21 In relation to the refusal of an adjournment, at [53]-[54], the federal magistrate said:
The applicant says that the fact that the Tribunal based its rejection of the applicant’s claim on the inconsistency between the first statement and the evidence given at the hearing which proceeded over the applicant’s objection (and also between the first statement and the second statement which was provided after the oral hearing) exacerbates the unfairness involved in not granting the adjournment. Apart from the obstacle to the acceptance of this argument presented by s.422B of the Act, it cannot be overlooked that a period of some three months elapsed between the denial of the adjournment and the delivery of the Tribunal’s decision. In that time the Tribunal received further representations and documents and a further statement of the applicant all of which were given consideration (although not all were given weight). There is nothing to indicate that by the time the Tribunal delivered its decision the applicant had not been given ample opportunity to present his case. The difficulties for the applicant arising from the Tribunal’s view that the oral testimony was inconsistent with the first statement were not a function of an adjournment not being granted or at least there is nothing to indicate that such was the case.The grounds of appeal
22 Although there were four grounds specified in the notice of appeal, the first three of them related to the issues said to arise under s 424A of the Migration Act, and were abandoned prior to the hearing of the appeal. The ground that was pursued in the appellant’s written submissions was that the federal magistrate erred in not holding that the Tribunal had committed jurisdictional error by the manner in which it rejected the unsworn statement of the appellant’s mother. As a result of the manner in which argument developed on the hearing of the appeal, counsel for the appellant applied for leave to amend the notice of appeal in the course of that hearing, by adding a ground raising the issue of the Tribunal’s refusal to adjourn the hearing fixed for 8 May 2006, in the following terms:
The learned federal magistrate erred in holding that the Tribunal did not commit jurisdictional error, whether by way of breach of s 425 of the Act or a denial of procedural fairness, in refusing to adjourn the hearing.23 In reserving judgment, I indicated that I proposed to consider the question whether leave to amend the notice of appeal should be granted.
24 The two issues argued on the appeal, therefore, were those related to the Tribunal’s refusal to give any weight to the statement of the appellant’s mother, and the Tribunal’s refusal to accede to the request for an adjournment of the hearing of 8 May 2006. It is convenient to deal with these two issues in their chronological order.
The refusal to adjourn the hearing
25 The letter of 5 May 2006 from the appellant’s solicitor to the Tribunal set out substantial reasons for seeking an adjournment of the hearing scheduled for the following Monday. These included a number of statements of fact. The appellant had only consulted the solicitors recently. He was concerned that his earlier migration agent had not prepared his case properly. There were deficiencies in the manner in which the case had been prepared and submitted. Most importantly, there were particular persons capable of supplying information that might assist in corroborating the appellant’s account of what had happened to him and of the continuing attempts by those he claimed would persecute him to ascertain his whereabouts. In addition, there was a major issue, namely the availability of state protection for the appellant from those he claimed would persecute him, as to which the solicitors needed to obtain and submit information. The letter asserted that, if an adjournment were not granted, effectively the Tribunal would be depriving the appellant of his right to a hearing. The Tribunal did not deal expressly with any of these matters, other than to state that a postponement of the hearing was sought to enable the new representative "to further prepare" the appellant’s case. There is no indication as to what constituted the "due consideration" that the Tribunal said it gave to the request for a postponement. The only reason given for such a refusal was that the hearing had been postponed twice previously.
26 It is clear that the Tribunal did not grapple with the substance of the letter of 5 May 2006. That letter referred to issues arising in relation to the decision under review, the decision of the Minister’s delegate to refuse to grant the appellant a protection visa. It indicated that the appellant was not ready to give evidence and present arguments in relation to those issues, because he did not have available to him immediately evidence that would corroborate his claims. The letter gave reasons for the unavailability of this evidence. The Tribunal member did not take issue with the assertion of the unavailability of evidence at that time. He did not assert that the evidence was in fact available, should have been available, or would be unnecessary. The letter also gave a reason for the appellant’s lack of readiness, namely the inadequacy of the earlier preparation of the case. The state of the earlier preparation of the case would have been apparent to the Tribunal member both from the reasons for decision of the Minister’s delegate and from documents that were already on the Tribunal’s file, having been forwarded to the Tribunal in compliance with the duty imposed on the Secretary of the relevant department by s 418(3) of the Migration Act. The Tribunal member did not take issue with the reason advanced. He did not find that the case was, or should have been, prepared sufficiently to enable the hearing to proceed.
27 The only reason given by the Tribunal member for refusing to postpone the hearing was the fact that there had been two earlier postponements. The Tribunal member did not find that the reason advanced for either of the two earlier postponements had not been a genuine reason. Indeed, the Tribunal member appeared to have accepted that the different reasons advanced on those two occasions (a conflicting engagement of the appellant’s migration agent and the appellant’s illness respectively) were genuine. Nor did the Tribunal member assert any absence of genuineness about the reasons advanced in the letter of 5 May 2006. There was no reference made to any rule or practice to the effect that no more than two postponements of a hearing would be permitted. It is hard to see how any such rule or practice could be applied, if a person had a genuine reason for a third postponement. The fact that there had been two previous postponements was nothing more than one matter to consider, and to weigh against the basis on which a third postponement was sought. The Tribunal member did not undertake such a weighing process. If it had done so, a powerful factor in the appellant’s favour was the Tribunal’s obligation to provide him with a proper opportunity to take advantage of the invitation to a hearing, by giving evidence and presenting arguments about the issues arising in relation to the review of the decision of the Minister’s delegate to refuse the appellant a protection visa.
28 Unless it concluded that the considerations advanced by the appellant’s solicitors were outweighed by other legitimate considerations, the Tribunal ought to have granted the appellant an adjournment. This was not a situation, as might arise when an adjournment of a court proceeding is requested and, having regard to previous adjournments, a further adjournment would cause prejudice to an opposing party. In the Tribunal, there is no adversary of an applicant for a protection visa. Prejudice to that applicant is the only relevant prejudice. Of course, the Tribunal might conclude that a particular applicant is applying for multiple adjournments, without any proper basis for any of them, so as to delay consideration of the application for review. No such conclusion was reached in the present case. In the light of the matters raised by the appellant’s solicitor’s letter, and the apparent acceptance of the validity of the reasons for the previous adjournments, such a conclusion would have been unlikely. The requirement of s 420(1) of the Migration Act that the Tribunal pursue the objective of providing a mechanism of review that is quick cannot be relied on in disregard of the requirements (of at least equal weight) that the Tribunal pursue the objective of providing a mechanism of review that is fair and just.
29 It is now well-established that the invitation that the Tribunal is required by s 425(1) of the Migration Act to give to an applicant is not a matter of form. The duty to give the invitation will not be performed if what the Tribunal then affords to an invited applicant is not a hearing that conforms with the requirements of s 425(1). This was made clear in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 (2003) 128 FCR 553 at [33]- [39]. Section 425(1) requires that the invitation be to a hearing at which the applicant is "to give evidence and present arguments relating to the issues arising in relation to the decision under review." As SCAR itself makes clear, even if the Tribunal is unaware of the inability of the applicant to give evidence and present arguments about those issues, the hearing will have fallen short of the requirements of s 425(1), so that the duty to invite the applicant to a hearing of the required kind will not have been fulfilled. In that case, the Tribunal was unaware that the applicant was undergoing medical treatment as a result of being affected badly by news of his father’s recent death. In [39] of its reasons for judgment in SCAR, the Full Court relied on Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597, in which it was held that the Tribunal had denied the applicant procedural fairness through inadvertence, because it was unaware of a letter seeking an adjournment of the hearing.
30 The question in the present case, therefore, is not whether the Tribunal’s decision to refuse to adjourn the hearing was correct. If that were the question, there would be little doubt that the Tribunal’s discretion miscarried, because it failed to take into account relevant material before it, namely the substance of the reason why the adjournment was sought. The question in the present case is whether the decision had the effect of denying to the appellant the sort of hearing that the Tribunal was required to invite him to, namely a hearing in which he could both give evidence and present arguments in relation to the issues. Because he had relied on a migration agent who had not done all that a conscientious migration agent would do, the appellant was not in a position to give evidence or present arguments about those issues. This was not a case of a failure by the appellant to give due attention to his application for a protection visa, or his application for review of a decision refusing him such a visa. He had done what could reasonably be expected of him, namely to engage a migration agent. The realisation that his migration agent may not have done all that a competent migration agent ought to have done apparently led the appellant to seek other advice. As a consequence of this chain of events, and as the Tribunal well knew, he was not in a position to present his case fully.
31 The fact that the appellant had opportunities after the hearing on 8 May 2006 to provide documentary evidence is not sufficient in the present case to overcome the deficiencies of the hearing. Because of the unavailability of the information at the hearing, the appellant did not have an opportunity to present arguments in relation to the issues at that hearing.
32 In its reasons for decision, the Tribunal recorded that the appellant’s solicitor agreed that the time it would take for the Tribunal to comply with its obligations under s 424A of the Migration Act would provide ample time to make any further submission. In no way could this be taken to have amounted to a waiver of a right to an invitation to a hearing that complied with s 425(1). It is unnecessary to consider whether, other than in the ways contemplated by s 425(2), it would be possible for an applicant to waive the performance of the Tribunal’s statutory duty under s 425(1).
33 For these reasons, I am of the view that the Tribunal failed to perform its statutory duty under s 425(1) of the Migration Act. Because the duty under s 425(1) is an essential prerequisite to the making of a valid decision by the Tribunal, the failure to perform that duty amounts to jurisdictional error. The federal magistrate was in error in failing to find that the Tribunal’s decision was the result of jurisdictional error. The federal magistrate did not discuss the question whether there had been a failure to comply with s 425, but treated the issue as being one of denial of procedural fairness in a general sense, and seems to have thought that s 422B of the Migration Act was an obstacle to accepting that argument. It is unnecessary for me to consider whether s 422B would have operated to exclude the ordinary implied obligation of the Tribunal to afford procedural fairness to the appellant, because I take the view that there was a failure to comply with the duty imposed on the Tribunal by s 425(1) in any event. For the reasons that I have given, the federal magistrate was also in error in holding that the subsequent opportunities the appellant had to provide information were capable of curing the error. As I have said, a failure to perform the Tribunal’s statutory duty under s 425(1) cannot be cured by the subsequent provision of information in writing.
34 Having reached these conclusions, in the interests of justice, I should grant to the appellant leave to amend the notice of appeal by adding the ground proposed, which I have set out in [22] above. That ground of appeal is made out.
The appellant’s mother’s statement
35 In considering this ground of appeal, two important facts must be borne in mind. The first is that the Tribunal member gave no weight at all to the appellant’s mother’s statement. The second is that the sole reason given by the Tribunal for taking this course was that the statement had not been signed by the appellant’s mother. The Tribunal member described the statement as one "purporting to be a statement" from the appellant’s mother, and concluded that it could not be taken to be a true indication of her views or opinions.
36 The letter from the appellant’s solicitors to the Tribunal, accompanying the statement, contained specific information about the way in which the evidence contained in the statement had been obtained. According to that letter, the statement was obtained by contacting the appellant’s mother by telephone, using the services of an interpreter accredited to the level required to act as a court interpreter. The Tribunal did not make any finding that this information was untrue. It simply ignored the information. If accepted, the information would have led to the view that the mother’s statement had probative value in relation to a number of elements of the appellant’s claims. It was not the case that the appellant and his solicitors, or one or other of them, had written out what they thought the appellant’s mother might say, or ought to say, with a view to submitting the draft to her to see if she was prepared to say it. The letter informed the Tribunal that the statement was made on the mother’s instructions, obtained through a qualified interpreter. Far from indicating that the statement was provisional, as the federal magistrate found, the letter specifically invited the Tribunal to take the information into account in assessing the appellant’s case. It is true that the letter also drew attention to the fact that the statement had not yet been checked or signed by the appellant’s mother. This could have been a reason why the weight to be attached to the statement might have been less than would have been the case if the statement had been translated to the appellant’s mother, checked by her and then signed as true and correct. It did not follow, however, that the unsigned statement was necessarily to be treated as of no weight because it was not signed. If the solicitor’s statement as to the way in which the information contained in the statement was obtained was to be accepted, then subject to any appropriate reservations about whether the statement was accurate in every single respect, it had probative value even in its unsigned form.
37 By s 420(2)(a) of the Migration Act, the Tribunal was not bound by the rules of evidence. The evidence that the Tribunal acts on does not have to be sworn. In circumstances in which the Tribunal is required to deal with applications by people who seek protection visas, it is almost inevitable that the Tribunal will receive some of the evidence it considers in the form of documents in which people who are not called to give evidence before it in person provide information. There is no ground for the Tribunal to reject evidence in this form out of hand. It must consider such evidence as it receives and give to it such weight as it believes that the evidence merits. It cannot reject information arbitrarily, whether because of the form in which the information comes, or otherwise. What the Tribunal did in the present case was to reject the appellant’s mother’s statement arbitrarily. In the circumstances, because it did not find that the account in the solicitor’s letter of how the statement had been obtained was false, but simply failed to refer to that account, the Tribunal’s conclusion that the statement had no weight at all was perverse.
38 The Tribunal’s overall statutory function, pursuant to s 414(1) of the Migration Act was to review the decision of the Minister’s delegate. As I have said, that function is to be exercised by means of what is called a hearing de novo, in which the Tribunal must receive information and submissions and make its own decision on the material before it. The Tribunal has a fact-finding function, which it must exercise for this purpose. Fact-finding is a process that involves consideration of all probative material placed before the fact-finder. It is not open to the fact-finder to choose not to rely on probative material properly before him or her. There is a clear distinction between making a finding of fact inconsistent with some of the material of a probative nature, after consideration of the whole of the material, and choosing not to rely on some of the material at all. In many, if not most, cases, it will be inevitable that the fact-finder will make findings inconsistent with some of the probative material before him or her. That is the natural result of the process, which involves determining what to accept and what to reject. That process is altogether different from arbitrary rejection of probative material by labelling it as without probative value, or weight, altogether, when it has probative value. That is what the Tribunal did in this case.
39 The approach of the Tribunal member in the present case to the fact-finding process, demonstrated by the rejection of the mother’s statement, raises the question whether the Tribunal member understood the nature of the fact-finding process as a central element in the exercise of the review function. In my view, he did not. I am fortified in this view by the reasons the Tribunal member gave for the attribution of no weight to the letter of the doctor and the contract of sale of the appellant’s parents’ house. One of the appellant’s claims was that on a particular date, he had been severely beaten because of his expression of political opinion based on his religious affiliation. The doctor’s letter, if its provenance were to be accepted, corroborated this claim to the extent of describing injuries for which the appellant was treated on that occasion. The Tribunal member did not question the provenance of the letter. The letter was therefore probative of the appellant’s claim. It was not probative of every element of that claim, and the Tribunal member was correct to point out that it did not cast light on the claim as to the reason for the infliction of the injuries. It is unlikely that the doctor could have cast any light on that. The fact that the letter did not conclude the question of the cause of the injuries did not deprive it altogether of corroborative weight. The attribution of no weight to it showed that the Tribunal member lacked understanding of the fact-finding function, and therefore of his function of reviewing the Minister’s delegate’s decision.
40 I take the same view in relation to the contract of sale of the house. The appellant’s claim was that, because of the attention of those who sought to persecute him, his parents had sold their house and the family had moved to another place. The contract of sale corroborated this claim to the extent of supporting the proposition that the house had been sold. Again, the Tribunal member did not express a doubt as to the genuineness of the contract. He attributed no weight to it because it did not corroborate all elements of the appellant’s particular claim. Not surprisingly, the contract gave no reason for the sale, nor any indication as to what price the vendors might have sought if they had held out for the true market value. The absence of this information from the contract itself did not mean that the contract lacked probative weight altogether. It meant that the contract only corroborated the appellant’s claim to a limited extent. The rejection of this item of evidence on this basis was again arbitrary.
41 My conclusion that the Tribunal’s rejection of the appellant’s mother’s statement showed its lack of understanding of the fact-finding function is therefore strengthened by the similar arbitrary rejection of the doctor’s letter and the contract of sale of the home. As a result of the Tribunal’s arbitrary rejection of the appellant’s mother’s statement, by attributing to it no weight in circumstances when no ground existed for saying that it had no weight, it is necessary to conclude that the Tribunal failed to perform its function of reviewing the decision of the Minister’s delegate. It failed to comply with its statutory duty under s 414(1) of the Migration Act. It did not carry out the task of finding the facts on the information before it, which was necessary to the exercise of that function. The federal magistrate was in error in rejecting this ground of challenge to the Tribunal’s decision. The federal magistrate did not advert to the information in the solicitor’s letter about how the statement had been obtained. His Honour wrongly construed that letter as being an indication that the Tribunal was not being asked to receive the statement in evidence until such time as it had been translated, checked and signed. His Honour was wrong to say that the Tribunal was entitled to take the view that there was nothing to establish that the document was a reflection of the mother’s actual views or opinions.
Conclusion
42 The appellant is therefore entitled to succeed on both grounds of the appeal. The appeal must be allowed and the order of the Federal Magistrates Court, made on 31 August 2007, dismissing the appellant’s amended application and ordering him to pay the Minister’s costs, must be set aside. In lieu of those orders, there should be orders that a writ of certiorari issue to remove into this Court the decision of the Tribunal, for the purpose of quashing it. The Tribunal’s decision must be quashed. A writ of mandamus must issue, directed to the Tribunal, requiring it to hear and determine the appellant’s application for review according to law.
43 No reason was advanced, and none appears, why the first respondent should not pay the appellant’s costs of the proceeding below, or of the appeal. Costs should follow the event in each case, and orders should be made accordingly.
Associate:
Dated: 14
August 2008
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Solicitor for the Appellant:
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McDonald Steed McGrath Lawyers
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Counsel for the Respondents:
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K Tredrea
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Solicitor for the Respondents:
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Sparke Helmore
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Date of Judgment:
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1219.html