SZBWJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 13 (22 February 2006)

PRACTICE AND PROCEDURE – application for leave to raise new grounds of appeal from decision of Federal Magistrate – proposed new grounds could have been raised before Federal Magistrate

Judiciary Act 1903 (Cth), s39B
Migration Act 1958 (Cth), ss 29, 31, 36, 46, 47, 411, 412, 414, 415, 424, 424A, 426
Migration Regulations 1994 (Cth), rr 2.07, schedule 1 item 1401

Cases referred to
NAGC & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 171
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162
WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 266; (2002) 124 FCR 276

SZBWJ, SZBWK, SZBWL AND SZBWM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 711 OF 2005

MOORE, NICHOLSON AND EMMETT JJ
22 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD711 OF 2005

BETWEEN:	SZBWJ FIRST APPELLANT SZBWK SECOND APPELLANT SZBWL THIRD APPELLANT SZBWM FOURTH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGES:	MOORE, NICHOLSON AND EMMETT JJ
DATE OF ORDER:	22 FEBRUARY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Leave to amend the Notice of Appeal to raise a new ground of appeal be refused.

2. The appeal be dismissed.

3. The first and second appellants 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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 711 OF 2005

BETWEEN:	SZBWJ APPLICANT SZBWK SECOND APPELLANT SZBWL THIRD APPELLANT SZBWM FOURTH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	MOORE, NICHOLSON AND EMMETT JJ
DATE:	22 FEBRUARY 2006
PLACE:	SYDNEY

1 I agree with Nicholson and Emmett JJ that leave to raise the new ground should be refused and the appeal be dismissed, for the reasons given in paragraphs 48 to 54 of their Honours’ reasons for judgment.

I certify that the preceding one (1) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD711 OF 2005

BETWEEN:	SZBWJ FIRST APPELLANT SZBWK SECOND APPELLANT SZBWL THIRD APPELLANT SZBWM FOURTH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGES:	MOORE, NICHOLSON AND EMMETT JJ
DATE:	22 FEBRUARY 2006
PLACE:	SYDNEY

2 The first and second appellants are husband and wife. The third and fourth appellants are respectively their infant son and infant daughter. The husband, wife and son arrived in Australia on 24 September 1999. On 5 November 1999, they lodged applications for protection (Class XA) visas under the Migration Act 1958 (Cth) ("the Act"). On 1 December 1999, a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), refused to grant protection visas to the husband, wife and son. On 16 December 1999, those appellants applied to the second respondent, the Refugee Review Tribunal ("the Tribunal"), for review of the delegate’s decision.

3 The daughter was born in Australia on 7 June 2000. On 25 August 2000, an application was lodged in her name for a protection (Class XA) Visa under the Act. On 26 April 2001 a delegate of the Minister refused to grant a protection visa and, on 15 May 2001, an application to the Tribunal was lodged on behalf of the daughter seeking review of the delegate’s decision.

4 On 5 March 2002, the Tribunal affirmed the decisions of the delegate not to grant protection visas to the husband, wife and son. On the same day, the Tribunal affirmed the decision not to grant a protection visa to the daughter.

5 On 22 April 2002, the appellants commenced a proceeding in the Federal Magistrates Court seeking relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the decisions of the Tribunal. On 7 August 2002, Driver FM ordered that the proceeding be dismissed with costs (NAGC & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 171). On 26 August 2002, the appellants lodged a notice of appeal to the Federal Court seeking orders that the appeal be allowed and that the orders of Driver FM be set aside. The appeal was heard by Emmett J on 21 November 2002, when the appeal was dismissed with costs. The appellants sought special leave to appeal to the High Court from the order dismissing the appeal. That application was subsequently discontinued on 13 November 2003.

6 However, on 11 November 2003, the appellants commenced a second proceeding in the Federal Magistrates Court seeking relief under s 39B in respect of the same decisions of the Tribunal. An amended application was lodged on 28 June 2004. At the hearing of the proceeding on 18 April 2005, a further amended application was filed with leave granted by Scarlett FM. The hearing proceeded on the basis of that further amended application and written submissions made on behalf of the appellants. On 18 April 2005, Scarlett FM ordered that the application be dismissed as incompetent on the basis that the appellants had failed to establish that there was any jurisdictional error on the part of the Tribunal in making the decisions of 5 March 2002.

7 By notice of appeal filed on 9 May 2005, the appellants appealed from the orders made by Scarlett FM on 18 April 2005. On 19 October 2005, a document entitled ‘Final Amended Notice of Appeal’ was filed.

8 The Tribunal found that the husband was the managing director of a company in Bangladesh and that he travelled overseas, carrying out business for that company. However, the Tribunal rejected the husband’s claims that he was a significant local figure in the Bangladesh National Party and that he faced serious harm at the hands of a political opponent who was in the Awami League but is now in the Bangladesh National Party. That conclusion was based upon the Tribunal’s unfavourable assessment of the husband’s credibility. That assessment was in turn based upon inconsistencies between the husband’s evidence and the wife’s evidence before the Tribunal.

9 In its reasons, the Tribunal recorded that, at the hearing, the husband was asked when it was that he had experienced serious problems in Bangladesh, such that he felt that he had to leave the country. The husband claimed that it was in September 1999 and said that about a week before he left Bangladesh his house had been fired on and that previously a petrol bomb had been exploded outside. He claimed that the wife was there at the time.

10 The Tribunal’s reasons record that, when the wife came into the hearing room, she was asked when she and her husband had experienced serious problems. She appeared uncertain and provided responses that were general and not related to a time frame. In response to assurances from the Tribunal that it only required approximate times, the wife said that there had been incidents at her husband’s office and also at her home. When asked to give details of those that she had experienced at her home, the wife said that there had been a shooting at the house. She was asked when that had occurred, using, ‘as a frame of reference’, the fact that the family had left Bangladesh in September 1999. In answer to the question how long before that departure the shooting at the house had occurred, the wife replied that it was about two to three months, around July 1999, and that she had then gone to her mother’s home until the family came to Australia.

11 The Tribunal then put to the husband the inconsistency between the wife’s account and his account and asked if he had any comments. The husband said that the wife was incorrect and that the shooting had occurred as he had claimed and that the wife was in the house when the shooting had occurred, which was about a week before they came to Australia.

12 The Tribunal referred to the inconsistency between the husband’s and wife’s accounts in the following terms:

13 The Tribunal was of the view that an incident as significant as the shooting at the house a week before departure would not have been overlooked by the wife, if in fact it had occurred, particularly since the Tribunal’s questions focussed particularly on significant incidents of harm that had led to the decision to leave Bangladesh. The Tribunal concluded, therefore, that the claim of the shooting had been fabricated for the sole purpose of providing a basis for a protection visa application.

14 However, the Tribunal then went on to make a finding that, even if the husband’s claims were accepted, the harm that he claimed was localised, such that he could reasonably find protection in Bangladesh by moving from the area in which he lived he lived to another area. The Tribunal found that the husband is an educated and skilled businessman and that, while it may be inconvenient for him to relocate, he has the right to move to another area of Bangladesh and could establish and sustain himself and his family in an area away from a local area where he claimed to face harm at the hands of a local political opponent. Accordingly, any fear of persecution that he claimed to hold for reasons of his political opinion was not well founded.

15 The wife claimed that her fear of persecution was consequential to the husband’s fear of persecution at the hands of his political opponents in his local area. Similarly, the success of the son’s application for a protection visa rested solely on whether or not his father has a well founded fear of persecution. The Tribunal therefore concluded that neither the wife nor the son has a well founded fear of persecution. In its separate decision in relation to the daughter, the Tribunal observed that, since the daughter’s case rested solely on whether or not her father faced a real chance of persecution in Bangladesh, the decision in relation to the father’s application meant that the daughter’s application was unsuccessful.

16 When the appeal was called on for hearing before the Full Court on 8 November 2005, counsel for the appellants indicated that he wished to raise new grounds, which had not been raised in the original proceeding in the Federal Magistrates Court in 2002, or in the subsequent proceeding commenced in the Federal Magistrates Court in 2003, or in the Final Amended Notice of Appeal filed on 19 October 2005. Counsel then applied on behalf of the appellants for leave to file a second further amended application to the Federal Magistrates Court. He also applied for leave to file a further amended notice of appeal raising, as a ground of appeal to the Federal Court, error on the part of Scarlett FM in failing to set aside or quash the Tribunal’s decisions on the grounds specified in the proposed second further amended application to the Federal Magistrates Court. All of the existing grounds were to be abandoned except in so far as they are comprised in the proposed new grounds.

17 The new grounds are that the Tribunal misconstrued s 424A of the Act and failed to comply with the requirements of s 424A(1). Section 424A(1) relevantly provides that the Tribunal must give to an applicant particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review. The Tribunal must also ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review and must invite the applicant to comment on it. Section 424A(2) relevantly provides that the information and invitation must be given to the applicant in writing. However, under s 424A(3), s 424A(1) does not apply to information:

19 The Minister opposed the grant of leave to amend on several bases. First, the Minister says that the amendment would be futile, since the appeal would be doomed to failure on the proposed new grounds. Secondly, the Minister said that there was another basis upon which the Tribunal affirmed the decisions not to grant protection visas, which was entirely unrelated to the matter in respect of which the appellants complain about failure to comply with s 424A(1). Thirdly, the Minister said that, in any event, the Court would decline, as a matter of discretion, to grant relief, even if some jurisdictional error on the part of the Tribunal were established, having regard to the earlier history of litigation between the appellants and the Minister outlined above.

20 The first ground could not give rise to any basis upon which the appeal could succeed. Scarlett FM, in line with authority binding upon his Honour at the time of his decision, concluded that, notwithstanding the failure to provide written notice of certain country information, there was no jurisdictional error because no procedural unfairness was involved. Following the decision of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 (‘SAAP v The Minister’), it is now clear that failure to comply with s 424A(1), at least in relation to a matter that was decisive in the Tribunal’s decision, will be fatal even if, under the general law, there was no procedural unfairness as a consequence. However, the contention before Scarlett FM involved information that clearly fell within s 424A(3)(a), namely, country information that had nothing to do with the appellants as individuals. Accordingly, s 424A(1) had no application. The Full Court therefore refused leave to raise ground 1.

21 The ‘information’ referred to in paragraphs (ii), (iii) and (iv) of ground 2 was either not information that formed part of the reason for the Tribunal’s decisions or, if it was, it was information given to the Tribunal by the husband in connection with his application for review. Accordingly, s 424A had no application to that information. The Full Court therefore refused leave to amend to rely upon any failure to comply with s 424A(1) in relation to that information.

22 However, the information referred to in paragraph (i) of ground 2 is in a different category. Having regard to the lateness of the time when the new grounds were raised on behalf of the appellants, the Minister was granted leave to make further written submissions on the substance of new ground 2(i). Pending receipt of those submissions and the appellant’s response, the Court reserved the question of whether leave to amend to raise new ground 2(i) should be granted. The Court has now received and considered further written submissions from both the Minister and the appellants on the proposed new ground.

23 It is desirable to say something about the substance of the ground now relied upon by the appellants in relation to s 424A of the Act in order to deal with certain of the Minister’s contentions as to the operation of s 424A. That requires some observations about the scheme of the Act in relation to visa applications and review of decisions concerning protection visa applications by the Tribunal as well as the actual visa applications made by the appellants.

24 A non-citizen is not permitted to travel to and enter Australia or to remain in Australia unless that person is a holder of a visa. Section 29(1) provides that the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:

Section 31(1) provides that there are to be prescribed classes of visas. Under s 31(2), as well as the prescribed classes, there are the classes provided for by the succeeding sections of the Act, including s 36. Section 31(3) provides that the regulations may prescribe criteria for a visa or visas of a specified class, which may be a class provided for by, amongst others, s 36. Section 31(4) provides that the regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.

25 Section 36(1) provides that there is a class of visas to be known as protection visas. Under s 36(2) a criterion for a protection visa is that the applicant for the visa is:

Thus, there are different criteria according to whether the applicant claims to be a person to whom Australia owes protection obligations or the spouse or dependent of such a person. It is clear from the terms of s 36(2) that an essential criterion for the grant of a protection visa to a person who does not fall within s 36(2)(a) is that the person is a spouse or dependant of a person who does fall within that paragraph and is the holder of a protection visa.

26 Section 45 provides that a non-citizen who wants a visa must apply for a visa of a particular class. That clearly requires a separate application by each person, irrespective of whether the applicant claims to satisfy s 36(2)(a) or s 36(2)(b). Under s 47(1) the Minister must consider a valid application for a visa. Under s 47(3), the Minister must not consider an application that is not a valid application. Section 46(1) provides that an application for a visa is valid if, and only if, the prerequisites set out in that provision are satisfied, including a requirement that the application satisfies the criteria and requirements prescribed under s 46.

27 Regulation 2.07(1) of the Migration Regulations 1994 (Cth) ("the Regulations") provides that, for the purposes of s 46 of the Act, if an application is required for a particular class of visa, the following matters are set out in the relevant part of Schedule 1:

Under regulation 2.07(3), an applicant must complete an approved form in accordance with any directions on it. Under s 2.07(4) an application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address.

28 Schedule 1 sets out the specific ways in which a non-citizen applies for a visa of a particular class. An application that is not made as set out in Schedule 1 is not valid and will not be considered. Item 1401 in Part 4 of Schedule 1 deals with protection (Class XA) visas. It specifies Form 866 and the visa application charge. Item 1401(3) also provides as follows:

Significantly, the language clearly refers to a separate application in relation to each applicant.

29 Section 411(1)(c) of the Act provides that a decision to refuse to grant a protection visa is an RRT-reviewable decision. Section 412(1) provides that an application for review of an RRT reviewable decision must:

Under s 412(2) an application for review may only be made by the non-citizen who is the subject of the primary decision. Under s 414(1) if a valid application is made under s 412 for review of an RRT reviewable decision, the Tribunal must review the decision. Under s 415(1) the Tribunal may, for the purposes of the review of an RRT reviewable decision, exercise all the powers and discretions that are conferred by the Act on the person who made the decision.

30 Division 4 of Part 7 of the Act deals with the conduct of a review by the Tribunal. Under s 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 the review. The Tribunal may invite a person to give additional information.

32 Clearly, whether a non-citizen applies for a protection visa on the basis of s 36(2)(a) or on the basis of s 36(2)(b), that non-citizen makes a separate application. Further, when a non-citizen applies to the Tribunal for review of a decision to refuse to grant a protection visa, there is a separate application by each non-citizen, whether or not the non-citizen applied under s 36(2)(a) or s 36(2)(b). Of course, if the prerequisite of s 36(2)(b)(ii) is not satisfied in relation to an application under s 36(2)(b), the non-citizen could never succeed in an application for a protection visa or in an application for review of a decision to refuse to grant a protection visa.

33 Nevertheless, no doubt because it is convenient to do so, an application by a non-citizen under s 36(2)(b) will normally be dealt with in conjunction with the application under s 36(2)(a) the success of which is a prerequisite for the grant of a protection visa under s 36(2)(b). Similarly, an application for review by the Tribunal of a decision to refuse to grant a protection visa to an applicant under s 36(2)(b) will normally be dealt with in conjunction with an application for review of the decision to refuse to grant a protection visa to the relevant non-citizen under s 36(2)(a).

34 However, it is at least theoretically possible that an application by a non-citizen under s 36(2)(b) might be unsuccessful even though the application under s 36(2)(a) was successful. For example, the Minister’s delegate might conclude that the non-citizen was neither a spouse nor dependant of a non-citizen who was the holder of a protection visa. Such a decision could be the subject of an application for review by the Tribunal.

35 Where an application for review by the Tribunal of a decision refusing to grant a protection visa under s 36(2)(a) is heard by the Tribunal in conjunction with an application by a non-citizen for a protection visa under s 36(2)(b), there are nevertheless two applications. Again, it is theoretically possible that the Tribunal might on the review grant a protection visa under s 36(2)(a) but affirm the decision to refuse to grant a protection visa to a non-citizen who had applied under s 36(2)(b). Clearly enough, in those circumstances, there would be two decisions. Further, even where the Tribunal on the review affirms decisions by the Minister’s delegate not to grant a protection visa at all, there are two decisions by the Tribunal, one in respect of the application made by the non-citizen who applied under s 36(2)(a) and one in respect of the application by the non-citizen who applied under s 36(2)(b).

36 Thus, it is clear that s 424A(3)(b) must be taken to refer to a particular non-citizen who has applied to the Tribunal for review of a decision to refuse to grant a protection visa. Section 424A will apply separately in relation to each application.

37 A single application in Form 866 was lodged in respect of the husband, wife and son. The husband applied for a protection visa, claiming to be a person to whom Australia has protection obligations on the basis of specific claims made under the Refugees Convention. The wife applied for a protection visa on the ground that she was a member of the husband’s family unit. The application document for the husband, wife and son consisted of several parts. Part B is entitled ‘Persons included in this Application and family composition’. Part B was completed with the names of the husband, the wife and the son. Part C is entitled ‘Application for an Applicant who wishes to submit their own claims to be a refugee’. Part C was completed with particulars of the husband. Part D is entitled ‘Application for a member of the family unit’. Separate Part D forms were completed on behalf of the wife and the son.

38 The separate application on behalf of the daughter consisted of Part B and Part C, each of which was completed in the name of the daughter. Additionally, a further document entitled ‘Additional Information Sheet for Form 866’ was completed on behalf of the daughter. That sheet contained an endorsement that it related to the application by the father.

39 The Minister accepts that the wife’s ‘Family Unit’ application was a separate application from the husband’s substantive protection visa application. That reflects the fact that each non-citizen requires a visa in order to enter or remain in Australia. Further, the Minister accepts that the wife’s application for review by the Tribunal is a separate application from the husband’s application for review by the Tribunal, even though the applications for review are made on the same form and are determined together.

40 The Minister contends, however, that a family unit application is derivative of the substantive application, such that the outcome of the family unit applications, both before the Minister’s delegate and on review by the Tribunal, is dependent upon the outcome of the substantive application. It follows, so the Minister says, that where a substantive application is combined with family unit applications, the family members, including the substantive applicant, have a common interest in the outcome of the Tribunal’s decision on the substantive application. The Minister contends, therefore, that information given in support of the application for review of the decision on the substantive application can properly be regarded as information given in support of the application for review of the decision in respect of the derivative applications. Equally, so the Minister contends, information given in support of the application for review of the decision on the derivative application can properly be regarded as information given in support of the application for review of the decision on the substantive application.

41 The Minister draws attention to the derivative nature of the protection afforded to members of the family unit of a refugee, as reflected in relevant international instruments. Thus, the definition of refugee in Article 1A(2) of the Refugees Convention does not include members of a refugee’s family. However, the final act of the United Nations Conference on the Status of Refugees and Stateless Persons 1951 recommends that governments take necessary measures for the protection of a refugees family, especially with a view to ensuring family unity. The grant of protection visas to such family members under the Act and Regulations implements that recommendation (see Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 at [25]).

42 Given those considerations, the Minister contends that the evidence given by the wife in the present case ought properly to be regarded as falling within the exception in s 424A(3)(b) of the Act. Under that provision, s 424A(1) does not apply to information that the applicant gave for the purpose of the application. The Minister says that, when applied in the context of applications to review a decision refusing substantive and derivative family unit applications, the reference in s 424A(3)(b) to ‘the application’ ought properly be read so as to refer to both the substantive application and any derivative applications. Similarly, the reference to ‘the applicant’ should be read so as to refer to the applicants in respect of each of those applications, namely, the husband, the wife and the son in the present case.

43 Alternatively, the Minister contends that information given by the wife, as an applicant making a family unit application derivative on the husband’s application, ought properly to be characterised as information that the applicant on the substantive review application, namely, the husband, gave for the purpose of the substantive application. Thus, it is clear, for example, that information provided by a third party, but given to the Tribunal by an applicant in response to an invitation under s 424 of the Act, under which the Tribunal may invite a person to give additional information, falls within the exception in s 424A(3)(b). Further, evidence given by a witness at the request of an applicant under s 426 would be information given by the applicant for the purposes of s 424A(3)(b). Equally, the Minister contends, information given by the applicant on a derivative application ought not to be treated any differently, since the interests of those making family unit applications align with those of the substantive applicant. The former are derived from the latter.

44 The Minister invites the Court to distinguish SAAP v The Minister. The information that was held to engage s 424A in that case was evidence given by the substantive applicant’s eldest daughter. However, that daughter had already been granted a protection visa and was not applying as a member of the family unit of her mother and was not a witness that her mother proposed to call. In those circumstances, the daughter was completely unrelated to the mother’s application and appears to have been called by the Tribunal to give evidence simply because she happened to be present during the hearing.

45 The analysis set out above of the visa application provisions and the Tribunal review provisions suggests that the Minister’s contentions may not be well founded. It seems reasonably clear from that analysis that, even if the criterion referred to in s 36(2)(b) depends upon a favourable decision in relation to a person who falls within s 36(2)(a), each application for review by the Tribunal is separate and independent. It would appear that each of the wife, the daughter and the son must be treated as a separate applicant to the Tribunal for review. If that is the case it would follow that the Minister’s basis for distinguishing SAAP v The Minister has no foundation.

46 The Minister also contends that, even if the wife’s evidence was not excluded by s 424A(3)(b) in relation to the husband’s application, the wife’s evidence did not fall within s 424A(1). That is to say, the wife’s evidence was not, on a fair reading of the Tribunal’s reasons, information that was the reason or part of the reason for affirming the delegate’s decision in relation to the husband’s application. The Minister said that, while the Tribunal referred to certain discrepancies between the evidence given by the wife and by the husband, ultimately the aspect of the wife’s evidence that the Tribunal relied upon is that the wife made ‘no reference to the claimed shooting of the house a week before departure’. That event was regarded as being of such significance that the Tribunal did not consider that the wife could have overlooked it if, in fact, it had occurred. That, in turn, led the Tribunal to conclude that the reason why it was not commented upon was because it had not occurred. The Minister contends that that process of reasoning does not involve any positive acceptance of evidence given by the wife. Rather, the Tribunal simply relied upon failure to mention the event in question. The Minister says that such a bare omission or gap in evidence is not ‘information’ within s 424A(1), (see WAGP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 266; (2002) 124 FCR 276 at [26]- [29] and [33]).

47 In response, the appellants contended that whether the wife was, in substance, the same applicant as the husband was irrelevant. They contended that the ability of the Tribunal to avoid injustice by ensuring an opportunity for clarification when evidence from different sources given orally is on its face contradictory or inconsistent is the relevant question. The appellants say that whether the witness is called by the Tribunal or the applicant is irrelevant since there is no obligation on the Tribunal to take evidence from a person named by an applicant pursuant to s 426. Rather, the calling of evidence at a hearing before the Tribunal is for the Tribunal in accordance with the inquisitorial nature of the review process. The appellants rejected the Minister’s contention that the wife’s evidence was a bare omission and argued that the fair reading of the Tribunal’s reasons was that it was the timing of the event and not the event itself that was regarded as significant.

48 The proposed new grounds could have been raised before Driver FM. The appellants did not adduce any evidence either before Scarlett FM or before the Full Court to explain why the grounds now sought to be raised were not raised before Driver FM. For example, no attempt was made to explain the circumstances that led to the abandonment of their application to the High Court for special leave to appeal and the commencement of the second proceeding in the Federal Magistrates Court. Further, there was no evidence as to whether the appellants had received legal advice in connection with the original proceeding.

49 The fact that the appellants were unrepresented before Driver FM is not of itself a basis for permitting the re-litigation on different grounds of the very same question in subsequent proceedings. The issue before Driver FM, and the issue in the appeal from Driver FM’s orders, was whether the decisions of the Tribunal of 5 March 2002 were affected by jurisdictional error. That question has been determined adversely to the appellants.

50 Counsel for the appellants pointed to the fact that the grounds now sought to be raised depend upon the decision of the High Court in SAAP v The Minister and on the earlier decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476. Both of those decisions were given after the appeal from the first proceeding was dismissed in 2002. However, it would have been open to the appellant to argue the principles that were accepted in those cases. Subsequent change in case law does not necessarily justify re-litigating decided issues, although it is a factor to be taken into account.

51 In the proceeding before Scarlett FM, the Minister did not seek to rely upon issue estoppel or res judicata as an answer. Rather, the Minister simply submitted that, in the exercise of its discretion to grant relief, the Court should consider the long delay between the decisions of the Tribunal and the commencement of the second proceeding in the Federal Magistrates Court. The Minister sought to characterise the second proceeding as an abuse of process, having regard to the earlier litigious history.

52 Whether or not an issue estoppel or res judicata answer would be available, interest reipublicae ut sit finis litium. Even if there were some legal merit in the proposed new grounds, there is little substantive merit in them. As indicated above, the appellants have made no attempt to explain why the proposed grounds were not raised before Driver FM or in the appeal from Driver FM’s orders.

53 In any event, the Tribunal concluded that the family could relocate to another part of Bangladesh where they would not be at risk. That would be an independent reason for concluding that Australia does not have protection obligations to the appellants so as to entitle them to the grant of protection visas.

54 Leave to raise the new ground should be refused and the appeal should be dismissed with costs.

I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Nicholson and Emmett.

Counsel for the Appellant:	A Slattery
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	8 November 2005
Date of Judgment:	22 February 2006

Federal Court of Australia - Full Court Decisions

SZBWJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 13 (22 February 2006)