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Federal Court of Australia - Full Court |
Last Updated: 24 August 2009
FEDERAL COURT OF AUSTRALIA
SZMKG v Minister for Immigration and Citizenship [2009] FCAFC 99
MIGRATION – whether by reason of
the terms of s 422B of the Migration Act 1958 (Cth), Div 4 of
Pt 7 of that Act provides a comprehensive procedural code in respect of the
requirements of procedural fairness that must be accorded
to review applicants
in the conduct of reviews under that Division to the exclusion of the common law
natural justice hearing rule
– whether the principles invoked by the High
Court in Applicant VEAL of 2002 v Minister for Immigration and
Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 are encompassed
within the common law natural justice hearing rule within the meaning of
s 422B – VEAL distinguished – the substance of matters
which the Refugee Review Tribunal arguably was obliged to disclose to the review
applicant
was adequately disclosed in the reasons of the delegate whose decision
was under review – an additional reference in the Tribunal’s
decision to another case which was said by the Tribunal not to have been taken
into account by the Tribunal in its decision was not
a reference in terms which
required disclosure of facts and matters concerning this other case –
appeal dismissed
Migration Act 1958 (Cth), ss 422B,
424A, 424AA and 425
SZMKG
v Minister for Immigration and Citizenship [2008] FMCA 1686 affirmed
Applicant VEAL of 2002 v Minister for Immigration and Multicultural
and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 distinguished
Kioa v West
[1985] HCA 81; (1985) 159 CLR 550 referred to
Minister for Immigration and
Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214
followed
Minister for Immigration and Multicultural and Indigenous Affairs
v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 cited
NIB Health Funds Ltd
v Private Health Insurance Administration Council [2002] FCA 40; (2002) 115 FCR 561
cited
Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9]
[1990] NSWCA 154 cited
Re Minister for Immigration and Multicultural
Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 cited
SZBEL v Minister
for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
cited
VXDC v Minister for Immigration and Multicultural and
Indigenous Affairs [2005] FCA 1388; (2005) 146 FCR 562 followed
Zubair v Minister for
Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344
cited
SZMKG v MINISTER FOR IMMIGRATION
AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1950 of
2008
BENNETT, REEVES AND FOSTER JJ
21 AUGUST
2009
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA
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GENERAL DIVISION
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AND:
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THE COURT ORDERS THAT:
2. The appellant pay the first respondent’s costs of and incidental to
the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
The text of entered orders can be located using Federal Law
Search on the Court’s website.
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NEW SOUTH WALES DISTRICT REGISTRY
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GENERAL DIVISION
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NSD 1950 of 2008
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF
AUSTRALIA
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BETWEEN:
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SZMKG
Appellant |
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AND:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
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JUDGES:
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BENNETT, REEVES AND FOSTER JJ
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DATE:
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21 AUGUST 2009
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
BENNETT AND FOSTER JJ:
INTRODUCTION
1 The appellant is a citizen of the People’s Republic of China (the PRC). He first entered Australia on 7 September 2007 by aircraft through Brisbane International Airport on a passport issued by the Republic of China (Taiwan).
2 The passport on which the appellant travelled to Australia (the Taiwanese passport) was issued in a name which is not the appellant’s real name and records details in respect of the passport holder which do not relate to the appellant at all. The appellant was not the true owner of the Taiwanese passport.
3 The Taiwanese passport may be a genuine document issued to a real person or it may be a forgery. The information which was before the decision-makers whose decisions are under challenge in these proceedings tends to support the thesis that the Taiwanese passport is a genuine document which was misused corruptly in order to facilitate the appellant’s entry into Australia.
4 On 19 October 2007, the appellant made application to the Department of Immigration and Citizenship (the Department) for a Protection (Class XA) visa (protection visa). In that application, the appellant recorded that he had been assisted in the task of completing the application by Priscilla Yu, a registered migration agent. In that application, the appellant included his true name in full, his correct date of birth and his correct place of birth. In addition, in answer to the question:
What other names have you been known by?the appellant made reference to the name of the passport holder shown in the Taiwanese passport as well as to the date of birth of that person shown in that document. In documents forming part of his protection visa application, the appellant also said that he was a Chinese Han and that he was a Christian. He said that, as at 19 October 2007, he was living in Auburn NSW.
5 The appellant subscribed his oath to a Statutory Declaration on 19 October 2007 which was submitted as part of his protection visa application.
6 In that Statutory Declaration, the appellant claimed that he had led demonstrations against a shipping company (which we shall call D Company) which had been his employer and that he had been persecuted in the PRC by local police. He said that he had to leave the PRC because of these matters and did so with the help of others. He said that he had gone to Taiwan by boat and then used the Taiwanese passport to come to Australia.
7 The Statutory Declaration contained no real details of the alleged persecution or any particulars of the means by which the appellant had managed to escape from the PRC and travel to Australia.
8 For some years, the appellant had held a Seafarer’s Passport issued by the PRC. He was allowed to travel outside the PRC as a seaman during the period from August 2004 until at least 13 April 2007. From time to time in that period, D Company assigned him to work as a seaman for various shipping companies based in the PRC and South East Asia. He said that, from May 2007, he began to concentrate on his dispute with D Company. This dispute was the catalyst for the appellant’s involvement in demonstrations against D Company.
9 A delegate of the Minister for Immigration and Citizenship (the delegate) interviewed the appellant on 4 January 2008 (the interview). On 9 January 2008, the delegate refused the appellant’s application for a protection visa. The delegate gave reasons for that refusal on the same day. The delegate was not satisfied that the appellant was a person to whom Australia owed protection obligations within the meaning of the relevant legislation.
10 On 12 February 2008, Ms Yu, acting as the appellant’s migration agent, lodged with the Refugee Review Tribunal (the Tribunal) an Application for Review of the delegate’s decision. On 25 February 2008, the Tribunal forwarded to the appellant’s migration agent a formal invitation to appear before the Tribunal. That invitation recorded the fact that a hearing was to be held before the Tribunal on 4 April 2008.
11 On 4 April 2008, there was a hearing before the Tribunal. In a decision signed on 8 May 2008 and delivered on 20 May 2008, the Tribunal affirmed the decision of the delegate not to grant a protection visa to the appellant. That decision was supported by reasons which were also delivered on 20 May 2008.
12 On 16 June 2008, the appellant brought proceedings in the Federal Magistrates Court in which he sought relief by way of the constitutional writs. The Minister for Immigration and Citizenship (the Minister) was the first respondent in those proceedings. The Tribunal was joined as the second respondent. That application was heard by Barnes FM on 25 November 2008 and dismissed on the same day.
13 In the present appeal, the appellant seeks to overturn the Federal Magistrate’s decision and the Tribunal’s decision. He claims an order remitting the matter to the Tribunal, differently constituted, to be determined according to law.
THE DELEGATE’S DECISION
14 The delegate had before him the Department’s file relating to the appellant. Within that file there were three documents bearing title Overseas Compliance Officer Information Report (Taipei) all of which were prepared by the same officer and which were dated 25 October 2007 (TPE2007-23), 29 October 2007 (TPE2007-24) and 3 January 2008 (TPE2008-1) respectively. The specific titles of those reports were respectively: PRC imposter identified in Taiwan tour group; Suspect PRC imposter identified in Taiwan tour group; and Taiwan people smuggling syndicate members under investigation. We shall refer to these reports as the OSCO reports.
15 The first of these reports specifically related to the appellant. It also identified a suspect tour escort/tour facilitator by name. We shall call that suspect tour escort H and the organisation for whom he worked X. In this first report, the author said:
The case involves a look alike imposter and the Taiwan passport used has not been altered. ... Bureau of Consular Affairs has confirmed that there is no record of this passport [referring to the Taiwanese passport] departing Taiwan.16 Also in the same report, under a heading OSCO COMMENT, the following was said:
This case offers further confirmation that Taipei continues to be at the centre of an organised passport selling operation that has links with a people smuggling operation involving PRC nationals. The operation is presenting a significant threat to the integrity of the ETA caseload. This case spotlights the role of ETA agents in processing arrangements. It is of particular concern that the ETA travel agent did not report the case to this office. An appropriate response in the context of a broader strategy in relation to the exploitation by people smuggling organisers of ETA arrangements is being considered. Investigation of those who have recruited Taiwan passport sellers and escorts is ongoing. The fact that the suspect escort in this case and that described in TPE2007-24 (see also Imtel:836410) have come to notice in association with known escorts indicates a limited range of organisation that appears to involve relatively few players (that may be well known to the authorities). The role of the escort is assumed to involve carrying the passport (that had been used at check in to obtain a boarding pass – possibly by the rightful holder) through immigration clearance and handing it to the PRC imposter. Any role of the escort onshore has yet to be established. The agent associated with the onshore application ie Pricilla International [referring to Ms Yu’s organisation] is featuring significantly in the applications of PRC imposters who have used Taiwan documents and would present an important avenue for further investigation onshore both with the agent and the clients involved.17 The second of the above reports dealt with a suspected impostor who was not the appellant. However, the suspect tour escort/tour facilitator (H) was mentioned in this report as was the organisation X. The following was included in this report:
Authorities have confirmed that there is no record of the passport held by the absconder departing Taiwan which strongly suggests the absconder is another PRC national who has been smuggled into Australia by a Taiwan escort. This report provides post specific information on the absconder/suspect passport seller and suspected Taiwan escort who has been identified in another case of entry on 07 September 2007 [TPE2007-23 refers].18 In this report, the following was written under the heading OSCO COMMENT:
This case offers further confirmation that the Taipei ETA caseload continues to be the subject of attention by an organised passport selling operation that has links with a people smuggling operation involving PRC nationals that presents a significant threat to the integrity of the ETA caseload as well as border security. The fact that the suspect escort in this case and that described in TPE2007-23 (see also Imtel:83641) have come to notice in association with known escorts indicates a limited range of organisation that appears to involve relatively few players (that may be well known to the authorities). The role of the escort in Taiwan is assumed to involve carrying the passport (that had been used at check in to obtain a boarding pass – possibly by the rightful holder) through immigration clearance and handing it to the PRC imposter. Movement of the PRC national from China to Taipei remains unknown at this stage – though previous cases suggest the involvement of Taiwan escorts. This case spotlights the role of ETA agents in processing arrangements. A broader strategy in relation to the exploitation by people smuggling organisers of ETA arrangements is being considered that will identify sub agents. This may provide some guide to those who are recruiting Taiwan passport sellers and escorts.19 In the third of the reports referred to above the author set out the results of investigations into a people smuggling syndicate in Taiwan. In that report, the author noted that investigations in Taiwan had confirmed the involvement of two Taiwanese escorts and two Taiwanese passport sellers. It was thought that the suspect tour escorts were implicated in taking steps to shepherd the PRC nationals into Australia by limiting their interaction with tour leaders and other tour members. The report stated that H (the suspect tour escort involved with the appellant) had booked passage for himself and the appellant at the end of August 2007 and had joined the tour to Australia on 6 September 2007. The suspect tour escort had paid the deposit and provided all relevant documentation. The report noted that the Taiwanese passport sellers were not co-operating as at the date the report was prepared.
20 Under the heading OSCO COMMENT, the following was said:
This case is one of several that are currently being considered for prosecution in Taiwan (see also TPE2007-33 and TPE2007-27) and further investigations may identify higher level organisers involved in smuggling PRC nationals into Australia using Taiwan passports and escorts both in Taiwan and the PRC. The individuals identified including the passport sellers (who are most likely highly complicit) are likely to be aware of those more significantly involved in the organisation. Connections between passport sellers and escorts have yet to be established. The escorts’ connections with PRC organisers as yet remain unclear. The details provided by NIA add considerably to what is already known about the mo of PRC imposter smuggling through Taiwan and may be useful to relevant staff onshore when questioning PRC imposters travelling on Taiwan documents. Investigations onshore have the potential to provide useful information in relation to organisers that could also be productively utilised by investigators in Taiwan as well as the PRC.21 In the reasons of the delegate (at p 5), the delegate said that he was not satisfied that the appellant had provided a plausible or credible account of his claimed circumstances referable to a genuine and well-founded fear of persecution should he return to the PRC. The delegate referred to a number of factual matters which, in the opinion of the delegate, had not been consistently and satisfactorily explained by the appellant. At pp 6–7 of his reasons, the delegate said:
Whilst I accept that the applicant travelled to Australia on a false passport, I am not satisfied that this was for any reason other than that he would not have satisfied the criteria for the visa if he had applied in his own name. I informed him during the interview that there are reports in his file that the Taiwanese passport he used to enter Australia was not immigration cleared in Taipei. He insisted that he was immigration cleared in Taipei and he used the same Taiwanese passport for that. The applicant’s claims bear many similarities to that of other PRC Protection visa applicants who have lodged their application in NSW, mostly from Fujian province. The similarities are that the applicant has been wronged in some way and in some cases the applicant and the associates approach government authorities. The applicant then plays a part in organising a protest and then claims to have been subsequently arrested and detained, and to have secured release by way of a substantial bribe. Majority of these cases have been prepared by the same Migration agent. A detailed analysis of all applications lodged over the last two years would most likely add considerably to the above sample. Available information confirms that the rate of migration, both legal and illegal out of Fujian to western countries over a long period of time is disproportionately bigger than from the remaining provinces for a variety of social and or economic reasons (5.11). I would regard the applicant as merely a part of this migration movement. Due to the above facts, I find that the applicant does not have a profile which would make him of significant adverse interest to the Chinese authorities. Therefore, for the above reasons, I find that the applicant has not had a well-founded fear of persecution for a Convention reason should he return to China in the reasonably foreseeable future. I have considered the totality of the applicant’s claims and circumstances in assessing whether a real chance of persecution exists in this case. For the reasons given above, I find that the applicant does not face a real chance of Convention based persecution if he returns to China. Therefore, I find that his fear of Convention based persecution in China is not well founded.22 In light of those remarks, the delegate found that the appellant did not have a genuine fear of persecution should he return to the PRC in the reasonably foreseeable future and that therefore he was not entitled to a protection visa.
THE TRIBUNAL’S DECISION
23 After briefly stating by way of introductory remarks the nature of the application and the relevant law, the Tribunal addressed the appellant’s claims and the evidence put forward in support of those claims. At [19] of the Tribunal’s reasons, the Tribunal said:
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.24 At [20]–[35] of its reasons, the Tribunal summarised the contents of the appellant’s Statutory Declaration. In that document, the appellant asserted that:
1. In January 2006, he suffered a serious accident whilst working as a seaman. One of his fingers was cut off in this accident. D Company refused to pay his medical expenses and also failed to provide him with any appropriate worker’s compensation. Another company had paid some medical expenses but regarded the payment as a loan to the appellant which had to be repaid. That other company pursued the appellant for repayment of that loan. In April 2007, the appellant repaid the other company the funds which it had claimed. From May 2007, the appellant commenced a campaign against D Company seeking to recover his medical expenses and appropriate compensation. He actively recruited other injured workers who had been employed by D Company with a view to organising a campaign for better treatment.
2. On 16 July 2007, the appellant took about 20 former employees of D Company who had suffered unfair treatment at its hands to that company’s head office and conducted a protest there. He said that, on that occasion, he was arrested by local police and was detained for approximately one week between 16 July and 27 July 2007. He said that during that period:
... I was subjected to torture and mistreatment by the police. Although I was released after my father bribed the police, I could not give up. I really could not believe that a government, which openly declared to protect our ordinary people’s basic human rights and to attack corruption, would never give me the justice.
3. On 9 August 2007 the appellant organised a further protest, this time with about 100 people who comprised victims of D Company and their relatives and friends. He distributed about 5,000 copies of an open letter to the public in which he advocated that the government investigate D Company as well as the corrupt police whom he asserted had been bribed by D Company. At this sit-in protest, other persons came to watch and many stood around the protestors offering their support. Not long after the protest started, many police arrived. They beat the protestors with sticks and many were wounded. More than 10 protestors were arrested.
4. He said that he escaped the scene and avoided being arrested but had then had to go into hiding. He said that, while he was in hiding, the police had visited his home with an arrest warrant and had threatened his family on many occasions.
25 The last two paragraphs of his statutory declaration were in the following form:
17. As a person who has been regarded as an organiser for anti-government protest, it would be definitely impossible for me to obtain a passport in my genuine identity. Also, I believe that my name must be on the black list at the airport. Therefore, I am unable to depart China legally. Fortunately, many kind people felt very much sympathy with my dangerous situation. They tried every means to help me. Finally, I got a chance to go to Taiwan by a boat; and then used a Taiwan passport to come to Australia.18. It is apparently that I must be subjected to persecution on my return; and therefore, I have to seek protection in Australia.
26 At [37] in its reasons, the Tribunal said:
Other material in DIAC file There is material on file relating to inquiries made by the Department and the applicant was interviewed by the Department. The Tribunal has not, in any way, used this information in an adverse manner to the applicant.27 The Tribunal then summarised the evidence which the appellant gave at the hearing before the Tribunal.
28 At [65] of its reasons, the Tribunal said:
On the basis of the available information, the Tribunal accepts as plausible that the applicant had worked as a seaman for various shipping companies. However, in consideration [sic] the evidence as a whole and for the following reasons, the Tribunal is not satisfied that the applicant was involved in the anti-employer activities in which he claimed to be involved. For reasons to be explained below, the Tribunal is satisfied that the applicant has fabricated those central claims in order to bolster his application for a protection visa.29 The Tribunal said that the appellant had given to the Tribunal the impression of not being forthcoming about important aspects of his claims. In particular, the Tribunal was not satisfied that the appellant had been frank about the means by which and the circumstances in which he had left the PRC. The Tribunal said that his responses about significant aspects of his claims were internally inconsistent and inconsistent with claims previously made in writing. The Tribunal then listed eight separate matters about which it said it had concerns.
30 It is not necessary for us to set out in detail the eight evidentiary matters about which the Tribunal had concerns. Some of these may be regarded by a reasonable decision-maker as being somewhat trivial. However, there is no doubting that certain of the matters of concern would have been significant to any reasonable decision-maker. Some of these factual matters went to the heart of the appellant’s claims. For example, there were inconsistencies between the various versions given by the appellant of what had occurred on 16 July 2007 and again on 9 August 2007 when he said that he had been involved in protests against D Company.
31 Ultimately, the Tribunal was not satisfied that the appellant had been involved in any of the claimed activities. The Tribunal also did not accept that the appellant and others were victims of D Company or that, in order to strive for his basic human rights, the appellant had actively contacted other victims and the families of those victims and had encouraged them to protest with him in July and August 2007.
32 Towards the end of the Tribunal’s reasons, the Tribunal said (at [79]):
The Tribunal is dealing with another case with similar circumstances to the applicant but with different claims. The Tribunal has not in any [sic] used this matter, in an adverse manner to the applicant.33 The Tribunal then held that the appellant did not have a well-founded fear of persecution and affirmed the decision of the delegate not to grant a protection visa to the appellant.
THE DECISION OF THE FEDERAL MAGISTRATE
34 At [1]–[19] of her reasons (SZMKG v Minister for Immigration and Citizenship [2008] FMCA 1686), the Federal Magistrate summarised the essential findings of the Tribunal. At [17] and [18], the Federal Magistrate said:
17. The Tribunal recorded that it was dealing with another case with similar circumstances to the applicant, but with different claims. It stated that it had not in any way used this matter in a manner adverse to the applicant.18. The Tribunal concluded that it was not satisfied the applicant had suffered any Convention-related harm or that there was a real chance he would suffer any such harm in the reasonably foreseeable future.
35 The Federal Magistrate noted that the challenge before her mounted by the appellant was essentially a merits review of the Tribunal’s decision. She held that such a review was not possible before her.
36 She then went on to consider the allegation that the Tribunal’s decision was affected by bias. The learned Federal Magistrate took the view that the bias issue before her involved the pre-judgment principle. She also considered the suggestion that bias could be demonstrated by the Tribunal’s refusal to allow the appellant a more lengthy adjournment of the hearing before it than was, in fact, allowed. She rejected the allegations of bias based upon both of those grounds.
37 The Federal Magistrate then considered whether or not there was jurisdictional error arising from an alleged failure on the part of the Tribunal to comply with s 424AA of the Migration Act 1958 (Cth) (the Act). She held that the Tribunal had complied with the requirements of s 424AA(b) and that, in any event, non-compliance with s 424AA(b) of the Act did not result in jurisdictional error but simply leads to the non-engagement of s 424A(2)(a). She also held that the matters discussed by the Tribunal with the appellant in the Tribunal hearing, such as inconsistencies in his evidence, were not "information" within s 424A(1) or s 424AA of the Act or were otherwise outside the obligation in s 424A(1) by virtue of the exceptions in s 424A(3)(b) and s 424A(3)(ba) (see [42] of the Federal Magistrate’s reasons).
38 The learned Federal Magistrate then raised what she described as "... aspects of the Tribunal decision relevant to a consideration of s.424A". At [43] of her reasons, she said:
... In describing the material before it the Tribunal referred to the fact that there was "material" on the Departmental file relating [sic] inquiries made by the Department and the fact that the applicant was interviewed by the Department. The Tribunal stated that it had not in any way used this information in an adverse manner to the applicant.39 The Federal Magistrate then considered whether or not there was something about the interview or the use made of the information provided by the appellant during that interview which somehow impermissibly affected the Tribunal’s reasoning. The Federal Magistrate held that the appellant had failed to establish that there was information in the interview that was information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review within the meaning of s 424A (see [45] of the reasons). Ultimately, at [45] of her reasons, the Federal Magistrate said:
... On the material before the Court in this case it has not been established that there was a failure by the Tribunal to comply with s.424A by virtue of the fact that there was a Departmental interview which the Tribunal stated it did not use in an adverse manner to the applicant.40 At [46] and [47] of her reasons, the learned Federal Magistrate said:
46. There is also material on the Departmental file relating to inquiries made by the Department which is not addressed further in the Tribunal reasons for decision. The Court Book contains material consisting of Overseas Compliance Officer Information Reports about the use of false Taiwanese passports by nationals from the People’s Republic of China who appeared to have been smuggled into Australia by a Taiwanese escort. There is a reference in that material to the use of the passport on which the applicant claimed that he travelled to Australia. If that is the information to which the Tribunal referred, it is not information which contains any rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owed protection obligations. The fact of such information is not of adverse relevance to the substance of the applicant’s claims for protection and the assessment of the existence of a claimed well-founded fear of persecution. Insofar as it is relevant to have regard to the Tribunal reasons for decision, the Tribunal accepted the applicant’s claims about his identity and use of a Taiwanese passport. While it indicated that unlawful use of a Taiwanese passport could raise doubts about the other documents provided by the applicant, it assessed his claims on the basis that he was the person he claimed to be from the People’s Republic of China. Nor was information about the Department’s investigation of the use of such passports relevant to the Tribunal’s conclusion in relation to unlawful use of a Taiwanese passport and whether if the applicant were to return to China, he would be persecuted on that basis. The Tribunal accepted this claim as plausible but, as it indicated to him in the hearing, was of the view that this would be as a result of a law of general application and would not be persecution as contemplated by the Refugees Convention. The existence of such information and the Tribunal’s reference to material relating to inquiries made by the Department does not give rise to a breach of s.424A(1).47. Finally, in the findings and reasons part of its decision, the Tribunal observed that it was dealing with another case with similar circumstances to the applicant but with different claims, but that it had not used this material in an adverse manner to the applicant. There is no other evidence before the Court in relation to such other case. There is nothing in the Tribunal reasons for decision to give rise to concern about the application of s.424A(1). On the limited information before me, this is not a case in which the Tribunal was under an obligation to put to the applicant that it was dealing with another case with similar circumstances but with different claims. The applicant did not contend that there were contraventions of s.424A on any of these bases. On the limited material before the Court these circumstances are not such as to establish jurisdictional error on the part of the Tribunal.
41 In light of these findings, the Federal Magistrate dismissed the appellant’s application before her.
THE NOTICE OF APPEAL
42 The appellant was not represented at the hearing before us. His Notice of Appeal is signed by him personally. The Grounds of Appeal raised by the appellant may be summarised as follows:
(a) The Tribunal had made its decision not by reference to the evidence actually before it but on the basis of unwarranted assumptions and was guilty of apprehended bias vis-à-vis the appellant (Ground 1);
(b) The Tribunal incorrectly assessed the appellant’s credibility (Grounds 1, 2 and 3);
(c) The appellant was denied procedural fairness at the Tribunal hearing by not being allowed a longer adjournment than was allowed when the appellant was palpably confused and overcome by stress (Ground 4);
(d) The Tribunal failed to comply with its obligations under s 425 of the Act (Ground 4);
(e) The Tribunal failed to comply with s 424AA of the Act (Ground 5);
(f) The Tribunal failed to comply with s 424A of the Act (Ground 6); and
(g) The Federal Magistrate erred in not overturning the Tribunal’s findings (Ground 7).
43 These grounds were supported by submissions made by the appellant in writing prior to the hearing of the appeal. The appellant said very little at the hearing of the appeal.
CONSIDERATION
44 Before us, the appellant contended that the Tribunal failed to accord procedural fairness to him at its hearing and that the Federal Magistrate erred in failing to find that this was so. The appellant cited [19], [37] and [79] of the Tribunal’s reasons (as to which see [23], [26] and [32] above. He then submitted:
3. In my case, one of the important issues is that I came to Australia on a Taiwanese passport. I had to use a Taiwanese passport solely for the reason that I was unable to obtain my own Chinese passport in my genuine name because I have been on the "black list" of the Chinese government.4. Although the Tribunal failed to notify me and failed to provide me the materials, which "referred to in the delegate’s decision" and which was "on file relating to inquiries made by the Department and the applicant was interviewed by the Department", I am sure that the materials must be in relation to my abovementioned central claim that I came to Australia on a Taiwanese passport.
5. What is important to notify me and to provide me the materials in my case is first that using a Taiwanese passport instead of a Chinese passport in my genuine name is significant evidence that my name has been put on the "black list" of the Chinese government owing to my significant role played in organizing anti-government movement in China. Secondly, the materials bore on whether I was entitled to a protection visa (VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88).
6. Obviously, according to the decision on VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88, based on the procedural fairness to me, the Tribunal should tell me what was the materials in relation to my case, asked me to respond to those materials. It is no doubt that my response to those materials would then have had to be considered by the Tribunal. That may well leave the Tribunal in a position where it could not decide whether those materials made had substance. But the procedure outlined would be fair to the appellant and it would be a procedure which accommodated what Brennan J described in Kioa as the "problem of confidentiality". Although it may be accepted that the Tribunal sought to act fairly, the procedure it in fact adopted was not fair.
(Original emphasis.)
45 In essence, the appellant submitted that:
(a) The Tribunal should have provided (but did not provide) to the appellant the materials referred to at [19] and [37] of its reasons and should have made disclosure (but did not) of the relevant facts and circumstances of the "other case" referred to in [79] of its reasons;
(b) The undisclosed information and material may well have been and probably was significant to the appellant’s case because, if, as suspected by the appellant, the material concerned or related to his use of someone else’s passport (ie the Taiwanese passport), that material bore upon the likelihood that his story was true and thus was relevant to the question of whether the appellant had a well-founded fear of persecution in the PRC for a Convention reason; and
(c) The mere fact that the Tribunal stated that it had not made use of any of this material was not sufficient to negate the requirements of procedural fairness to which the appellant was entitled. In this case, those requirements compelled full disclosure of all of the material which the Tribunal had in mind when it made the remarks which it did at [19], [37] and [79] of its reasons.
46 It may be thought that the appellant’s submissions travelled beyond the Grounds of Appeal specified in his Notice of Appeal. However, his submissions are arguably supported by Grounds 1, 4 and 5. In any event, the Minister took no point to the effect that the appellant could not make the arguments summarised at [44] and [45] above and we see no difficulty in dealing with the appeal upon the basis that those arguments encapsulated the appellant’s case on appeal.
47 The appellant did not seek to support his other Grounds of Appeal by making any submissions referable to any of them. We do not think that the appellant has made out any of these other grounds. We shall briefly address them later in these reasons after we have dealt with the procedural fairness ground which was pressed by the appellant.
48 The Minister submitted that the reasoning of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 was no longer apt when consideration is being given to the Tribunal’s procedural fairness obligations in respect of applicants for review who seek review of protection visa decisions pursuant to Pt 7 of the Act.
49 The reasons advanced in support of this submission may be shortly stated as follows:
(a) Section 422B(1) was introduced into the Act by Act No 60 of 2002. This Act received the Royal Assent on 3 July 2002 and commenced the next day. The Review Application in VEAL [2005] HCA 72; 225 CLR 88 was determined by the Tribunal on 14 June 2002 and was thus not subject to s 422B(1). The High Court in VEAL [2005] HCA 72; 225 CLR 88 was considering a statutory scheme which did not include s 422B(1) or any provision of like effect;
(b) Section 422B(1) provides that Div 4 of Pt 7 of the Act:
... is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.(c) The effect of that provision is that Div 4 of Pt 7 provides a comprehensive procedural code in respect of the requirements of procedural fairness that must be accorded to review applicants in the conduct of reviews under that Division to the exclusion of the common law natural justice hearing rule (see VXDC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1388; (2005) 146 FCR 562 at [22]–[31] (pp 568–570); and Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 at [60]–[70] (pp 225–226));
(d) The principles invoked by the High Court in VEAL [2005] HCA 72; 225 CLR 88 are part of the common law procedural fairness principles that are encompassed within what is described in s 422B(1) as "the natural justice hearing rule";
(e) In the present case the Tribunal’s procedural fairness obligations are limited to putting information that would be the reason or part of the reason for affirming the decision under review (subject to certain exceptions, as to which see s 424A(3)) to the appellant in writing pursuant to s 424A(1), or, orally during the hearing, pursuant to s 424AA, and to affording to the appellant a fair and reasonable opportunity of ascertaining and of responding to those issues which are determinative of his application during the course of the hearing (s 425 of the Act);
(f) The information and material which was the subject of the references made by the Tribunal in [19], [37] and [79] of its reasons were not the reason nor part of the reason for the Tribunal’s decision to affirm the delegate’s decision to refuse to grant a protection visa to the appellant;
(g) In addition, and in any event, the information contained in the OSCO reports was general country information and was therefore excepted from the requirements of s 424A(1) by s 424A(3)(a) and similarly excepted from the requirements of s 424AA if that section was engaged in the present case (see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572); and
(h) Accordingly, none of ss 424AA, 424A or 425 was engaged in the present case and there was no room for any residual operation of the common law natural justice hearing rule.
50 We think that these submissions are correct and we accept them. The appellant therefore fails in the principal arguments advanced by him to this Court.
51 However, even if we are wrong in the conclusions which we have reached, we think that the present case should be distinguished from VEAL [2005] HCA 72; 225 CLR 88.
52 In the present case, the delegate recorded in his reasons that he had informed the appellant during the interview that there were reports in the Department’s file which suggested that the Taiwanese passport was not immigration cleared in Taipei. When informed of this, the appellant had asserted that the Taiwanese passport had been immigration cleared in Taipei. The Taiwanese passport used by the appellant appears to have been stamped in Taipei by immigration authorities on 6 September 2007 and thus appears to support the appellant’s version.
53 In his reasons, the delegate then referred to other protection visa applications of which he was aware which bore many similarities to the circumstances asserted by the appellant in the present case: see [21] above. The delegate did not identify the applications which he had in mind when he made these remarks and did not provide any details of the claims made in these other applications. However, the substance of the "similarities" identified by the delegate and taken into account by him was made clear by him in his reasons. Furthermore, the delegate also made clear that he considered the fact that there was a common theme being advanced on behalf of PRC nationals from Fujian province in the many protection visa applications to which he referred to be a significant reason for not accepting the stories advanced by applicants who came from this part of the PRC in support of their claims for protection and, in particular, for not accepting those claims which the appellant advanced in the present case as justifying his fear of persecution if sent back to the PRC.
54 Of course, it was not the delegate’s decision which was challenged before the Federal Magistrate. The challenge before her Honour was to the Tribunal’s decision.
55 However, the Tribunal had before it both the delegate’s decision and the Department’s file. The Tribunal noted this at [19] of its reasons. The Tribunal expressly noted that it had had regard to material referred to in the delegate’s decision. The Department’s file included the OSCO reports. Those reports suggested that:
(a) In 2007 and 2008, Taipei was at the centre of an organised passport selling operation that had links with an illegal people smuggling operation involving PRC nationals;
(b) Taiwanese tour escorts and tour operators were involved in procuring the passports used to smuggle these PRC nationals who often came from Fujian province; and
(c) The tour escort probably facilitated the obtaining of a boarding pass at check-in by the true owner of the passport, then carried the passport through immigration clearance and finally made it and the boarding pass available to the PRC impostor. Sometimes the passport was not immigration cleared in Taipei.
56 At [37] of its reasons, the Tribunal referred to material in the Department’s file and to the interview.
57 The Tribunal did not specify the "material" or the "information" to which it referred at [37] of its reasons. It is nonetheless a fair inference, and one which we are prepared to draw, that the material covered by these remarks comprised the OSCO reports and the information obtained by the delegate during the interview.
58 There are no other documents in the file which meet the description of documents given by the Tribunal at [37] of its reasons.
59 There is no separate written record of the interview contained in the file. Presumably, the only extant record of the interview is the tape made during the interview.
60 The delegate devoted several paragraphs of his decision to matters discussed at the interview. After referring to difficulties which the delegate had with the appellant’s version of events as explained during the interview, the delegate made the observations extracted at [21] above.
61 Before deciding to challenge the delegate’s decision in the Tribunal, the appellant had in his possession a copy of that decision and a copy of the reasons which supported it. The evidence before the Federal Magistrate which is in the Appeal Book does not disclose whether the appellant saw the OSCO reports before the Tribunal made its decision or whether he was apprised of the contents of those reports by reference to those reports before the Tribunal made its decision.
62 The gravamen of the delegate’s remarks which we have extracted at [21] above is as follows:
(a) The delegate did not believe the appellant’s claims concerning D Company or that he had been involved in protests against D Company as he alleged;
(b) The delegate was of the view that the Taiwanese passport had not been immigration cleared in Taipei. The implication was that the appellant had been a knowing participant in some deception of the Taiwanese authorities which involved the unlawful use of the Taiwanese passport;
(c) The appellant’s claims bore many similarities to the claims made by other PRC protection visa applicants (who were mostly from Fujian province) who had lodged their applications in NSW;
(d) The similarities were as described in the extract at [21] above; and
(e) The appellant was part of a general migration movement from Fujian province to western countries. This movement comprised PRC nationals seeking a better life in the west for social and economic reasons but not for reasons of Convention-based persecution.
63 The Tribunal found that the appellant had unlawfully used the Taiwanese passport. The Tribunal accepted that the appellant had worked as a seaman for various shipping companies. However, the Tribunal also found that the appellant had fabricated his central claims. The Tribunal did not believe that the appellant had led protests against D Company or that he had been arrested and tortured. The Tribunal did not believe that he had fled the PRC after these events in fear of persecution.
64 The remarks made by the Tribunal at [37] and [79] of its reasons (as to which, see [26] and [32] above) are reminiscent of the language of the Tribunal which fell for consideration by the High Court in VEAL [2005] HCA 72; 225 CLR 88. In the present case, at [37] of its reasons, the Tribunal made reference to the Department’s file and at [79] referred to some other case in the Tribunal of which the Tribunal member was aware. The Tribunal provided no information to the appellant about the other case to which it referred at [79] of its reasons and gave no explanation as to why it considered this other case to be similar to the appellant’s case or why it felt it should mention this other case at all. The appellant was not told anything at all about this other case. The appellant and the Court are left to wonder whether the case was one of the cases to which the delegate had referred in his decision or was an entirely different case.
65 In VEAL [2005] HCA 72; 225 CLR 88, someone had sent a letter to the Department in which the author made several very serious allegations against a visa applicant from Eritrea. The letter was sent after the Tribunal was seised of the applicant’s matter by way of review of a decision made by the Minister’s delegate to decline to grant the claimed visa but before the Tribunal had concluded its review. The Department forwarded the letter to the Tribunal. In conducting its review, the Tribunal did not tell the applicant that it had received the letter nor did it provide any opportunity to the applicant to deal with the allegations made in the letter. At the end of its reasons, the Tribunal mentioned the letter and said that it had given it no weight.
66 At [18]–[21] (pp 96–98), the High Court said:
Subconscious effect?18 It follows that the Tribunal’s statement, that it gave no weight in reaching its decision to the letter or its contents, does not demonstrate that there was no obligation to reveal the information to the appellant and to give him an opportunity to respond to it before the Tribunal concluded its review. Deciding that it could reach its conclusion on other bases did not discharge the Tribunal’s obligation to give the appellant procedural fairness.
The letter and its contents19 Is it nonetheless relevant to ask whether the letter had or might have had some subconscious effect on the Tribunal in this case? Again, what Brennan J said about subconscious effect and prejudice must be read in its context. It was said in explanation of why it is that fairness requires that the person whose interests are likely to be affected by a decision should be given an opportunity to deal with the adverse information. As has later been rightly said [NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40; (2002) 115 FCR 561 at 583 [84] per Allsop J], "the necessity to disclose such material in order to accord procedural fairness is not based on answering a causal question as to whether the material did in fact play a part in influencing the decision". It follows that asking whether, despite what was said in its reasons, the Tribunal may have been subconsciously affected by the information distracts attention from the relevant inquiry. The relevant inquiry is: what procedures should have been followed? The relevant inquiry is neither what decision should the decision-maker have made, nor what reasons did the decision-maker give for the conclusion reached.
20 The information set out in the letter about the appellant could not be dismissed from further consideration by the Tribunal as not credible, or not relevant, or of little or no significance to the decision. The author of the letter purported to record what the appellant had told him; the author alleged that the appellant was working for the present government of Eritrea. What the appellant was alleged to have admitted, and whether the appellant was working for the present government of his country of origin, were matters that bore upon whether he had a well-founded fear of persecution for a Convention reason. Both what he was alleged to have done, and the fact that the allegation had been made, could be seen as a reason not to wish to return to Eritrea. His alleged support of the current government of Eritrea reflected upon whether he had a well-founded fear of persecution in that country. Neither the alleged admission nor the allegation of support for the current government could be dismissed as a matter of no relevance or of little or no significance to the decision. Further, neither the alleged admission, nor the allegation about where the appellant's political sympathies lay, could be dismissed from consideration as material to which the Tribunal could not give credence.21 It follows that procedural fairness required that the Tribunal draw the appellant’s attention to the information. But how should that have been done? The appellant contended that he should have been shown the letter.
67 The High Court went on to hold that, in the case before it, the Tribunal had to inform the applicant of the substance of the allegations made before reaching its decision but was not required to provide a copy of the letter or to disclose any information that might have identified the author.
68 At [27] (p 99), the High Court said:
The information which was contained in the letter was relevant to that inquiry and it could not be ignored by the Tribunal. The Tribunal was able to put the information aside from consideration in its reasons only because it reached the conclusion, on other bases, that the appellant was not entitled to a visa. But that step, of putting the information in the letter aside from consideration, could not be taken before reaching the conclusion that the application should be refused. It follows that to conduct the review with procedural fairness, the appellant had at least to know the substance of what was said against him in the letter. Only then could he attempt to answer the suggestions made by the author of the letter that the appellant had reasons other than Convention reasons to absent himself from Eritrea and that he did not have a well-founded fear of persecution for a Convention reason.69 In VEAL [2005] HCA 72; 225 CLR 88, both the Tribunal and the High Court were able to read the letter in question--it had been tendered in evidence in the judicial review proceedings and had been sent to the Tribunal. The High Court was in a position to judge whether the information set out in the letter could be dismissed by the Tribunal as not credible, or not relevant, or of little or no significance to the decision. The High Court was also able to assess the real impact or value of the Tribunal’s statement that it gave the letter no weight.
70 In the present case, even if the reasoning in VEAL [2005] HCA 72; 225 CLR 88 were applicable in principle, we think that appropriate disclosure of the substance of the relevant material was made insofar as the material referred to in [19] and [37] of the Tribunal’s reasons is concerned.
71 The appellant obviously was present at the interview. He also had an opportunity to obtain the tape recording made of that interview, had he desired to do so. The delegate had made clear in his reasons the difficulties which he had with the explanations of the central events offered by the appellant during the interview. Further, the appellant was apprised of the substance of what the delegate had taken from the other information and other cases to which he had regard in coming to the decision which he made.
72 In our judgment, the appellant, with the assistance of his migration agent, was well able to grasp that the delegate had used the interview and other documents and information to which he referred in his reasons adversely to the appellant. The substance of what it was that was used in this way and how it impacted upon the delegate’s decision was revealed in the reasons for that decision. Those reasons referred to the substance of the OSCO reports. The appellant was well aware of the contents of the delegate’s decision and the reasons for that decision and must be taken to have appreciated that the delegate’s decision and the reasons for it would be placed before the Tribunal and that it was a matter for him whether he chose to set about attempting to deal with the adverse findings reflected in those reasons. At [19] of its reasons, the Tribunal specifically referred to the delegate’s decision and expressly stated that it had had regard to material referred to in that decision. The present case is not a case where, without fair notice, the Tribunal travelled beyond the issues raised by the delegate’s decision, as was the case in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152.
73 Given the terms of [19] and [37] of its reasons, we think that the Tribunal did not intend to refer to the delegate’s reasons in the remarks which it made at [37] of its reasons. In our view, the Tribunal did have regard to the delegate’s reasons (as it noted at [19] of its reasons) and was plainly entitled to do so. A sensible interpretation of [19] and [37] of the Tribunal’s reasons is that, in making its decision:
(a) The Tribunal had regard to the delegate’s reasons;
(b) The Tribunal did not use the OSCO reports in a way which was adverse to the appellant; and
(c) The Tribunal did not use the information obtained at the interview in a way which was adverse to the appellant.
74 It is apparent that the Tribunal conducted its own hearing on 4 April 2008 and that the appellant was given an opportunity to give evidence and present arguments at that hearing. The appellant availed himself of that opportunity. The Tribunal’s adverse findings as to the credibility of the appellant were based upon its own impressions formed at the hearing before it but paying due regard to the other material before it. The Tribunal did not rely upon the views expressed by the delegate in his reasons nor did it rely upon the interview.
75 It is not necessary for us to decide whether the Tribunal was obliged to disclose to the appellant precisely what it had in mind when, at [37] of its reasons, it referred to "... material on file ..." and the interview conducted by the delegate with the appellant. In our judgment, the substance of the contentions made in the OSCO reports and the adverse material taken from the interview were both fairly disclosed to the appellant before the Tribunal made its decision. In any event, the Tribunal did not make use of them. The disclosure was contained in the delegate’s decision which the appellant had a fair opportunity to consider and to address, had he chosen to do so. It does not matter that the source of the information disclosed in this way may not have been specifically identified.
76 The remarks made by the Tribunal at [79] of its reasons are in a different category. At [79] of its reasons, the Tribunal made only the most general reference to the other case which it had in mind. The Tribunal did not provide any details about this other case. This other case may have been one of the cases referred to by the delegate or one of the cases covered by the reports in the Department’s file in relation to the appellant or simply another case before the Tribunal.
77 The Tribunal stated that it did not use information from the other case in a manner adverse to the appellant. It is not clear to us whether the Tribunal intended to convey by that remark that it had not had recourse to the other case at all or simply that it had not had recourse to the other case in a manner adverse to the appellant.
78 The Tribunal did make clear that the applicant in the other case had made different claims. There is no reason to conclude that the existence or circumstances of the other case had or might have had a subconscious influence upon the Tribunal.
79 In our view, the present case is very different from VEAL [2005] HCA 72; 225 CLR 88. The Federal Magistrate was not in a position to assess the material which the Tribunal had in mind at [79] of its reasons in the way in which the High Court assessed the letter in VEAL [2005] HCA 72; 225 CLR 88. This Court is in no better position than was the Federal Magistrate. Because we have no idea what the Tribunal had in mind, we are unable to determine whether the subject matter of [79] of the Tribunal’s reasons was credible, relevant and significant to the decision to be made and thus whether the Tribunal was obliged to give to the appellant an opportunity to deal with whatever it was that the Tribunal had in mind when it made the remarks which it did. Nor are we in a position to form a view as to what it was that might have been disclosed had the information been of that character. The present case may be contrasted with the circumstances dealt with by Allsop J in NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40; (2002) 115 FCR 561: See, in particular, [83]–[94] (pp 583–586).
80 For these reasons, we are not persuaded that the appellant was denied procedural fairness in the present case in respect of the subject matter of [19], [37] and [79] of the Tribunal’s reasons.
81 There is a related matter to which we should make brief reference. In effect, the appellant submitted that the Tribunal’s reasons for not accepting his version of events were so flimsy and artificially constructed as to demonstrate bias against him or, at the very least, the taking into account of the very matters which the Tribunal expressly stated it was not taking into account.
82 We have noted at [29] and [30] above that there were real, substantial and justifiable reasons for the Tribunal doubting the appellant’s credibility and ultimately not accepting his version of events. His lack of frankness about his use of the Taiwanese passport and his escape from the PRC were both significant matters which the Tribunal was entitled to take into account in assessing the appellant’s credibility. His implausible statements that he did not know where he was going when he left the PRC and that it was a matter of indifference to him where he was going when he left the PRC are in the same category.
83 In our judgment, the Tribunal’s reasons are not so obviously lacking logic and evidentiary support as to bespeak bias or the subconscious influence of other undisclosed adverse material.
84 The appellant’s allegation of bias based upon the Tribunal’s reasons therefore fails. There was no evidence before the Federal Magistrate or before this Court which would support the appellant’s allegations of bias on any other basis.
85 The remaining contentions embedded in Grounds 1, 2 and 3 of the appellant’s Notice of Appeal are all dependent upon findings of fact and matters going to the appellant’s credibility. These matters cannot be challenged in this fashion by way of judicial review. For these reasons, Grounds 1, 2 and 3 must fail.
86 Ground 4 raises the question of whether or not the Tribunal complied with s 425 of the Act. There was tendered before the Tribunal and the Federal Magistrate a letter from the Tribunal to the appellant’s migration agent, Ms Yu, dated 25 February 2008. In our view, that letter constitutes adequate compliance by the Tribunal with its obligations under s 425 of the Act.
87 The appellant also contended that the Tribunal had failed to allow him an adjournment of the hearing when, he said, justice and fairness demanded that an adjournment be granted. It is evident from [53] and [54] of the Tribunal’s reasons that, when the Tribunal was questioning the appellant about the events of 16 July 2007, the appellant informed the Tribunal that he was confused and wanted an adjournment of the hearing. A short break was allowed to the appellant after which the appellant chose to continue with the hearing. The appellant did not place before the Federal Magistrate additional evidentiary material to support this Ground of Appeal. The Tribunal’s record of what occurred does not establish that the appellant was denied a meaningful opportunity to participate in the hearing before the Tribunal.
88 For these reasons, Ground 4 is not made out.
89 There is no substance in either Ground 5 or Ground 6. It is clear from all of the material before us that the appellant well understood which PRC companies were being referred to in the questions asked by the Tribunal.
90 Ground 7, which is an omnibus catch-all, also fails.
91 Accordingly, the appeal fails and must be dismissed with costs.
Associate:
Dated: 21
August 2009
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NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
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NSD1950 of 2008
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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SZMKG
Appellant |
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AND:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
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JUDGES:
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BENNETT, REEVES & FOSTER JJ
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DATE:
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21 AUGUST 2009
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
REEVES J:
92 I feel compelled to disagree with the reasons for judgment of Bennett and Foster JJ ("the joint reasons") on one aspect of this matter, but I agree with the ultimate conclusions reached by them and the orders they propose.
93 To be specific, I disagree with the conclusion reached in the joint reasons (at [50]) about the correctness of the Minister’s submissions (set out at [49] of the joint reasons) in relation to the application of the ruling of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (‘VEAL’) [2005] HCA 72; (2005) 225 CLR 88. However, I agree with the conclusions reached in the joint reasons that, even if VEAL applied in this matter:
(a) as to the information referred to at [19] and [37] of the Tribunal’s decision record, appropriate disclosure had been made by the delegate in his reasons for decision by the time this matter came before the Tribunal: see [70] to [75] of the joint reasons; and
(b) as to the information referred to in [79] of the Tribunal’s decision record, in the circumstances, there was no requirement for disclosure of this information for the reasons stated at [76] to [79] of the joint reasons.
94 My reasons for considering that VEAL applied in this matter are as follows.
95 Section 422B was inserted in the Migration Act 1958 (Cth) ("the Act") by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth). As is pointed out in the Minister’s submissions, s 422B did not apply to the decision in VEAL: see VEAL at [10] and footnote (16).
96 While s 422B is, by its terms, an exhaustive statement of the natural justice hearing rule, it does not affect the natural justice bias rule: see Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 at [67] agreeing with VXDC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1388; (2005) 146 FCR 562 at [27]. See also Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 at [43].
97 In VEAL at [15], referring to the decision of Brennan J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 628-629, the High Court held that: "adverse information that is credible, relevant and significant to the decision to be made" should be provided to the applicant because it: "creates a real risk of prejudice, albeit subconscious and it is unfair to deny a person whose interests are likely to be affected by the decision, an opportunity to deal with the information".
98 This subconscious prejudicial effect the High Court referred to, appears to me to involve the application of the natural justice bias rule, rather than the natural justice hearing rule. In Kioa, Brennan J appeared to apply the latter to adverse information that the decision maker intended to take into account in making his or her decision (at 628), whereas his Honour appeared to apply the former to adverse information which, while not relied upon to make the decision, still created the subconscious prejudicial effect referred to (at 629). This also appears to me to be the effect of the extensive review of the authorities undertaken by Allsop J in NIB Health Funds Ltd v Private Health Insurance Administration Council ("NIB Health") [2002] FCA 40; (2002) 115 FCR 561 at [83] to [94] (which was referred to in VEAL at [19]).
99 Furthermore, I consider the subconscious prejudicial effect, in this context, is more akin to the prejudgment (without animus) aspect of the bias rule in the sense explained by Mahoney JA in Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] [1990] NSWCA 154 as follows: "The difference between bias and prejudice has been referred to in other cases. Bias ordinarily or primarily involves animus against a party; prejudice involves rather that the issue to be determined has been prejudged, whether because of animus or not." (emphasis added)
100 For these reasons, I do not consider the introduction of s 422B to the Act overcame the effect of the ruling in VEAL. In this matter, I do not, therefore, consider it relieved the delegate, of the Tribunal, of the need to draw the appellant’s attention to any adverse information in his or its possession which was "credible, relevant and significant" to the appellant’s application.
101 Insofar as this conclusion concerns the delegate, the information described by him in the concluding paragraphs of his decision (set out at [21] of the joint reasons) was clearly adverse information which was credible, relevant and significant to his decision because he specifically referred to it and then specifically relied upon it to make his decision.
102 As an aside, in these circumstances, quite apart from any requirement of VEAL, I think the delegate was required by s 57 of the Act to provide the information to the appellant because he clearly relied upon it in making his decision. However, I consider the full merits review of the delegate’s decision by the Tribunal provided in the Act, overcame this failure on the part of the delegate: see Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344 at [32].
103 Insofar as this conclusion concerns the Tribunal, at [19] and [37] of its decision record, the Tribunal clearly referred to the same information: see [23] and [26] respectively of the joint reasons. I should add, in this regard, that I do not consider the Tribunal’s statement at [37] of its decision record that it did not use this information in an adverse manner to the appellant relieved it of any obligation it may have had (but, see below) to disclose the information: see NIB Health at [83] to [85].
104 However, for the reasons explained at [2] above, in this matter, I
consider that appropriate disclosure was either made in relation
to the
information in [19] and [37] of the Tribunal’s decision record, or was not
required in the circumstances in relation
to the information in [79] of the
Tribunal’s decision record.
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I certify that the preceding thirteen (13) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice Reeves.
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Associate:
Dated: 21 August 2009
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Mr J Mitchell
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Solicitor for the First Respondent:
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Clayton Utz
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The Second Respondent submitted save as to costs.
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