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Federal Court of Australia |
Last Updated: 9 February 2001
Sreeram v Minister for Immigration & Multicultural Affairs [2001] FCA 53
MIGRATION - Application for a protection visa - whether procedures required by the Migration Act 1958 (Cth) were observed by the Tribunal in connection with the making of its decision - situation where there were additional matters which the applicant wished to draw to the attention of the Tribunal and did not do so - whether Tribunal failed to observe the requirements of s425 - invitation issued under s425 must remain open and must not be a hollow shell or empty gesture.
Migration Act 1958 (Cth)
Migration Legislation Amendment Act (No 1) 1998 (Cth)
Minister for Immigration and Multicultural Affairs v Cho [1999] FCA 946; (1999) 92 FCR 315 cited
Mohammed v Minister for Immigration and Multicultural Affairs [2000] FCA 264 cited
De Silva v Minister for Immigration and Multicultural Affairs (2000) FCR 364 followed
Minister for Immigration and Multicultural Affairs v Elias Kanchan Mohammad [2000] FCA 1275 followed
Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472 followed
Mohammad v Minister for Immigration and Multicultural Affairs [2000] FCA 466 cited
Kumar v Minister for Immigration and Multicultural Affairs [2000] FCA 1013 cited
Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 followed
Refugees Review Tribunal v AALA [2000] HCA 57; (2000) 176 ALR 219 cited
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 cited
Sook Rye Son v Minister for Immigration and Multicultural Affairs [1999] FCA 7; (1999) 86 FCR 584 cited
Kheirollahpoor v Minister for Immigration and Multicultural Affairs [2000] FCA 1350 cited
Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1858 cited
LALITHARAJANE SREERAM, SREERAM LODAGALA, AISHWARYA SREERAM AND PRIYADARSHINI SREERAM V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 962 OF 2000
JUDGE: BEAUMONT J
DATE: 9 FEBRUARY 2001
PLACE: SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA |
|
NEW SOUTH WALES DISTRICT REGISTRY |
Application dismissed, with costs.
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 |
JUDGE: |
BEAUMONT J |
DATE: |
9 FEBRUARY 2001 |
PLACE: |
SYDNEY |
BEAUMONT J:
INTRODUCTION
1 This is an application made under s 476 of the Migration Act 1958 (Cth) ("the Act") seeking judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") to affirm the Minister's decision to refuse to grant the applicants protection visas.
2 By their amended application, the applicants state the single ground of their claim for judicial review as follows:
"The grounds of the application are -1. Procedures that were required by the Act to be observed in connection with the making of the Tribunal decision were not observed in that the Tribunal failed to give the First Applicant a reasonable opportunity to give her evidence and present her arguments to the Tribunal in accordance with s.425 [s.476(1)(a)].
Particulars
The Tribunal hearing consisted of a series of questions by the Tribunal that addressed issues raised by the Applicant in her statement to the Department. The questions moved from topic to topic in accordance with the Tribunal's agenda. The First Applicant was not given an opportunity to provide any additional evidence or arguments to that sought by the Tribunal. Furthermore, during the hearing the First Applicant was impeded from explaining her case by the Tribunal's repeated interruptions to her answers."
3 By s 425(1) it is provided that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. This provision does not apply if (inter alia) (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it (s 425(2)). In the event that (a) or (b) apply, the applicant is not entitled to appear before the Tribunal (s 425(3)).
4 By s 425A(1), the invitation to appear must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
5 In order to understand the context in which the alleged breach of s 425 is said to have occurred, it will be necessary to refer to the nature of the claims made in the applicants' application for protection visas and some other background.
BACKGROUND
(a) The claims made in the application for protection visas
6 The applicants are a Sri Lankan Family. Their application for protection visas was supported by a lengthy statement by the first applicant dated 29 October 1998 which claimed, inter alia, that as a consequence of "the present political situation in Sri Lanka, many thousands of civilians have fled the country due to ethnic troubles. The innocent civilians who were arrested and tortured by the army flee the country in fear of death once they are released from custody by way of bribing the security officers...". The statement went on to describe, in considerable detail, a series of events in which the first applicant's family had, it was claimed, suffered at the hands of several militant groups in Jaffna and Trincomalee between 1983 and 1999. It was claimed that the family "decided to flee to India as refugees. The Tamil Nadu government in South India gave enough protection for the Tamils from Sri Lanka till the LTTE murdered the then Prime Minister of India, Rajiv Ghandi, in May 1991. After [this] ... the Tamils were treated as criminals ...". The first applicant's family lived in Madras, where the first and second applicants met, and decided to marry. The statement went on to describe, again in some detail, a series of unpleasant incidents involving the first applicant and Indian police officers and the LTTE in India, and later in Colombo, where the first and second applicants married in 1993. The statement went on to make several claims of intimidation and harassment of the first applicant by the Sri Lankan police and the LTTE in 1996 and subsequently.
(b) The Tribunal's letter dated 11 April 2000
7 By letter to the first applicant dated 11 April 2000, the Tribunal (presumably acting under s 425(1) and s 425A(1) of the Act) informed the applicants as follows (inter alia):
"The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons."
8 A hearing on 29 May 2000 was fixed.
(c) The Tribunal hearing
9 The Tribunal hearing, which took place on the date fixed between 10.05 am and 1.05 pm, was taped. A transcript of the tapes was tendered in the present application, subject to some objections, to be mentioned below. The tapes were also tendered. The transcript consists of seventy-nine typed pages. Speaking generally, the transcript disclosed that the hearing took the form of questions put and comments made, by the Tribunal.
THE FIRST APPLICANT'S EVIDENCE IN THE PRESENT APPLICATION
(a) The first applicant's affidavit
10 By her affidavit sworn 22 January 2001 in the proceedings, the first applicant gave the following evidence (which was not sought to be challenged by cross-examination):
"3. A few days before the hearing, I went through my statement. My husband helped me. I found 4 mistakes. I made a note of these and took the note to the hearing. At the hearing, I was only given a chance to mention the first 2 mistakes. I was not given a chance to mention the other mistakes. The first was the reference on page 6 to `my parents' being worried abut us. It should have stated that `my mother' was worried about us. My father was no longer alive at the time. The second was the reference on page 8 to when my brother was arrested. He was arrested in February 1998 and not July 1997. When this was raised towards the end of the hearing I was confused and completely forgot about the [mistake].4. During the hearing, I was not allowed a free opportunity to give clear or complete answers. At the start of the hearing, the Member asked me to break my answers into pieces to help the interpreter. I tried to do this. On a number of occasions the interpreter put his hand up to get me to stop talking or would say `shoosh'. At times, the breaking up of my answers meant that, after the first part of my answer was being interpreted, I forgot what I was then going to say. At other times, the Member would start another question as soon as the interpreter had finished the first part of my answer and before I could [complete] my answer.
5. Sometimes, I was asked questions before I could complete my answer. Sometimes the [M]ember would ask 2 or 3 questions together and I would not get an opportunity to answer all of them fully and clearly. Sometimes I would be answering a question and the Member would stop me by putting her hand up or saying `excuse me'.
6. I have [listened] to the tape to try and recall what evidence I was prevented from giving to the Tribunal. I can remember wanting to tell the Tribunal about the following matters but not being given a chance to do so -
(a) I wanted to explain that my husband and I could not marry in Trincomalee because of the problems there with the Army and police. We could not marry in India because of the problems there. I wanted to tell the Tribunal that this meant we were married without our friends and relatives and this caused me a lot of pain.
(b) At Q115, I was asked how I travelled to India. I wanted to tell the Tribunal how 2 girls who were neighbours had been killed and there were the times I had been taken into custody. As a result, I was too scared to leave by boat and so arranged through a pastor for an agent to organise for my mother and myself to go by plane.
(c) At Q158, I was asked about my arrest by the Indian Police. I wanted to tell the Tribunal that my husband's relatives told the police I was involved with the LTTE and gave them money to separate us. I wanted to explain that the fact that the police did not believe this did not matter. Once there was this police record, the police could always arrest me if there was any incident involving the LTTE.
(d) At Q171, the [M]ember said my husband and I had lived together. I wanted to tell how I, and later my children, were not able to live with my husband from November 1994 to March 1995, from August 1995 to April 1996 and from February 1997 to September 1998, I wanted to explain how upset this made me.
(e) At Q275 I was asked about paying money to the LTTE. I wanted to tell the Tribunal about how my mother would be in danger in Sri Lanka if we did not pay it. I also wanted to tell the Tribunal that 50,000 Indian rupees was a large amount of money for us but my husband and I decided it would be worth paying it, if the LTTE would leave us alone.
(f) At Q301, I was asked about going back to Sri Lanka. I wanted to explain that after my husband left I was alone in India and the LTTE could easily harass me. Although I knew the LTTE might cause problems in Sri Lanka, I wanted to explain that I would be safer there.
7. The hearing was just the Members questions and my answers. There were other things I wanted to tell the Member about. I wanted to tell the Member about the humiliation and suffering I underwent in Puttalam after I was arrested there. I was not given an opportunity to do this.
8. I became very confused and upset during the hearing because of what the Tribunal said about what was in my statement and what evidence I had given. The Tribunal wrongly said I had said things or not said things. Towards the end of the hearing, I wondered whether the Member was lying or whether I didn't know what I was saying or doing.
9. There was also an error in the interpretation of my answer to Q321. I told the interpreter that I had a 7 month old `Kulanthai', which means `baby' in Tamil. I was interpreted as saying `I was seven month's pregnant'. The Tribunal later said to me that I had said I was pregnant. I said in Tamil `No. I said `Kulanthai' not `Karpeni'. `Karpeni' means `pregnant' in Tamil. The tape recording of the hearing confirms that I said `Kulanthai' and that the interpreter made a mistake.
10. The Tribunal repeatedly said it did not believe my evidence. I was very confused and my mind was blank. I didn't know what to say and felt I could not talk freely. I just wanted to get away from the hearing."
(b) The transcript and the tapes
11 As mentioned, some objections were taken to parts of the transcript. The applicants objected to some of the transcription as incorrect and tendered the tapes themselves in support of the objection. For his part, the Minister also suggested that some other errors had occurred in the transcription process. As well, the Minister objected to several statements added in the transcription process to the effect that the applicant had been interrupted, the objection being that such a comment by the transcriber was an admissible opinion which went beyond the scope of s 48(1)(c) of the Evidence Act 1995 (Cth).
12 I admitted the transcript, but subject to any valid objections, indicating that I would rule on these questions should it become necessary. As will appear, it has not been necessary.
THE APPLICANTS' SUBMISSIONS
13 In outline, the applicants made these submissions in argument before me:
* Although the Tribunal may have a wide discretion as to the conduct of the hearing, it is obliged to conduct it in a way which ensures that an applicant is able to exercise the right conferred by s 425(1).
* Because s 425 is a central feature of a fair system of merits review and occupies part of the field which would otherwise be occupied by the rules of natural justice, a breach of its requirements should have the same consequences as a breach of natural justice in other jurisdictions.
* The Tribunal denied the first applicant a reasonable opportunity to give her evidence and address the issues. It impeded and discouraged her from giving her evidence by misrepresenting it and confusing her. The Tribunal impeded the first applicant by continually interrupting her answers and permitting the interpreter to interrupt her answers. It discouraged her by repeatedly telling her in emphatic terms that it did not accept her evidence. Counsel for the applicants provided particulars of these allegations in his document dated 29 January 2001.
* At no stage did the Tribunal give the first applicant an opportunity to advance her evidence or arguments, apart from the answers she gave in specific response to the Tribunal's own questions. In particular, she was not given any opportunity to explain to the Tribunal her humiliation and suffering when arrested by Sri Lankan authorities in 1998.
* Since the Tribunal was not prepared to decide the review in the applicants' favour on the material then before it (s 425(2)(a)), it must follow that the Tribunal was not satisfied that the claims made by the first applicant in her statement were true; and that the objective of the hearing was to provide the first applicant with the opportunity of persuading it of the merits of her claim. The Tribunal went on in the reasons for its decision to reject the applicants' case because it considered that the first applicant's claims were implausible, contradictory, internally inconsistent and also inconsistent with the "independent evidence". The Court cannot be satisfied that the Tribunal would necessarily have arrived at the same conclusion if it had enjoyed the benefit of considering all of the first applicant's evidence and arguments, given especially the Tribunal's approach in refusing to accept her evidence as credible.
THE MINISTER'S POINT OF LAW
14 Amongst other contentions going to the merits, the Minister raised a point of law, in the nature of a demurrer which, he says, constitutes a complete answer to the applicants' case. The Minister contends that s 425, at least in its present form, did not oblige the Tribunal to give the applicants a reasonable opportunity to give evidence. (In the alternative, the Minister contends that such an opportunity was, in fact, given.)
15 In developing his primary contention, the Minister submits:
* Section 425 provides:
"(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review....."
* This section was inserted by the Migration Legislation Amendment Act (No 1) 1998 (Cth) with effect from 1 June 1999. That Act also deleted the predecessor to s 425 which provided:
"425(1) Where section 424 does not apply, the Tribunal:(a) must give the applicant an opportunity to appear before it to give evidence; and
(b) may obtain such other evidence as it considers necessary."
* When considering the extent of the procedural entitlements of an applicant appearing before the Tribunal, it must be borne in mind that those entitlements are carefully delineated by the Act and that they plainly do not include the full panoply of procedural protections that may be available in other forums: Minister for Immigration and Multicultural Affairs v Cho [1999] FCA 946; (1999) 92 FCR 315 at 331 per Sackville J. The clear obligation imposed by the section is to invite the applicant: De Silva v Minister for Immigration and Multicultural Affairs (2000) FCR 364 at [8] - [9].
* The differences between the earlier provision and the section as it stands now (and at the relevant time) were considered by Branson J in the Full Court in Minister for Immigration and Multicultural Affairs v Elias Kanchan Mohammad [2000] FCA 1275. Her Honour said at [43]:
"This change from the substantive requirement of giving the applicant an opportunity to appear before the Tribunal to the procedural requirement of inviting the applicant to appear before the Tribunal suggests an intention in the legislature to remove the statutory requirement, which had been construed as requiring the Tribunal to give an applicant a genuine and reasonable opportunity to appear before it, and to replace it with a more formal requirement."
* This was followed by Wilcox J in Xiao v Minister for Immigration and Multicultural Affairs [2000] FCA 1472 and by statements by Katz J in Mohammad v Minister for Immigration and Multicultural Affairs [2000] FCA 466 at [17]:
"[I]t is apparent that the giving by the Tribunal of the notice referred to in [s 425A(1)] was intended simultaneously to satisfy the Tribunal's obligations under s 425(1) of the Act."
and by Mansfield J (obiter) in Kumar v Minister for Immigration and Multicultural Affairs [2000] FCA 1013 at [28]:
"It may be that the substitution of s 425(1) in its present terms is directed more to specifying a procedure for the giving of the opportunity to be heard which can be tied to the new s 441A ... dealing with the methods of dispatch of certain documents, including the notice of invitation to appear: s 425A."
* In spite of this authority, Goldberg J in Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759, after referring to the decision of the Full Court in De Silva, stated at [31]:
"These passages suggest that where the applicant appears, but is not able through the conduct of the Tribunal to give evidence or present arguments, albeit that the applicant has been invited by the Tribunal to appear, then there will be a contravention of s 425(1)."
* The passages referred to by His Honour are to the effect that the purpose of the new s 425 is the same as the old s 425; namely, to ensure that the applicant has an opportunity to appear before the Tribunal to give evidence and present arguments in cases where the Tribunal cannot decide in favour of the applicant on the papers and that the section is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear and give evidence and present arguments.
* However, it does not follow from this that, apart from the invitation, the Tribunal is obliged, in the same way as it was under the old s 425, to give the applicant a genuine opportunity to appear and to give evidence. In any event, the decision of Goldberg J in Mazhar is contrary to the decisions of the Full Court referred to above and ought not to be followed.
16 (In the course of oral argument, counsel for the Minister accepted, correctly in my view, that if (contrary to his submission on the merits) a denial of natural justice had occurred here, it may have been open to the applicants to seek appropriate prerogative relief from the High Court (see Refugees Review Tribunal v AALA [2000] HCA 57; (2000) 176 ALR 219 at (74 - 81) per Gaudron and Gummow JJ) but that this Court's jurisdiction in that behalf has been excluded by s 476(2)(a) of the Act.)
THE APPLICANTS' SUBMISSIONS ON THE MINISTER'S POINT OF LAW
17 On behalf of the applicants it is submitted:
* The former s 425 conferred on an applicant the right to advance "whatever [relevant] evidence or arguments she wished to advance" in support of her case (per Gummow and Hayne JJ at [187] in Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, cited by the Full Court in Cho at [39]).
* In Cho it was held that an applicant's rights under the former s 425 would be infringed if a Tribunal hearing was conducted in a manner that prevented an applicant from giving evidence or putting arguments (Cho at [43] and [70]). This could occur if the applicant was constrained, discouraged or impeded from doing so (Cho at [44] and [71]). An applicant could be discouraged from giving evidence by misleading statements by the Tribunal (Cho at [33]).
* Following the amendments made by Schedule 3 of the Migration Legislation Amendment Act (No 1) 1998, Branson J considered that s 425 in its present form may no longer confer on an applicant the right to a genuine and reasonable opportunity to appear before the Tribunal (Minister for Immigration and Multicultural Affairs v Mohammad [2000] FCA 1275 (18 September 2000) at [43]). In Xiao at [35] and [37] Wilcox J held that the legislative changes had removed that right because he could think of no other reason why Parliament would have decided to substitute a requirement that the Tribunal "invite the applicant to appear" for a requirement that it "give the applicant an opportunity to appear".
* In Kumar, Mansfield J stated that the Explanatory Memorandum did not suggest that the general effect of s 425(1) as previously expressed was intended to be cut down. His Honour suggested that the substitution of s 425(1) in its present terms was directed more to specifying a procedure for the giving of the opportunity to be heard which could be tied to the new s 441A. Thus Kumar does not support the Minister's case. Furthermore, it suggests a reason for the changes different from that found by Wilcox J. The changes may have been directed at overturning the view expressed by Burchett J in Sook Rye Son v Minister for Immigration and Multicultural Affairs [1999] FCA 7; (1999) 86 FCR 584 at [11] to [15], that the former provisions required actual notice and regulations could not authorise anything less.
* Section 425 in its current form was considered by the Full Court in De Silva .The Court held at [9] that "[t]he 1998 amendment of s 425 did not affect the structure of the section, and in our view what was said by Sackville J [in a passage in Cho about the effect of the section in its previous form] aptly describes the purpose of the current section. ... The section is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear and give evidence and present arguments". (Counsel's emphasis)
* In Mazhar at [31], Goldberg J referred to De Silva and Xiao. His Honour held that the Tribunal would not have complied with its obligation under s 425 if it provided an interpreter whose interpretation was such that an applicant was unable "adequately to give evidence and present argument to the Tribunal".
* In Kheirollahpoor v Minister for Immigration and Multicultural Affairs [2000] FCA 1350 (20 September 2000) at [49], the Minister accepted that s 425 imposed a continuing obligation on the Tribunal to give the applicant an opportunity to appear, give evidence and present arguments. Carr J observed that the Full Court had decided in De Silva that the 1998 amendments did not change the purpose of s 425. The same view was reached in Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1858 at [21] to [23] (15 December 2000) and in judgments by single judges referred to in Singh but in those cases it does not appear that any question arose as to whether the 1998 changes to s 425 had affected applicants' rights.
* The Minister relies on Mohammad v Minister for Immigration and Multicultural Affairs [2000] FCA 466 (12 April 2000). There the Applicant did not receive the notice of the hearing because he had not informed the Tribunal of a change of address. In that context, Katz J stated at [17] that the giving of the notice required by s 425A(1) was intended to satisfy the Tribunal's obligations under s 425(1)) (to invite an applicant to appear before the Tribunal). It is far from obvious that Katz J was saying that the only obligation imposed on the Tribunal by s 425 was to issue the invitation.
* In seeking to rely on De Silva, the Minister is making the same error as Wilcox J (at [26]) in Xiao. The Minister is focusing on what the Full Court said at [8] and overlooking what it held at [9].
* The views expressed by the Full Court in De Silva have been followed by single judges in Mazhar and Kheirollahpoor and arguably are binding on the Court as presently constituted. The issue in De Silva was whether the present s 425 imposed an obligation on the Tribunal to identify issues and draw them to the applicant's attention. The ambit of the present s 425 was an essential aspect of the Full Court's reasoning
CONCLUSIONS ON THE MINISTER'S CONTENTION THAT, UPON THE PROPER CONSTRUCTION OF S 425 (AS AMENDED), THE TRIBUNAL IS NOT OBLIGED TO GIVE AN APPLICANT A REASONABLE OPPORTUNITY TO GIVE EVIDENCE
18 It will be convenient to refer first to the Full Court decision in De Silva.
19 In De Silva the Court (Hill, Carr and Sundberg JJ), described the relevant legislative history (par 5):
"Before its amendment by the Migration Legislation Amendment Act (No 1) 1998 s 425 provided:`(1) Where section 424 does not apply, the Tribunal:
(a) must give the applicant an opportunity to appear before it to give evidence; and
(b) may obtain such other evidence as it considers necessary.
(2) Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review.'
Section 424 dealt with the case where the Tribunal was able to decide in favour of the applicant `on the papers'. In its present form s 425(1) provides:
`The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.'
Sub-section (1) does not apply in three cases, one of which is where the Tribunal considers that it should decide the review in the applicant's favour `on the papers': sub-s (2)(a). The significance of the amendment to s 425(1) for present purposes lies in the addition of the words `and present arguments'. Although the words `relating to the issues arising in relation to the decision under review' were also added to sub-s (1), they were, by reason of the former sub-s (2), implicit in the former sub-s (1)."
20 Their Honours noted (par 7) that the complaint there was not that the Tribunal did not allow the applicant to advance his case; rather the claim was that the Tribunal was obliged to inform the applicant that "in determining whether the [applicant] was of any interest to the authorities it proposed to place weight on the fact that he had been able to leave without let or hindrance on a passport in his own name".
21 Their Honours said (par 8):
"It was submitted for the appellant that s 425(1) is not restricted to inviting an applicant, prior to the date set for the hearing, to attend the hearing in order that he or she may give evidence and present arguments, but has a continuing operation during the hearing obliging the Tribunal to identify issues and draw them to the applicant's attention. We do not accept this construction of the provision. The governing word in s 425(1) is `invite'. The purpose of the invitation is to enable an applicant to attend the hearing so that he or she can give evidence and present arguments relating to the issues in the case. On the plain words of the sub-section the obligation is to invite the applicant to appear. It does not impose on the Tribunal an obligation to identify issues and draw them to an applicant's attention. That s 425 does not bear the construction placed upon it by the appellant is confirmed by s 424A, which was inserted into the Act at the same time as s 425 was amended. Section 424A(1) provides:`Subject to subsection (3), the Tribunal must:
(a) give the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.'
The obligation thus imposed does not apply to certain classes of information, one of which is information given by the applicant for the purposes of the application: sub-s (3). The existence of an express provision imposing obligations on the Tribunal to assist an applicant in relation to matters that may be important to the outcome of the case shows that s 425(1) does not impose obligations of the type asserted by the appellant."
22 Hill, Carr and Sundberg JJ went on to say (par 9):
"The ambit of s 425(1)(a) in its earlier form was considered by a Full Court (Tamberlin, Sackville and Katz JJ) in The Minister v Cho [1999] FCA 946; (1999) 164 ALR 339. Sackville J, at 354-355, said:`Section 425(1)(a), as its language and context make clear, is directed to ensuring that the applicant has an opportunity to appear before the RRT to give evidence, in cases where the RRT cannot decide in favour of the applicant simply on the papers. It is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear to give evidence. Procedural irregularities of that kind, whatever other consequences they may have, do not constitute a breach of s 425(1)(a) and thus do not provide a ground of review under s 476(1)(a) of the Migration Act. As Tamberlin and Katz JJ have pointed out, the procedural entitlements of an applicant appearing before the RRT are carefully delineated by the Migration Act. They plainly do not include the full panoply of procedural protections that may be available in other forums.'
This passage was approved by a Full Court (Sundberg, Katz and Hely JJ) in Mohammed v The Minister [2000] FCA 264. The 1998 amendment of s 425 did not affect the structure of the section, and in our view what was said by Sackville J aptly describes the purpose of the current section. Adapting his Honour's language to the amended provision, that purpose is to ensure that the applicant has an opportunity to appear before the Tribunal to give evidence and present arguments in cases where the Tribunal cannot decide in favour of the applicant `on the papers'. The section is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear and give evidence and present arguments."
23 As the Minister's submissions have noted, s 425 was considered by Branson J as a member of the Full Court in Minister for Immigration & Multicultural Affairs v Mohammad [2000] FCA 1275. However, the issue there arose in a different context, namely where the applicant had not received notice of the hearing. In that context, Branson J said (pars 43 - 44):
"Following the coming into operation of the amendments to Division 4 of Part 7 of the Act effected by the Amending Act, s 425 of the Act no longer provides that the Tribunal `must give the applicant an opportunity to appear before it to give evidence.' Instead s 425 provides that the Tribunal `must invite the applicant to appear before the Tribunal to give evidence and present arguments ....' This change from the substantive requirement of giving the applicant an opportunity to appear before the Tribunal to the procedural requirement of inviting the applicant to appear before the Tribunal suggests an intention in the legislature to remove the statutory requirement, which had been construed as requiring the Tribunal to give an applicant a genuine and reasonable opportunity to appear before it, and to replace it with a more formal requirement. A further indication that this was the intention of the legislature is provided by the terms of s 425A, which was inserted into the Act by the Amending Act. Section 425A has the effect that, if the applicant is not in immigration detention, the Tribunal must give the applicant notice of his or her opportunity to appear before the Tribunal by sending a notice to the applicant, by giving a notice to the applicant or a person authorised by the applicant to receive on his or her behalf a document of that kind, or by leaving a notice at the applicant's place of residence with a person who appears to live there and appears to have turned 16. That is, the amendments effected by the Amending Act changed the requirement that the Tribunal notify the applicant that he or she is entitled to appear before the Tribunal to a requirement that the Tribunal give the applicant, by a specified method, a notice in writing containing certain information.As the Act is currently framed, it is less easy to conclude, as Burchett J did in Sook, that reg 5.03 properly construed has no application in respect of a document by which the Tribunal advises an applicant that he or she may appear before it to give evidence. Section 425A in reality requires the Tribunal to give the applicant notice of his or her opportunity to appear before it by giving him or her a document which contain[s] certain information. The Tribunal must give that document to the applicant by one of the means specified in s 441A(1) and (2). Provided that the Tribunal does this, the document is taken to be duly given to the applicant (s 441A). That is, the obligation imposed on the Tribunal by s 425A(1) is met."
24 As noted, Branson J's observations were followed by Wilcox J in Xiao. There an invitation had been received but the applicant could not attend the hearing because of illness. The Tribunal was not aware of the applicant's difficulty. Wilcox J held that the applicant had no right to an order of this Court setting aside the Tribunal's determination. His Honour said (34 - 37):
"The essence of [the Minister's] argument is that events subsequent to the invitation are immaterial. He accepted the logic of that submission. He agreed that, on his argument, it would not matter if an applicant was hospitalised as the result of an accident on the day before the projected hearing and it was clear the Tribunal was promptly apprised of that fact; if the Tribunal member proceeded to make a determination, either in ignorance of the applicant's situation or because the member was unwilling to defer the hearing, no relief would be available to the applicant. [The Minister] contended s425 would have been satisfied and there was no continuing obligation for the Tribunal to act reasonably in relation to provision of an oral hearing. He said it would `no doubt be a breach of natural justice' to go ahead with the hearing, but he pointed out that this was excluded as a ground of review by s476(2)(a) of the Act. According to [the Minister], an applicant's only remedy, in such a situation, would be an application to the Minister, presumably under s48B or s417 of the Migration Act.The situation outlined by [the Minister] seems to offend fundamental notions of fairness and sensible administration. However, with respect to the apparent contrary view of Burchett J and (possibly) Mansfield J, it seems to me [the Minister] is correct in saying that s425 no longer imports a continuing obligation. I agree with Branson J's analysis of the position. I can think of no other reason why Parliament would have decided to substitute a requirement that the Tribunal `invite the applicant to appear' for a requirement that it `give the applicant an opportunity to appear'. Parliament must have deliberately decided the Tribunal's obligation should be confined to the extension of an invitation, whether or not, having regard to subsequent events, that resulted in a reasonable opportunity for the applicant to appear.
It does not follow that events subsequent to the invitation are necessarily immaterial. Obviously, the invitation under s425 must remain open. Moreover, as Mansfield J pointed out [in Kumar], there may be a question, in a particular case, whether or not it is correct to conclude the applicant `does not appear before the Tribunal' at the designated hearing. Having regard to the significance of an oral hearing to an applicant for a protection visa, I would not subscribe to the view that the condition of non-appearance is necessarily satisfied by the applicant's failure to present personally.
However, in the present case I do not think subsequent events are significant. The Tribunal issued an invitation that complied with the requirements of s425A. That invitation remained open. Notwithstanding my finding that Ms Yu sent the fax requesting a postponement, it cannot be said that the Tribunal was wrong in finding that Ms Xiao did not appear at the hearing. If, as I believe, s425 imposes on the Tribunal only an obligation to issue an invitation, without any continuing obligation in relation to a reasonable opportunity to appear, that is the end of the matter; at least so far as this Court is concerned."
25 In my respectful opinion, Wilcox J was correct, first in his adoption of Branson J's observations; and secondly, in adding the "obvious" qualification that the invitation itself must remain open.
26 In Mazhar, the operation of s 425 (as amended) was considered by Goldberg J in connection with a claim that the Tribunal had failed to provide the applicant with an adequate interpreting and translation service. After citing the observations made by the Full Court in De Silva (pars 8 - 9), Goldberg J said (pars 31 - 32):
"These passages suggest that where the applicant appears, but is not able through the conduct of the Tribunal to give evidence or present arguments, albeit that the applicant has been invited by the Tribunal to appear, then there will be a contravention of s 425(1). I agree with the observations of Wilcox J in Xiao (par 30 above) that events subsequent to the invitation, which must remain open, are not necessarily immaterial. The invitation must not be a hollow shell or an empty gesture. If an invitation to appear is extended to an applicant, where the Tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the Tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the Tribunal. If that situation arises the Tribunal will not have fulfilled its obligation under s 425(1)."
27 I respectfully agree with Goldberg J that the invitation, which must remain open, must not be a hollow shell or an empty gesture. An illusory invitation, or an invitation withdrawn, could not satisfy s 425.
28 In the present case, the invitation did remain open and, outwardly at least, it was acted upon by the applicants. Can it be said that in the present circumstances, the invitation was no more than a hollow shell or an empty gesture?
29 In determining this question, I accept in the applicants' favour each of the matters raised by the first applicant in her affidavit, that is to say, in essence, that there were additional matters which she wished to draw to the attention of the Tribunal and did not do so, in some cases by inadvertence or confusion, in others by interruption by the interpreter or the Tribunal. It is also true that the transcript shows that the Tribunal did vigorously cross-examine the first applicant. But it cannot, in my view, be a fair characterisation of the invitation to appear that it was an empty gesture or a hollow shell. The Tribunal was not bound to listen in silence. Indeed to do so, without indicating its concerns, could indicate that the invitation to appear was, in truth, no longer open. Whilst, therefore, I do not accept the Minister's argument that Goldberg J's decision should not be followed, I am satisfied that the formulation of the essential test as propounded by Wilcox J and Goldberg J, following the approach in De Silva, was satisfied in the present circumstances. In so concluding, I take as I think one must, a "by and large" or broad approach to the question of characterisation. In other words, in my opinion, it is neither necessary nor appropriate, in this characterisation exercise, to embark upon a fine or precise analysis of the course of the interview, as the applicants' argument invited the Court to do.
30 In the circumstances, I need not consider the Minister's objections to the admissibility of part of the transcript or his alternative argument on the merits.
ORDERS
31 The application must be dismissed, with costs.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont. |
Associate:
Dated: 9 February 2001
Counsel for the Applicant: |
C Colborne |
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Solicitor for the Applicant: |
Siva Logan Solicitors |
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Counsel for the Respondent: |
Mr J Smith |
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Solicitor for the Respondent: |
Blake Dawson Waldron |
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Date of Hearing: |
29 January 2001 |
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Date of Judgment: |
9 February 2001 |
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