M55 v Minister for Immigration & Multicultural & Indigenous Affairs - [2005] FCA 131 - FCA 2005 case summary — Zoe

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M55 v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 131

Federal Court of Australia|2005-02-25|Before: Gray J

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Court

Federal Court of Australia

Decision date

2005-02-25

Before

Gray J

Source

Original judgment source is linked above.

Judgment (17 paragraphs)

[1]

The nature and history of the proceeding 1 The question agitated in this appeal is whether the Refugee Review Tribunal ('the Tribunal') failed to comply with its obligations pursuant to s 424A of the Migration Act 1958 (Cth) ('the Migration Act'), or denied the appellant procedural fairness. The appellant contends that the Tribunal was obliged to bring to his attention, in the specific manner for which s 424A provides, certain information on which it relied in making findings against him. He also contends that the Tribunal was obliged to tell him why it regarded the information as significant, and how it proposed to use it against him, so as to give the appellant an opportunity to respond. 2 The appellant is a citizen of Sri Lanka and a Tamil. He arrived in Australia on 9 July 1997, as the holder of a student visa. On 1 May 1998, he made an application for a protection visa, pursuant to s 36 of the Migration Act. On 31 December 1998, a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases 'the Minister') refused to grant a protection visa. The appellant applied to the Tribunal for a review of that decision. The Tribunal conducted a hearing on 12 March 2002, with the assistance of an interpreter in the Tamil language. The appellant was represented by a solicitor, who is also a registered migration agent, and also by a barrister. On 14 March 2002, the Tribunal decided to affirm the decision of the Minister's delegate to refuse to grant the appellant a protection visa. 3 On 3 May 2002, the appellant applied to the High Court of Australia for an order nisi for writs of prohibition, certiorari and mandamus, and for a declaration and an injunction. By order made on 30 July 2002, the application was remitted to this Court, pursuant to s 44(1) of the Judiciary Act 1903 (Cth) ('the Judiciary Act'). By order of this Court, made on 29 November 2002, the proceeding was transferred to the Federal Magistrates Court. On 2 April 2003, the appellant filed an amended application, seeking relief pursuant to s 39B of the Judiciary Act. 4 The application was heard by the Federal Magistrates Court on 21 October 2003. The learned federal magistrate delivered judgment on 7 November 2003. See M55/2002 v Minister for Immigration [2003] FMCA 491. The federal magistrate dismissed the application and ordered the appellant to pay the Minister's costs. It is from that judgment that this appeal is brought.

[6]

'He claimed that he played no active part in getting his passport renewed. An agent named Ravi, based in Colombo, organised everything. His brother did all the work to get his student visa for him. He said he gave his brother his National Identity Card and he went to the Australian Education Centre. The Tribunal put to him that there was a sheet in his student visa file which seemed to indicate that he himself had been interviewed. This sheet contained comments such as "English is good" and "Feels that this course is more comprehensive that [sic] what he has covered in SL". The Applicant stated that this was not so and that he had not done anything in person except undertake his medical examination. The Applicant's adviser told the Tribunal that it would be dangerous to draw an adverse inference on this unless the file actually stated that he had been interviewed. The Tribunal went through each document which had been presented in order for him to be granted his student visa. He stated that some were genuine and some were not. He claimed that the bank statements presented by his brother purporting to show that he had sufficient resources to support his brother's studies in Australia were false. He also claimed that the deed of transfer of land which had been used was fraudulent as was the letter from his mother about her ownership of a house and investments. He claimed the certificates and transcripts of his educational results were genuine as were the letters re his employment.' 12 The Tribunal also recorded that it had raised with the appellant the fact that his passport had not been cancelled, but had been renewed, and the appellant had endeavoured to give an explanation of how this had come about, consistently with his claims. 13 In substance, the Tribunal rejected the appellant's claims that he had a well-founded fear of persecution if he should be returned to Sri Lanka, by reason that he was a Tamil and also for his political opinion. It is unnecessary to go to the detail of the facts. Important in the Tribunal's view was the information contained in the documents accompanying the student visa application. The Tribunal said: 'The Applicant's brother is the managing director of a business called Multi Group of Companies. The Tribunal rejects the Applicant's claim that the financial information contained in his student visa file concerning his brother's financial status is false. The bank statements, detailed and covering a period of months, and the deed of transfer relating to property the brother stated that he owned appear to be genuine. The transfer docuemtn [sic] relates to property bought in 1987. It contains all the details one would expect in such a document. There is no convincing reason why it and the other relevant documents would not be genuine. The Applicant's father was a businessman; his brother is also. The Applicant "thought" his brother was still supporting him in Australia, some five years after he arrived here. These factors point to the brother being in a relatively secure financial position. Similarly the Tribunal accepts the letter and document relating to the Applicant's mother's house and funds as genuine. Although the shop business failed after the death of the Applicant's father, this does not necessarily mean that the Applicant and his mother were left destitute. The relevant Australian authorities accepted the documents as genuine and, on that information, gave the Applicant a visa to study here. The Tribunal is unable to accept the Applicant's claim that his family was not in the financial position that it claimed in support of his student visa application. The Tribunal then is satisfied that the Applicant's background is that of at least a moderately well-to-do family and that he himself had forward-looking prospects.' 14 Also important in the Tribunal's view was the issue of the appellant's passport. The Tribunal said: 'What has been an important element in reaching this finding is the claim he has made concerning his exit from Sri Lanka. The Applicant has held a passport since 1992. In 1993 and again in 1994 he used it to go overseas on holidays. He renewed the passport in July 1997, at a time when he claimed he was in hiding. At that time, his original passport still had some months before its expiry date in November 1997. This gave the authorities two opportunities to cancel or confiscate his passport should they have been interested in preventing him from travelling. The Tribunal does not accept the argument that the authorities simply are inefficient and that one hand would not know what the other was doing.' 15 In summarising its reasoning, the Tribunal said: 'Without arguing that there has been any substantial change in the situation for Tamils in the south, it is possible to look at the Applicant's particular situation, as a well-educated employed professional from a business family who has holidayed and studied overseas, who has family in Colombo and who has been permitted to leave Sri Lanka on three occasions and return on two without hindrance, as not the sort of person who faces a real chance of persecution for reasons of his Tamil ethnicity. The Tribunal is satisfied that on this account he does not face a real chance of persecution.'

[9]

19 The federal magistrate referred to the Tribunal's statement that it went through at the hearing each document presented by the appellant in order for him to be granted his student visa. Her Honour referred to the Tribunal's findings about the genuineness of documents that the appellant claimed were not genuine. In her Honour's view: 'The process undertaken by the RRT in eliciting testimony from the applicant about each of the documents which he had submitted in support of the student visa application makes it quite clear that the applicant was given an opportunity to comment on those documents. Indeed, the RRT accepted some of the applicant's testimony as to the documents and rejected other parts of this evidence. Some of that documentary evidence together with the application, oral testimony and submissions made by the applicant, led the RRT to conclude that the applicant came from a moderately well-to-do Colombo family. The RRT was under no obligation to explain further the relevance of the documents, submissions and testimony that went to these matters.' 20 The federal magistrate found that the appellant had not established that the papers in support of the student visa application were not 'handed' to him, or to his barrister, at the hearing, in accordance with s 441A(2) of the Migration Act. Her Honour pointed out that it was open to the appellant to rely on a transcript of the hearing before the Tribunal if it were relevant to an issue raised. The appellant did not make reference to the transcript. Her Honour said that any failure to comply with s 424A was 'at best a technical non-consequential failure to comply'. In practical terms, the appellant had had the opportunity which s 424A is intended to provide. He had learned of material adverse to his claim and was asked to comment on each and every document. He received both notice and opportunity. Her Honour was satisfied that the Tribunal afforded fairness to the appellant in the way in which it dealt with all of the issues before it. If s 424A(2) were not complied with, this procedural omission was not fatal and did not found a ground for review.

[12]

The passport 24 To the extent to which the federal magistrate took the view that provision of the passport as part of the original application for a protection visa was sufficient to exclude the operation of s 424A(1), her Honour was therefore in error. Her Honour was wrong in holding that the provision of the passport for the purposes of the protection visa application must be taken to have been also for the purposes of his application to the Tribunal. 25 That is the not the end of the matter. By means of the written submission of his counsel to the Tribunal, the appellant relied expressly on the terms of his protection visa application. He informed the Tribunal that the detail of the claims was set out in the protection visa application and his earlier statements. He thereby invited reference to the copy passport, which was attached to the application form. There can be little doubt that the appellant intended that the Tribunal should look at this material. In my view, he thereby provided the passport, and the information to be derived from it, to the Tribunal for the purpose of the application for review. This was sufficient for the appellant to have been taken to give the information contained in the copy passport to the Tribunal for the purpose of his application for review, and therefore for that information to fall within s 424A(3)(b) of the Migration Act. This provision operated to exclude the copy passport from the Tribunal's obligations pursuant to s 424A(1) and (2). 26 The Tribunal was under no obligation to explain to the appellant how it proposed to use the information derived from the passport. In any event, it did canvass with him the crucial issue, which was how the appellant managed to renew his passport at a time when he was, according to his account, in hiding. It also canvassed with him the fact that he had managed to leave Sri Lanka lawfully, through the airport, at a time when he claimed that he was wanted by the authorities. 27 The Tribunal did not contravene s 424A by relying on the information it derived from the appellant's copy passport. Nor did it deny him procedural fairness in relation to that information, or in relation to any issue on which it found against the appellant on the basis of that information.

[13]

The documents accompanying the student visa application 28 The documents relating to the financial circumstances of the appellant's family, which accompanied the student visa application, were plainly not given to the Tribunal by the appellant for the purposes of his application for review. They were not given by him for the purposes of his application for a protection visa. Accordingly, on no view of s 424A(3)(b) were those documents excluded from the operation of s 424A(1). 29 The Tribunal clearly considered that information derived from the documents attached to the student visa application was a part of the reason for affirming the decision of the Minister's delegate to refuse a protection visa. In the passages I have quoted in [13] and [15], it is clear that the Tribunal relied on that information as part of its reasoning. 30 In terms of s 424A(1), the Tribunal therefore had an obligation (the word 'must' is used) to provide to the appellant particulars of the information contained in those documents that it considered would be part of the reason for affirming the decision under review. It also had an obligation to ensure, as far as was reasonably practicable, that the appellant understood why that information was relevant to the review, and to invite the appellant to comment on the information. The section is specific in its terms. There must be particulars. There must be an explanation as to relevance. There must be an invitation to comment. The requirements of ss 424A(2) and s 441A make it clear that the particulars, the explanation and the invitation must be in the form of a document. Even if handing to the appellant, or his barrister, in the course of a hearing, a document containing these required elements would have satisfied the requirements of s 424A(2)(a) and s 441A(2), the fact remains that there was no such document in the present case. There was no compliance with the terms of s 424A(1). 31 The federal magistrate took the view that a failure on the part of the Tribunal to comply with s 424A was a mere failure to comply with a procedural requirement, and did not give rise to jurisdictional error. In my view, her Honour was in error in this regard. There is authority that the mandatory provisions of s 424A of the Migration Act impose on the Tribunal an obligation which is a fundamental part of its conduct of a review, and that a failure to comply with the obligation gives rise to jurisdictional error. See Minister for Immigration & Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140 (2003) 131 FCR 1. The Full Court judgment in Applicant NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102 (2003) 129 FCR 214 now suggests that a failure to serve the document in accordance with s 424A(2) might not be regarded as a jurisdictional error. In my view, it cannot be doubted that the absence of particulars, or of any attempt to explain the relevance of the information to the review, or of any specific invitation to comment on the information is a fundamental departure from the obligation imposed by s 424A(1). In the light of the clear authority that a denial of procedural fairness is a jurisdictional error, and the obvious legislative intention that s 424A is to be part of the procedural fairness afforded to an applicant for review, it seems clear that such a contravention must be regarded as a jurisdictional error. See Re: Refugee Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82 and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476. 32 The federal magistrate was therefore in error in holding that the failure of the Tribunal to comply with its obligations pursuant to s 424A(1) of the Migration Act did not amount to a jurisdictional error. The question is whether this error justifies allowing the appeal and either remitting the matter to the Federal Magistrates Court to be heard and determined again, or making the orders that should have been made. There is no doubt that s 28(1)(b) of the Federal Court of Australia Act 1976 (Cth) gives to the Court in the exercise of its appellate jurisdiction the power to make any order that should have been made by the Court from which an appeal is brought. The question, therefore, is what order should have been made?

[14]

Discretionary factors 33 The remedies sought by the appellant in his original application to the High Court are remedies which the High Court has jurisdiction to grant, pursuant to s 75(v) of the Constitution. The High Court's power to remit the matter to this Court, pursuant to s 44(1) of the Judiciary Act was contingent upon this Court having jurisdiction with respect to the subject-matter and the parties. The relevant jurisdiction of this Court is conferred by s 39B(1) of the Judiciary Act, which is the same jurisdiction as that conferred on the High Court by s 75(v) of the Constitution. When this Court further transferred the proceeding to the Federal Magistrates Court, the jurisdiction of the Federal Magistrates Court invoked was the jurisdiction conferred by s 483A of the Migration Act, which is the same jurisdiction as this Court has in relation to a matter arising under the Migration Act. That jurisdiction includes the jurisdiction conferred by s 39B of the Judiciary Act. Accordingly, the Federal Magistrates Court has jurisdiction to grant the remedies of prohibition, mandamus and injunction. The power to grant certiorari, in a case in which prohibition is sought against an officer of the Commonwealth, in good faith, is established by authority. See R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 26, per Gibbs J, with whom Barwick CJ, Mason and Wilson JJ agreed. 34 The remedies are discretionary. The establishment of jurisdictional error on the part of an administrative decision-maker does not provide an automatic right to any of the remedies. Rather, the Court must consider whether there are discretionary factors which would disqualify an applicant from the grant of relief. 35 In the present case, the federal magistrate clearly took the view that such factors existed. Her Honour held that the purpose of s 424A, to provide an opportunity to the appellant to comment on information adverse to his case, on which the Tribunal proposed to rely, had been fulfilled. I agree with her Honour in this respect. The appellant did not resort in the Federal Magistrates Court to producing a transcript of the Tribunal's hearing, for the purpose of demonstrating that the Tribunal had not done what it said it did by way of acquainting the appellant with the significance of the information in the documents attached to his student visa application. Nor did the appellant file in the Federal Magistrates Court any affidavit stating that he had failed to understand, or had not been given an opportunity to understand, the significance of the information in those documents. He did not disclose what other evidence he might have provided to the Tribunal, if it had given him an opportunity to comment on particulars of the information. He did not reveal what submissions he might make, that were not made on his behalf. The fact that the appellant's representative requested a copy of the student visa application, prior to the Tribunal hearing, indicates that the appellant understood the significance of the information contained in that application. It is clear that the federal magistrate was correct to hold that there was no denial of procedural fairness to the appellant. 36 In these circumstances, it is clear that, if she had appreciated that the failure to comply with s 424A(1) of the Migration Act amounted to a jurisdictional error, the federal magistrate would nonetheless have exercised her discretion to refuse relief. Substituting myself for her Honour, I should take the same course.

M55 v Minister for Immigration & Multicultural & Indigenous Affairs

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