M55 v Minister for Immigration & Multicultural & Indigenous Affairs

The legislation 5 Section 424A of the Migration Act provides: '(1) Subject to subsection (3), the Tribunal must: (a) give to 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. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or

(c) that is non-disclosable information.' 6 Section 441A of the Migration Act specifies methods by which the Tribunal gives documents. By subs (2), one method consists of a member handing the document to the recipient.

The information on which the Tribunal relied 7 On 16 May 1997, the appellant signed an application for a student (temporary) visa on the approved form, which he then submitted. On the form, he supplied information about his educational qualifications and his employment experience. With the application, he submitted a number of documents including certificates of his educational qualifications, documents relating to his employment, and documents designed to establish his financial capacity to undertake study in Australia. There was a letter from the appellant's brother in Sri Lanka, with attached documents, designed to establish that the brother held substantial assets in Sri Lanka, including a house and land. 8 The appellant's application for a protection visa was also made using the form approved under the Migration Act for such an application. In the form, the appellant gave details of his current passport. He also attached a copy of that passport, certified by a legal practitioner to be a true and complete copy. In answer to a question in the form, which sought information as to how the appellant had left Sri Lanka, he stated that he had left legally, and provided details of his exit permit by referring to the copy passport. 9 Prior to the Tribunal's hearing of the case, the appellant's barrister forwarded to the Tribunal a written submission. This submission included the following statements: 'The applicant's claims are set out in a detailed statement to the Department of Immigration and Multicultural Affairs (the Department) and interview with the delegate on 15 December 1998. ... The detail of the claim is set out in the following material contained in the file of the Department and/or the Tribunal: · Application for Protection Visa, Forms B and C · Statement to the Department and interview with the delegate'.

The Tribunal's use of the material 10 In its reasons for decision, the Tribunal summarised the material in the appellant's original application for a protection visa. The Tribunal also recorded the proposition that, in the course of preparing for his review by the Tribunal of the decision to refuse him a protection visa, the appellant had requested the Department of Immigration and Multicultural Affairs to provide him with a copy of his application for a student visa, and that this had been made available to him. 11 In summarising the evidence given by the appellant at the Tribunal hearing, the Tribunal said this:

'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.'

16 The Tribunal went on to say that it rejected the claim that the appellant faced a real chance of persecution by reason of an imputed political opinion. It also found that he would not face a real chance of persecution by returning to Sri Lanka as a failed asylum-seeker.

The judgment of the federal magistrate 17 The federal magistrate held that s 424A of the Migration Act did not apply to the information contained in the appellant's passport, because the passport was provided by the appellant himself for the purposes of his protection visa application. In her Honour's view, the passport must also be taken to have been given for the purposes of his application to the Tribunal to review the decision of the Minister's delegate. The passport was therefore excluded from the operation of s 424A(1) and (2) by s 424A(3)(b). In her Honour's view, the circumstances that the appellant was able to obtain a renewal of his passport, at a time when he claimed to be wanted by the authorities, and to depart through Colombo airport without incident, having provided his correct particulars, were known by the appellant to be material issues at all times during the processing of his protection visa application, including the review by the Tribunal. The Tribunal's reasoning processes, or potential factual conclusions, did not have to be communicated by the Tribunal to the appellant. They were not 'information'. 18 Her Honour referred to the fact that the appellant had been provided with a copy of his application for a student visa, at his request. In her Honour's view, the appellant's barrister's submission to the Tribunal incorporated by reference some of the material accompanying the student visa application, and thereby placed that information before the Tribunal. Her Honour recognised that the documents relating to the financial circumstances of the appellant's brother and mother came to the Tribunal's attention solely from the Tribunal's examination of his student visa application. Those documents were not given either for the purposes of the protection visa application, or for the purposes of the application to the Tribunal.

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.

The appeal 21 By his amended notice of appeal, the appellant challenged the federal magistrate's conclusions as to the effect of s 424A of the Migration Act. He contended that s 424A did apply to the information contained in the passport, because the appellant did not supply the passport for the purposes of the application for review. Nor did the Tribunal provide particulars of the information contained in the passport or any statement as to its relevance to the review. Similarly, as regards the documents attached to the student visa application, the Tribunal did not provide particulars of the information it considered would be the reason, or a part of the reason, for affirming the decision of the Minister's delegate. Nor did it make any attempt to ensure that the appellant understood why the information was relevant to the review.

Information 'the applicant gave for the purpose of the application' 22 There is authority to the effect that the words 'the application' in s 424A(3)(b) of the Migration Act mean the application to the Tribunal for review of an earlier decision, and not the original application for a protection visa. See Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 (2001) 110 FCR 27 at [35]. There is much in the context of s 424A(3)(b) to support this view. Section 412 uses the phrase 'an application for review' several times. Section 413 then reverts simply to 'an application'. Section 416 again uses 'an application for review'. Section 423, which is found in Div 4 of Pt VII of the Migration Act, along with s 424A, refers to an applicant for review, but s 424A(1)(a) simply refers to 'the applicant'. Section 425 refers to 'the applicant'. So do ss 425A, 426, 426A and 429A. Thus, 'an application' and 'the applicant' are used frequently as a shorthand form of saying 'an application for review' and 'the applicant for review'. Further support is gained from a comparison with s 57(1)(c), which contains a provision similar to s 424A(3)(b), relating to consideration at the primary level by the Minister or a delegate of the Minister. 23 As far as I am aware, Al Shamry has not been overruled. Both the federal magistrate and I are bound to hold that 'the application' to which s 424A(3)(b) refers is the application to the Tribunal for review, and not the original application for a protection visa. Information given for the purposes of the original application for a protection visa is not excluded by that circumstance from the obligations imposed on the Tribunal by s 424A(1) and (2).

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.

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?

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.

Conclusion 37 It follows that the appeal must be dismissed. Although the federal magistrate was in error in a couple of respects, her errors did not affect the outcome, because the appellant was disentitled to the relief he sought in respect of the Tribunal's decision by discretionary factors. 38 No reason was advanced, and none appears, why the usual rule, that costs follow the event, should not be followed. The appellant will therefore be ordered to pay the Minister's costs of the appeal. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Solicitor for the appellant: Ravi James & Associates

Solicitor for the respondent: Australian Government Solicitor