Minister for Immigration and Border Protection v MZAIV

The Federal Circuit Court Proceeding 19 The first respondent sought judicial review by the Federal Circuit Court of the Tribunal's decision. On 13 October 2015, the Federal Circuit Court made orders quashing the Tribunal's decision and requiring that the Tribunal reconsider and determine the matter according to law. 20 The Federal Circuit Court's decision was based on three key findings: (1) The Tribunal erred in finding that s 36(2B)(a) of the Act applied because it asked what the first respondent could or should do to avoid the risk of harm - namely, that he could or should refrain from asking questions regarding what had happened to his father and uncle - rather than what he would do. At [21]-[25], the Federal Circuit Court found that this was the error identified in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 (S395), as explained by Perry J in SZTFI v Minister for Immigration and Border Protection [2015] FCA 322; 231 FCR 222. (2) The Tribunal erred in finding that s 36(4) of the Act did not apply because, while the country information upon which the Tribunal relied stated there was "[n]o information" indicating that "Indian citizens living in Nepal have been targeted or harmed as a result of conflicts originating in India, or originating in Punjab state", the Tribunal's finding at [70] - which I have reproduced at [16] above - could not stand "without a finding that there are Indian asylum seekers who have relocated to Nepal": [28]. There was, the Federal Circuit Court concluded at [28], "an essential link missing". (3) The Tribunal breached s 425 of the Act because it failed to give the first respondent advance notice of what the new issue was that the Tribunal wanted to raise with the first respondent at the second hearing: namely, whether he could safely relocate to Nepal for the purposes of s 36(3). The generic notice issued by the Tribunal was, the Federal Circuit Court found, not sufficient in the circumstances. The first respondent was "taken completely by surprise by this new issue and had no opportunity to consider it in advance", and did not have the benefit of a migration agent.

The Proceeding in this Court 21 The Minister appeals to this Court on the following four grounds: 1. The Federal Circuit Court erred in finding that the Second Respondent committed jurisdictional error in rejecting the First Respondent's claim to fear significant harm by determining what the First Respondent should do, as opposed to would do, to avoid the harm if returned to India, because: a. The Federal Circuit Court did not address the question of the proper construction of the Second Respondent's reasons for decision; b. The Second Respondent's reasons, properly construed, reveal that it did not in fact determine what the First Respondent should do to avoid the harm and thereby did not fall into the error found by the Federal Circuit Court. 2. Alternatively to 1, the Federal Circuit Court erred by following the Federal Court's decision in SZTFI v Minister for Immigration and Border Protection [2015] FCA 322 and the High Court's decision in S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 in relation to the Second Respondent's consideration of the First Respondent's claims under ss 36(2)(aa) and 36(2B) of the Migration Act 1958 (Migration Act). 3. The Federal Circuit Court erred in finding that the Second Respondent committed jurisdictional error in finding that s 36(4) of the Migration Act did not apply to the First Respondent, because: a. The Federal Circuit Court impugned paragraph 70 of the Second Respondent's reasons as revealing an omission of a material fact; b. Paragraph 70 of the Second Respondent's reasons was, primarily, an extract of country information and could not be impugned for the reasons given by the Federal Circuit Court; c. Paragraph 71 of the Second Respondent's reasons, properly construed, is a statement about the Second Respondent's lack of satisfaction about the elements of s 36(4) of the Migration Act; d. It was open on the material that was before the Second Respondent for it not to be satisfied of the elements of s 36(4) of the Migration Act in relation to the First Respondent's claims. 4. The Federal Circuit Court erred in finding that the Second Respondent denied the First Respondent procedural fairness in relation to the issues considered in its second hearing, because a. The issues that were dispositive of the relevant claim were identified by the Second Respondent during the second hearing; b. The First Respondent was afforded a reasonable opportunity of responding to the issues that were raised by the Second Respondent during the second hearing; c. The First Respondent did not seek an adjournment or additional time to respond to the issues that were raised by the Second Respondent during the second hearing; d. Alternatively to a.- c., the First Respondent has not demonstrated any practical injustice that flowed from any breach of procedural fairness by the Second Respondent. 22 In addition to contending that the decision of the Federal Circuit Court was correct, the first respondent relies on four further grounds in a notice of contention: The Second Respondent's finding that s 36(2B)(a) of the Act applied to the First Respondent was affected by jurisdictional error for the reasons found by the Federal Circuit Court; also because: 1. The Second Respondent considered the reasonableness of relocation without reference to its requirement that the First Respondent refrain from pursuing the issue of his father's disappearance; alternatively, his ability to do so in the event that he relocated. (See Ground 2 in the Federal Circuit Court.) The Second Respondent's finding that s 36(4) did not apply was affected by jurisdictional error for the reasons found by the Federal Circuit Court; also because: 2. The Second Respondent: a. imposed a requirement as to how the First Respondent must behave in order to avoid significant harm in Nepal; and/or b. made no findings about how the First Respondent would in fact behave in Nepal; alternatively the reasons for this. (See Ground 4 in the Federal Circuit Court.) 3. The Second Respondent relied solely on country information without any regard to the First Respondent's individual circumstances, his claims or to centrally relevant material. (See Ground 5 in the Federal Circuit Court.) Further or alternatively to the Federal Circuit Court's finding that the Second Respondent denied the First Respondent procedural fairness in respect of the question whether s 36(4) of the Act applied: 4. It was legally unreasonable in all the circumstances for the Second Respondent: a. to not offer to adjourn the hearing to allow the First Respondent time to consider this new issue and prepare material and submissions; and/or b. to proceed to determine the point against the First Respondent just 10 days later. (See Ground 7 in the Federal Circuit Court.) 23 The first respondent also submitted that the Minister should not be permitted to raise appeal ground 2 denying the applicability of S395 to complementary protection claims because the Minister did not pursue that point before the Federal Circuit Court. 24 The Minister did not concede leave was required to raise ground 2 of the notice of appeal, but in substance senior counsel developed the argument on the basis that leave was required. I consider leave is required and will deal with the matter on that basis.

Ground 1: The Tribunal's findings on avoiding risk of harm 29 This ground of appeal turns on the Minister's submission that the Federal Circuit Court misunderstood the Tribunal's reasons, which led it to identify a jurisdictional error of the kind described by the High Court in S395 when in fact there was none. 30 The Minister submitted the Tribunal found that the risk to which the first respondent was exposed was localised to his home region in the Punjab: that is, it was a risk based on his physical presence in a particular region. That is why, the Minister submitted, the Tribunal went on to find relocation to be reasonable - because it was satisfied the risk it had accepted and identified for the first respondent in the Punjab did not exist anywhere else in India. 31 The Minister submitted that nothing in the Tribunal's reasons could fairly be understood as requiring or expecting the first respondent to modify his behaviour in the place of relocation to avoid real risk of significant harm. That, the Minister submitted, was why the Tribunal used the words "local" and "locally" in [59] of its reasons - it was speaking of the region of the Punjab. 32 The first respondent submitted that, at the least, the Tribunal's reasons were ambiguous, and that ambiguity justified the Federal Circuit Court's resort to the transcript of the first hearing before the Tribunal. When the transcript was read together with the reasons, the first respondent submitted it became apparent that the Tribunal did indeed approach its decision about relocation pursuant to s 36(2B) by impermissibly deciding relocation would be, or could be, reasonable (and safe) for the first respondent if he were prepared to desist from seeking justice and an explanation about what happened to his father and his uncle. 33 The first respondent submitted the hearing transcript could be used in this way, but senior counsel for the first respondent did not seriously challenge the propositions from Kelly v Australian Postal Corporation [2015] FCA 1064; 67 AAR 359 upon which the Minister relied. In Kelly, Griffiths J said at [51]-[53]: Nor was there any legal obligation upon the AAT to explain in its reasons for decision why it did not adhere to observations which were made by it during the course of the hearing, such as those set out in [34] above. It is not unusual in the course of such a hearing for the Tribunal member to raise preliminary comments and observations as part of the ongoing deliberative process. That does not mean, however, that such remarks are to be characterised as reasons or, indeed, findings of material fact, so as to attract the obligations in s 43(2) and (2B) of the AAT Act. Observations or comments of the sort set out in [34] above are frequently modified or even abandoned when the task of producing reasons for the final decision arises, as Flick J observed in WZAQU v Minister for Immigration and Citizenship [2013] FCA 327 (WZAQU) at [30]. As noted above, in support of its appeal, the applicant placed particular emphasis on the apparent inconsistency between certain remarks made by the AAT in the course of the hearing and its decision to prefer Dr Smith's evidence to Dr Parsonage's. Considerable caution must be exercised in using a transcript for the purpose advanced by the applicant here. In WZAQU at [30] Flick J made the following obiter observations regarding the limited significance of the transcript in construing the reasons for an administrative decision: Whether or not the transcript of the interview may be taken into account when construing the reasons for the recommendation of the Independent Protection Assessor may be left unresolved. A transcript of proceedings may unquestionably be relied upon to prove that claims were in fact advanced and to prove the nature and ambit of those claims. Reference to the transcript of November 2011 could thus be made to give content to the claims advanced by the Appellant, although the nature of those claims is in any event largely made apparent from paragraphs [40] to [42] of the reasons for decision. But considerable reservation is expressed as to whether reference to the transcript may also be made for the purpose of construing what was intended to be conveyed by paragraph [98]. It has been concluded by the High Court that the transcript of a proceeding forms no part of the "record" when seeking certiorari to correct error of law on the face of the record: Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 180-181 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. Whether the same considerations which led to that conclusion are apposite to considering whether a transcript can be relied upon to construe reasons for an administrative decision can also be left unresolved. But that which is common to both is a concern as to whether recourse to a transcript would only encourage parties seeking to impugn or support (or supplement) a statement of reasons by scouring the transcript with a view to minutely discerning differences between the transcript and reasons. To do so may only encourage impermissible reliance upon thoughts or queries raised during the course of a hearing which are only later abandoned at that stage when reasons are being prepared. Even if recourse is made to the transcript in the present proceeding, that transcript provides no assistance -- not surprisingly -- in construing what was intended to be conveyed by paragraph [98]. I respectfully agree with those observations and consider that they have particular application here. In the circumstances here, the reasons given by the AAT for its decision, including its preference for Dr Smith's evidence over that of Dr Parsonage, must be the central focus in the appeal. As Flick J commented, parties should not be encouraged to pour over the transcript with a view to identifying differences between the transcript and reasons. The reality often is that a member of a tribunal (and, for that matter, a court) may make observations or raise issues for comment during the course of the hearing not in any concluded fashion but rather to test a tentative proposition which may later no crystallise in the decision-maker's ultimate decision, including in the reasons for that decision. 34 I respectfully agree with the propositions set out by Griffiths J in Kelly. 35 There is no doubt that during the first hearing, the Tribunal made several remarks to the first respondent which, on any view, were loosely expressed and somewhat confrontational, including remarks such as "why can't you just go back and keep your mouth shut and stop pushing this issue? Because that's clearly what's gonna upset them". However, in my opinion, the remarks were just that: loose and colloquial remarks during a hearing in which the Tribunal was testing various aspects of the first respondent's claims. 36 When it came to setting out its reasons for deciding to affirm the decision under review, and in particular its reasons for deciding that the first respondent faced a real risk of significant harm as a necessary and foreseeable consequence of his removal from Australia to India, if he returned to the Punjab, in my opinion the Tribunal did not approach that finding by imposing any requirement or expectation on the first respondent that he should behave in a particular way, or that he should not continue to agitate for an explanation about his father's and uncle's disappearances. 37 Rather, the Tribunal accepted that, irrespective of what the first respondent did, the Punjab police were likely to seek him out and harm him if he returned to the Punjab. That is the effect of its finding at [56] of its reasons, which I have extracted at [11] above. I have also extracted [58]-[59] of the Tribunal's reasons at [14] above. There the Tribunal found the limited extent of the interest of the Punjab police in the first respondent was that he not "stir up trouble locally" (at [58]) and this was, as the Minister submitted, a reference to within the Punjab region. The first sentence of [59] is to the same effect. 38 Thus, the Tribunal's reasoning in the remainder of [59] was, in substance, that if the first respondent was not living in the Punjab, the Punjab police would not be sufficiently interested in him to search for him elsewhere and do him harm. On that basis, the Tribunal was satisfied that the terms of s 36(2B)(a) were satisfied in respect of the first respondent. 39 Ground 1 of the appeal should be upheld. The Federal Circuit Court mischaracterised the Tribunal's reasoning process, perhaps because of too heavy reliance on what the Tribunal said during the first hearing. Although there were parts of the Tribunal's reasons to which the Federal Circuit Court's finding at [23] of its reasons could have referred, if that is the case, the Federal Circuit Court misunderstood those parts of the Tribunal's reasons. 40 In those circumstances, whether or not the first respondent in fact should be taken to have made it clear to the Tribunal that he would continue to seek justice for his father and uncle on return to India is not material to outcome of this ground of appeal. The Tribunal was not, as I have said, focussed on whether the first respondent might, outside the Punjab, continue to seek an explanation for what had happened to his father and uncle. The Tribunal found the interests of the Punjab police in the first respondent did not extend to hunting him down outside the Punjab without reference to whether he did, or did not, continue to seek an explanation for his father's and uncle's disappearance. The first respondent may consider that it is not a factual finding the Tribunal should have made, but it was part of the Tribunal's task to reach its own factual conclusions, and that conclusion is not affected by the error identified by the Federal Circuit Court.

Ground 2: Whether S395 applies to complementary protection claims 41 My conclusion on the first ground of appeal renders it unnecessary to decide the Minister's new ground of appeal, relating to the applicability of the principles articulated by a majority of the High Court in S395 (at [43]-[44] per McHugh and Kirby JJ and at [82] per Gummow and Hayne JJ ) to the operation of s 36(2)(aa) of the Migration Act. I confine myself to explaining why leave to raise that ground is required, and should be refused. 42 Despite some effort in oral submissions to persuade me the ground was raised, or adverted to before the Federal Circuit Court, in my opinion it clearly was not. That was because the Minster pursued the contention that the first respondent never in fact foreshadowed to the Tribunal that he would continue to seek justice for the disappearance of his father and uncle if he were returned to India (or Nepal) and therefore the S395 question did not arise. That was the forensic judgment made by the Minister's legal representatives, in terms of formulating the Minister's response to the first respondent's judicial review application. 43 The contention as it is now expressed is a wide ranging and significant argument which, if correct, would circumscribe in a substantial way the scope and operation of the complementary protection provisions of the Migration Act. It is a new argument, and leave is required. 44 The merits of a new ground, even when it is a question of law, are always important to the exercise of the discretion to grant leave: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48]. The Minister's contention about the inapplicability of S395 principles to the complementary protection regime under the Migration Act involved complex arguments of statutory construction, as well as consideration of the purpose of such provisions. It is a contention of considerable breadth, and could affect decision making at both a merits and judicial review level in many cases. The submission had many layers, and I have not addressed them because it is unnecessary to do so. In those circumstances I consider the appropriate course is to refuse leave to raise the new ground.

Ground 4: The Tribunal's invitation to a second hearing 51 The Minister submitted that the Federal Circuit Court was in error to characterise what occurred by reason of the Tribunal's second hearing invitation as a breach of s 425. Relying on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152, he submitted that s 425(1) of the Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal, and that was "to be invited 'to give evidence and present arguments relating to the issues arising in relation to the decision under review'": SZBEL at [33], quoting s 425(1) (emphasis in SZBEL). He submitted that was done, and there was no need to give notice of the issues of concern in advance of the hearing. Although I have concluded this ground of appeal should succeed, there are two aspects of the Minister's submissions which it is necessary to deal with before to turning to explain why the ground should succeed. 52 First, the proposition that there was no need to give notice of the issues of concern in advance of the hearing is drawn almost directly from a sentence in the judgment of Besanko J (Siopis J agreeing) in AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; 189 FCR 494 at [39]. 53 The Minister's reliance on this passage takes the statement of Besanko J out of context. AZAAD was a case where his Honour in fact found a denial of procedural fairness in respect of the way in which the hearing was conducted. Siopis J agreed with his Honour's conclusions. His Honour proceeded on an orthodox application of the principles in SZBEL, which he had set out earlier in his reasons for judgment at [34]-[35], and found (at [62]-[63]): An applicant for review is entitled to be advised of the issues on the review and to be given the opportunity to expand on his or her evidence and explain why their account should be accepted. The appellants were, in the circumstances of this case, entitled to be advised of the fact that the key elements of the first appellant's case were in issue. It seems to me that that might have been done in one of two ways. First, the Tribunal might, at the outset of the hearing, have advised the appellants that the key elements of the first appellant's account were in issue and that they should give whatever evidence they wished to in support of their claims. That might have led the first appellant to recount her evidence in detail and to the second appellant giving evidence. The first appellant might have said something that had the "ring of truth" about it and the second appellant might have been able to corroborate some aspects of the first appellant's claim or even just one aspect which might have proved important. The Tribunal did not adopt that course. In fact, the Tribunal said it did not propose to take evidence from the second appellant. The fact that the Tribunal said it was not bound by the delegate's findings or those of the previous Tribunal was not enough. In the alternative, the Tribunal might, through the question and answer approach it adopted in this case, have asked questions which enabled the first appellant to expand on her evidence with respect to the key events. The Tribunal did not do that. It is not suggested that the six matters relied on by the Tribunal were irrelevant or could not support the conclusions it reached. The ground that the Tribunal's decision was irrational, illogical and not based on findings or inferences of fact supported by logical grounds was not (correctly in my view) pursued in this Court. Nevertheless, the matters relied on by the Tribunal did not directly go to the key elements of the first appellant's account. Questions about them did not give the first appellant the opportunity to relate the key elements of her account which may have involved evidence that persuaded the Tribunal that although some aspects of the first appellant's account were questionable, her basic account should be accepted. I do not think that it is enough that by the latter stages of the hearing the appellant was on notice that the key elements of her account were an issue on the review. [Emphasis in original.] 54 There are any number of ways a Tribunal can comply with its procedural fairness obligation, as understood in SZBEL. One way is by including in the hearing invitation particular issues it wishes to raise with an applicant, and this is often done. If that is not done, then there may be a greater obligation on a Tribunal to give an applicant a meaningful and reasonable opportunity to present further evidence, or provide further information, if matters are not raised in advance of a hearing. What happens at a hearing under s 425 may mean, in a particular case, that a failure to give advance notice, combined with what occurs at the hearing, results in a denial of procedural fairness. In my opinion that was how the Federal Circuit Court, and the first respondent in his submissions, approached the matter in this appeal. 55 For reasons I explain, I do consider the Federal Circuit Court was in error to find a denial of procedural fairness, but that conclusion should not be seen as an endorsement of the somewhat absolute proposition put by the Minister about the decisiveness of the terms of a written hearing invitation to an assessment of whether procedural fairness has been afforded. 56 Second, the obligation imposed by s 425 on a Tribunal is of a somewhat different character to that for which the Minister contended on the appeal. 57 Section 425 has been consistently construed, in this Court and in the High Court, as imposing an obligation to afford procedural fairness which extends beyond the Tribunal ensuring that an applicant is able to attend for a hearing. Section 425 has been consistently construed as going to the manner in which the Tribunal must conduct a hearing, and the kinds of issues it may need to raise with an applicant, including that the opportunity to appear and present evidence and arguments must be a real and meaningful one. 58 The phrase "real and meaningful invitation" appears to originate in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553, in which the Full Court identified at [37] three circumstances where that requirement might not be met: On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a "real and meaningful" invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: NAHF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 100. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 322; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788. 59 In SZBEL itself, the High Court held that a Tribunal had breached s 425(1) by inviting the applicant to a hearing and stating in the invitation that on the materials before it the Tribunal was unable to be satisfied that a protection visa should be granted, but failing to inform the applicant in the invitation or at the hearing of the particular points upon which the Tribunal was not persuaded. The Court held at [44] that: The Tribunal did not accord the appellant procedural fairness. The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review. 60 It can be seen the adjective used in SZBEL is "sufficient", but there is no suggestion that the substance of the earlier authorities to which I have referred was disapproved. Adjectives such as "meaningful", "reasonable" and "sufficient" in my opinion all carry the same kind of content. The individuality which attaches to both the detailed content of procedural fairness in a particular case, and the manner in which the obligation is discharged, was emphasised by the High Court at [47]: … there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. [Emphasis in original.] 61 The High Court has addressed or referred to s 425 seven times since SZBEL: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123; Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; 238 CLR 627; Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; 238 CLR 489; SZGPA v Minister for Immigration and Citizenship [2008] HCASL 58; SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190. None of those decisions supports the proposition that s 425 only imposes requirements in respect of the form of invitations to applicants, as opposed to imposing broader requirements of procedural fairness in relation to the content and manner of a hearing conducted pursuant to an invitation made under s 425. 62 On this appeal, rather than referring to any of these authorities in detail, the Minister relied on observations by Yates J in Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052 at [52]-[54], where his Honour said, amongst other things, that s 425 is directed to the invitation, rather than the hearing itself, and that s 425 is not "an overarching or 'catch-all' procedural fairness provision". To the extent the Minister sought to rely on these observations in support of the fourth ground of appeal, I respectfully consider that the remarks of Yates J in SZTJF about s 425 may be more narrowly expressed than the authorities require. 63 The question will always remain whether a particular applicant in the particular circumstances of her or his review by the Tribunal was afforded a meaningful opportunity to appear before the Tribunal, and to make arguments and present evidence. Not a token, or unfair opportunity, but a meaningful one. Nevertheless, it is an opportunity - the Tribunal does not have to go out of its way to ensure an applicant makes the most of the opportunity that is given. With hindsight, an applicant may invariably consider she or he could have made more of the opportunity she or he was given. In my opinion that is the case here. 64 In my opinion the transcript of the second hearing reveals that once the second hearing began, the Tribunal did direct the first respondent's attention to the further issue the Tribunal saw as relevant to the determination of the first respondent's review. Now, we talked about your claims last time and I haven't made my final decision yet, obviously. I've still got some concerns that I identified with you last time, but there's also a new issue, which has arisen and which - even if I accept your claims and I find that your risk of persecution or have a significant harm in India, that there's a possible issue of your right to enter and reside in a third country. … … There's a newish section of the act, which says - the Migration Act which says that Australia doesn't have any protection obligations to a person if they have the right to enter and reside in another country even if that's only temporarily and the person has not taken all possible steps to make use of that right, but also, the person - it needs to be established that the person doesn't have a well-founded fear of refugee convention persecution in that country or a well-founded fear of being sent back to the country where they will face persecution at their home country, or they must not be facing a real risk of significant harm in that country. Now, the reason I'm mentioning this is that you appear to have the right to enter and reside in Nepal because of the 1950 Treaty of Peace and Friendship between India and Nepal and that gives its - the citizens of both countries - basically, they have the right to go and live in the other country. Part of it says, governments of India and Nepal agree to grant on a reciprocal basis to the nationals of one country in the territories of the other - the same privilege is in the matter of residence, ownership of property, participation in trade and commerce movement and other privileges of a similar nature. Now, on a practical level, if you're in India, the country information indicates that you can simply cross at the border. You often don't even need any ID. If you're coming by air, for example, if we decided that you weren't entitled to protection, but you didn't wanna go back to India, then as long as you had a passport, you'd be able to fly into Kathmandu and you'd be admitted there, and I understand you've got a passport. Your passport's valid 'til 2016, I believe. 65 It is not to the point that there was more material the first respondent might have put forward now that he sees, in hindsight, that his review was unsuccessful. In my opinion that was all that the new evidence before the Federal Circuit Court amounted to. 66 The Tribunal did give the first respondent an opportunity to file further material, albeit in the context of saying it was likely to finalise his review within a few weeks. The first respondent did not seek an adjournment. I am satisfied the first respondent would have done so if there was anything material he had at the time wished to put forward but needed a considerably longer period to obtain. The transcript of both hearings reveals an individual who is not afraid to speak his mind, and to put the Tribunal on notice of the nature of his claims and his evidence. 67 The Tribunal did confront the first respondent during the second hearing with the essential aspects of possible entry and residence in Nepal, and the issues the Tribunal saw as arising from its consideration of that as an option it was required by the terms of s 36(3) and (4) to examine. 68 Senior counsel for the first respondent submitted that the time spent by the Tribunal on these aspects was only nine minutes. Accepting the accuracy of that calculation, the meaningfulness of the opportunity is not to be measured solely by the amount of time spent on an issue. In those nine minutes, there were sufficient questions and opportunity to answer for the first respondent to be able to put the Tribunal on notice if there was anything substantive he had to say about Nepal. What is clear from the transcript is that he was flummoxed by the Tribunal's suggestion, knew very little about Nepal and had no information to give the Tribunal, nor did anything he said suggest he would have, at the time, had ready access to any more information which could assist him if given more than the couple of weeks the Tribunal allowed. He indicated he would go on the internet. There was no evidence whether he did, or not. What is clear is that he sent nothing to the Tribunal. 69 It is correct to describe what happened at the second hearing as the first respondent being taken by surprise, in the sense of this new issue about entry and residence in Nepal being a surprise to him. But by the end of the second hearing in my opinion the first respondent well understood what the Tribunal was proposing he could do. It was just that he had no answer to it, other than the ones he had already given about his fear the Punjabi police would track him down wherever he was. 70 Therefore, despite my opinion that the Minister's submissions on the scope and operation of s 425 are too narrow and do not reflect the approach taken by the High Court in SZBEL, or in other decisions such as SZFDE at [31]-[32] and SZJSS at [29], I am satisfied that the Federal Circuit Court erred in finding a denial of procedural fairness by the Tribunal in respect of its obligations under s 425. The first respondent was given a fair opportunity to respond to the suggestion he could safely enter and reside in Nepal. 71 Ground 4 should be upheld. 72 During oral argument, the operation of s 424AA of the Migration Act was raised by the Court. Senior counsel for the first respondent submitted the Tribunal was obliged to comply with its terms by putting the "new issue" about Nepal to the first respondent. The Minister responded in two ways: first by contending that a breach of s 424AA had never been part of the first respondent's arguments, and second by contending that in any event a breach of s 424AA was not a jurisdictional error. The first contention, whilst correct, may not necessarily have stood in the way of the Court considering the argument if it was appropriate to do so. However, the Minister's second contention is supported by the Full Court's decision in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; 174 FCR 415 at [77] per Tracey and Foster JJ, as explained by Yates J in SZTJF at [27]-[28]. In SZMCD, it was held that s 424AA involves a discretionary process by the Tribunal, such that if the Tribunal elects not to follow that process and the information is otherwise information that the Tribunal is required by s 424A to put to an applicant, there will be jurisdictional error, but not because of a breach of s 424AA but rather because of a breach of s 424A. With respect, it is not wholly apparent on the terms of s 424AA that the section is only intended to operate in conjunction with s 424A, but there is no doubt that is the effect of the Full Court's decision in SZMCD, by which I am bound. Accordingly, in the present appeal there is no need to consider s 424AA any further.

[2009] HCA 37

[2007] HCA 40

[2007] HCA 35

[2008] HCASL 58

(2004) 222 CLR 1

(2003) 216 CLR 473

(1995) 184 CLR 163

(2003) 128 FCR 359

(2002) 121 FCR 100

(2002) 122 FCR 322

[2010] FCAFC 156

[2014] HCA 45

[2013] HCA 18

[2003] FCAFC 126

[2009] FCAFC 46

[2013] FCA 327

[2014] FCAFC 1

[2015] FCA 1052

[2009] HCA 39

[2010] HCA 48

[2009] HCA 30

[2007] HCA 26

[1995] HCA 58

[2001] FCA 1788