Minister for Immigration and Citizenship v MZYCE

Federal Court of Australia|2010-07-22|Before: Gray J

The application to the Federal Magistrates Court 24 The application by the first and second respondents to the Federal Magistrates Court was based on three grounds. The first alleged breach of s 424A(1) of the Migration Act, in that the Tribunal relied on adverse information to affirm the decision under review but did not disclose the information in accordance with s 424A(1). The second ground alleged jurisdictional error constituted by error of law and lack of procedural fairness, no particulars of which were given. The third ground alleged denial of natural justice by failure to provide further time to produce other evidence. The application was accompanied by an affidavit annexing the Tribunal's decision record. 25 On 24 July 2009, when the Federal Magistrates Court conducted its hearing, the federal magistrate made an order permitting the Minister to file further contentions in writing, and the first and second respondents to reply. The date by which the first and second respondents were to file their contentions in reply was 21 August 2009. The first and second respondents did not file any further contentions, whether before or after the expiration of this time limit. Instead, on 4 September 2009, after the time limit had expired, the first and second respondent filed what purported to be a further application, containing different grounds. The first ground alleged that the Tribunal had wrongly applied "the law to the facts as found in relation to the seriousness of harm that constitutes persecution as the newspaper article [sic] provide [sic] by the applicant are not genuine". There followed references to s 91R and s 424A(1) of the Migration Act. The second ground alleged failure to comply with s 424A(1) of the Migration Act in relation to adverse information used by the Tribunal and not given to the first respondent. The third ground was in the following terms: The tribunal has importantly dealt with the aspect of the applicant's claim relating to state tolerance and complicity of the applicants [sic] religion and membership of a particular religion or social group and as result of all he faced financial hardship [sic], to whom the [sic] Australia has protection obligation as a member of such group on base of newspaper article [sic] .And [sic] therefore the tribunal's decision was [sic] involved jurisdictional error and failure of jurisdiction or misapplication of law and procedure [sic] The tribunal conclude [sic] that the applicant can provide more information about the newspaper article [sic] which are true and genuine. The applicant is currently residing in Australia and the [sic] Australia has protection obligation [sic] under the UN convention [sic] and therefore relocation principles is not the correct test by the tribunal. Therefore miss [sic] applying the law is in fact failure of the tribunal's jurisdiction. The matter should be remitted to the tribunal for further determination and to decide in accordance with the law and procedures. 26 Accompanying this further application was an affidavit, annexing a number of documents. The first annexure was a further certificate from Bhrastachar Abhiyan. In the letterhead of this certificate, the second word of the newspaper's title was spelt "Abhiiyan", although the spelling of that word in the seal at the foot of the document matched the spelling in all other documents containing the name of that newspaper. The document certified that the articles dated 17 April 2002, 14 November 2004, 31 July 2006, 24 April 2007 and 25 September 2007 were true and genuine. This was followed by the death certificate and report of post-mortem examination of the daughter of the first and second respondents. There was a document purporting to verify the purchase of a copy of The Sandesh newspaper for Ahmedabad for 9 September 2007. There was material downloaded from the internet concerning The Sandesh Limited, including the contact details of its various offices and material concerning its content and history. That material showed at the foot of each page a universal reference locater (URL) for the page concerned. The material then included an internet page referring to Bhrastachar Abhiyan, but the URL referred to a site called "corruptionabhiyan.com". There followed internet material from Gujarat Samachar, again with a URL for each page. A further affidavit of the first respondent, filed at the same time, produced the newspaper clippings previously relied on, along with their English translations.

The Federal Magistrate's reasons for judgment 27 At [17]-[19] of the federal magistrate's reasons for judgment, his Honour dealt with the grounds stated in the application to that court. In doing so, his Honour identified that the principal concern of the first respondent, as expressed at the hearing in the Federal Magistrates Court, was the Tribunal's use of information relating to fraudulent documents in India in relation to the newspaper clippings he had provided. At [18], his Honour said: the second ground relating to procedural fairness and the third relating to a denial of natural justice, again without sufficient particulars, were centred upon his basic complaint that the Tribunal found that the newspaper clippings to be [sic] fraudulent in circumstances where the applicant alleged he had produced the originals and had invited the Tribunal to confirm such by searching the internet where these newspapers maintained sites. 28 The federal magistrate pointed out that the Tribunal had complied with s 424A(1) of the Migration Act in relation to a considerable amount of information, and that it was at liberty to hand down its decision despite a request for more time to respond. 29 At [21]-[29], the federal magistrate dealt with what he described as an issue raised in the hearing. His Honour referred to the power of the Tribunal to obtain such information as it considers relevant, pursuant to s 424 of the Migration Act. He also said that there was no general duty on the Tribunal to undertake its own inquiries. His Honour quoted from the judgment of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in SZIAI at [25]. The whole of the relevant passage is as follows: Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. The portion quoted by the federal magistrate began with the words "a failure to make an obvious inquiry" and finished with the words "manifests itself as jurisdictional error." His Honour also interpolated in the quote the text of a footnote, which I have omitted. At [23], his Honour said: It has been held that a failure to make inquiries in order to discover appropriate material if readily available, in limited instances, may constitute unreasonableness on the part of the Tribunal in a Wednesbury sense. His Honour cited Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 and Minister for Immigration and Citizenship v Le [2007] FCA 1318 (2007) 164 FCR 151 and continued: I am of the view that where the question of the applicant's credibility was determinant of the outcome and where that credibility was so reliant upon the documentary evidence presented by the applicant, and further, where it was readily open to the Tribunal to determine the authenticity of such documentary evidence, not to make relatively simple inquiries as suggested by the applicant, who had otherwise provided all the authentication reasonably available to him, is so unreasonable that no Tribunal could have not made the inquiry.

The rest of the federal magistrate's reasoning is set out at [24]-[29]: [24.] The applicant's principal contention as articulated at the hearing is that he should be believed as he had provided genuine documentary evidence supportive of his claims to the Tribunal, in my view, raises significant issues as to how the Tribunal approached the determination of the issue of the applicant's credibility. [25.] On the face of the Tribunal's decision, it appears the Tribunal, on finding inconsistencies in the stories told by the applicant, determined that the reliance the applicant placed on his documentary supportive evidence must be ignored because they must be false. This in my view, for the reasons set out below, is unreasonable in a Wednesbury sense. The Tribunal, in my view, should have asked itself, what if the newspaper clippings are true. Had the answer to that question been yes, then it was open to the Tribunal to find the other claims plausible. In my view, on the face of them, they are not so implausible to lead to a conclusion the newspaper clippings should be disregarded if proved to be authentic. Should the clippings prove to be authentic then there is the possibility that the focus on "inconsistencies" would ameliorate and a new understanding of the applicant's claim emerge. [26.] In support of the Tribunal's conclusion of "high prevalent [sic] of fraud in India" it relies on the annexures to the s.424A(1) letter. In themselves, they do not lead to such a conclusion, in my view. [27.] The applicant asked what more he could do to persuade the Tribunal of their authenticity than what he had done. He had provided original clippings supported, he would say, by translations certified by a notary and stamped as such. It is unclear from the Tribunal's decision whether the translations are said to be fraudulent, or the clippings are, or both; or whether they are authentic translations of forged documents. [28.] For such a pivotal issue, that is, the authenticity of the translations and the clippings, it is incumbent, in my view, on the Tribunal to take all reasonable steps to determine the issue. In this instance, the first respondent and the Tribunal have available to them the services of a documents authentication unit located in Queensland. A referral to this unit would not have been to ask too much of the Tribunal. In addition, the applicant suggested to the Tribunal that the newspapers involved have websites readily accessible and invited the Tribunal to go to them. Again, although it may have necessitated the services of an interpreter, these sites could have been readily accessed without too much effort on the part of the Tribunal. [29.] It seems to me the Tribunal formed a view about the credibility of the applicant and had then found it necessary to discredit the applicant's major supportive documentation. The approach taken, in my view, was a reverse of that which should have been taken in this instance, and because of such, the conclusions reached about the credibility of the applicant are not reliable, and unreasonable in a Wednesbury sense.

The grounds of appeal 30 The Minister's notice of appeal to this Court contained five grounds. The first ground challenged the finding of the federal magistrate that the Tribunal's conclusions about the credibility of the first respondent were unreasonable in a Wednesbury sense, on the basis that the Tribunal's findings about credibility were findings of fact, open on the material before the Tribunal, not capable of substitution by the Federal Magistrates Court, and not giving rise to jurisdictional error. The second ground challenged the finding that a failure to make inquiries was unreasonable in the Wednesbury sense, on the basis that it was for the first and second respondents to make their case before the Tribunal, it was wrong to say that the Tribunal had to take all reasonable steps to determine the authenticity of the documents, the Tribunal did not have a duty to inquire in the particular case, and the absence of inquiries did not give rise to jurisdictional error. The third ground challenged the federal magistrate's finding that information before the Tribunal did not support the Tribunal's finding that document fraud was prevalent in India, on the basis that it was open to the Tribunal to find that the information did support that finding, it was a matter for the Tribunal to determine what weight should be given to items of information, and the federal magistrate was not entitled to substitute his own view of the information for that of the Tribunal. The fourth ground challenged the finding of the federal magistrate that the first respondent had lodged original newspaper clippings with the Tribunal and had invited the Tribunal to confirm the authenticity of those documents by searching internet websites maintained by the newspapers from which the clippings had been obtained, on the ground that the evidence before the Federal Magistrates Court did not support such a finding. The fifth ground alleged that the federal magistrate had denied the Minister procedural fairness in making the findings described in the third and fourth grounds, on the basis that those findings were adverse to the Minister, not obviously open on the material before the Federal Magistrates Court and, if the Minister had been put on notice of the possibility of such findings, the Minister would have sought to put further material before the Court about that issue.

Factual errors 31 Counsel for the Minister contended that the federal magistrate was in error in making a factual finding, expressed in [23] and [28] of his reasons for judgment. In the latter, the finding was that the first respondent "suggested to the Tribunal that the newspapers involved have websites readily accessible and invited the Tribunal to go to them." His Honour added that the sites could have been accessed readily. At [23], his Honour referred to "relatively simple inquiries as suggested by the applicant". 32 In fact, there was nothing before the federal magistrate to indicate that the first respondent had made any reference to internet sites. The exchange in the course of the Tribunal's hearing, set out in [17] above, shows that the first respondent was suggesting that the Tribunal could inquire about the newspaper and find out what the truth was. There was no suggestion from him that a search of the internet, to find the newspaper sites, would have been an appropriate way to inquire. Although the Tribunal allowed the first respondent additional time to provide more material in writing, the first respondent did not avail himself of this opportunity. Further, the Tribunal raised again the issue of document fraud and its bearing upon the reliability of the newspaper articles in its letter dated 4 August 2008. Apart from requesting an extension of time, the first respondent did not provide any further information. The Tribunal had allowed him until 20 August 2008. In a letter dated 20 August 2008, refusing the request for an extension of time, the Tribunal informed the first respondent that it would take into account any information he provided prior to the handing down of the decision. The first respondent had another week from the date of this letter to provide any further information, but did not do so. 33 So far as the material before the Federal Magistrates Court shows, at no time did the first respondent provide to the Tribunal any material containing a URL for any website that the Tribunal could have visited, to determine the authenticity of the newspaper articles. It was not until 4 September 2009, after the Federal Magistrates Court had conducted its hearing, that the first respondent made available any such material. Only in the material filed in the Federal Magistrates Court on 4 September 2009 (detailed in [25] and [26] above) was there any reference to any URL. There were references to the URLs for the articles in The Sandesh and Gujarat Samachar. There was no provision of a URL for any of the Bhrastachar Abhiyan articles. Of course, by that stage, the first respondent was not entitled to be placing any further material before the federal magistrate. Any further material he did provide to the federal magistrate could not have been treated as if it had been available to the Tribunal. 34 It follows that the federal magistrate was in error in finding that the first respondent had suggested to the Tribunal that it make further inquiries about the validity of the newspaper articles by checking on the internet.

The making of inquiries 35 As appears from the passage from SZIAI, quoted in [29] above, the Tribunal is not under a general duty to make all inquiries. While it possesses inquisitorial powers, it has no obligation to seek the truth exhaustively. In this respect, it sits rather oddly in any legal system, being neither fully inquisitorial nor at all adversarial. In general, it can choose whether to inquire or whether to refrain from inquiring. It is therefore impermissible, as was said in SZIAI, to ask whether the circumstances were such as to give rise to a duty to inquire. 36 The ultimate question for the Court, when exercising its judicial review functions in relation to a decision of the Tribunal, is whether the Tribunal has discharged its statutory function. One aspect of this may be to ask whether the Tribunal could have discharged its function without making some inquiry for the purpose of ascertaining what the facts are. As the High Court made clear in SZIAI, the circumstances in which this will have to be done are very limited. 37 In my view, the Tribunal did not fail to discharge its statutory function of reviewing the decision to refuse the first and second respondents protection visas by failing to make inquiries that might have revealed information about the genuineness of the newspaper articles. By its letter dated 4 August 2008, the Tribunal had given to the first respondent clear notice that it might not accept the truth of the allegations contained in the newspaper articles. The first respondent had every opportunity to provide further information to the Tribunal to persuade it otherwise. If he had wished the Tribunal to go to the internet, he could have said so, and could have provided the sort of material that he did provide subsequently, too late, to the Federal Magistrates Court. In the normal course, people are entitled to expect that documents will be treated as genuine and acted upon. It is also true that, in the case of newspaper clippings, the ordinary person would be astonished by a suggestion that their authenticity might be questioned. For all that, however, the first respondent was told clearly that their reliability was in issue. If he failed to provide further information that would satisfy the Tribunal that the newspaper articles were authentic, his case was likely to suffer. 38 Having expressed to the first respondent its concerns, the Tribunal was not then obliged to do what the first respondent did not do, and seek further information about the authenticity of the newspaper articles. To the extent to which the federal magistrate held otherwise, his Honour was in error.

Unreasonableness 39 The original concept of unreasonableness that underlay Wednesbury related to the exercise by an administrative decision-maker of a discretion. If the circumstances of the case were such that no reasonable decision-maker, exercising the function that the particular decision-maker was exercising, could have exercised the discretion the way the particular decision-maker did, then the Court would set aside that exercise of discretion. The grant or refusal of a visa is not a matter of the exercise of discretion. By s 65 of the Migration Act, the Minister (and the Tribunal standing in the place of the Minister) must grant a visa if satisfied that the criteria for that visa have been met and must refuse to grant the visa if not so satisfied. Nevertheless, notions of Wednesbury unreasonableness have surfaced from time to time in judicial review of decisions relating to the grant or refusal of visas, on the basis that the Wednesbury principles can apply by way of conclusion that a failure to be satisfied was so unreasonable that no reasonable decision-maker exercising that function could have been other than satisfied. This is a difficult case to make out. It is particularly difficult when the question of satisfaction or otherwise depends upon findings of fact, with which the Court is not free to disagree. The application of principles of unreasonableness in decision-making cannot be used as a cloak for the assumption by the reviewing court of the fact-finding function of the administrative decision-maker. 40 It was not open to the federal magistrate to disagree with the Tribunal's conclusion that the materials it had before it demonstrated the high prevalence of document fraud in India. 41 The Tribunal's reasoning about the newspaper clippings is not altogether satisfactory. The Tribunal said that it did not accept that the two newspaper clippings with which it dealt specifically were evidence of the events alleged in them. In each case, this conclusion was said to be based on two factual elements. One was the Tribunal's concerns in relation to the plausibility of the first respondent's testimony. The other was the evidence of document fraud in India. It is not clear whether the Tribunal thought that the newspaper clippings themselves had been manufactured, or the translations of them were inaccurate. The criticism might be levelled at the Tribunal, and the federal magistrate certainly appears to have believed, that the Tribunal decided to reject the first respondent's evidence first and then determine that the newspaper clippings were false, because otherwise they would have stood in the way of the Tribunal's refusal to accept the first respondent's evidence. As the federal magistrate said at [25], a different conclusion might have been reached had the Tribunal addressed the question of the truth of the newspaper clippings first and then, if it found them to be true, regarded them as supportive of the first respondent's credibility. 42 The question for the Federal Magistrates Court was not whether the Tribunal might have adopted another method of reasoning. Nor was it whether another method of reasoning might have been preferable to that adopted by the Tribunal. The question was whether the method of reasoning was so unreasonable that (on the facts as the Tribunal found them) the conclusion reached could not have been reached by a reasonable decision-maker. In the present case, it is not possible to say that a reasonable decision-maker could not have reached the same conclusion that the Tribunal did. 43 It is perhaps unfortunate that the Tribunal missed the obvious point on which it should have been pressing the first respondent in relation to the newspaper articles. The crucial articles on which the Tribunal declined to act, those of 31 July 2006 and 24 April 2007, were both taken from Bhrastachar Abhiyan. Each had the by-line "By Press Reporter". Each mentioned the first respondent by name. If accepted, each corroborated his case (although the Tribunal pointed out correctly the discrepancy between the date of the 2006 article and the time at which the first respondent said he had sold his business). The material before the Tribunal showed that the first respondent was a "Press Reporter" for Bhrastachar Abhiyan. The obvious question was whether the first respondent had written these articles himself, or had procured a colleague to write them. The Tribunal did not pursue these questions. 44 The question whether the newspaper articles were reliable was a question of fact for the Tribunal. It was not one that the Federal Magistrates Court could usurp to itself. The fact that the reasoning about the question could have been better and that, if it had been, the Tribunal might have reached the opposite conclusion, does not lead to the result that the decision was so unreasonable that no reasonable Tribunal member could arrive at it.

Conclusion 45 For these reasons, the federal magistrate was wrong to set aside the Tribunal's decision. The appeal must be allowed. The orders of the federal magistrate must be set aside. For those orders, there must be substituted orders dismissing the application of the first and second respondents to the Federal Magistrates Court. In any proceeding in a court, the discretion as to the awarding of costs is normally exercised according to the principle that costs follow the event. This means that the unsuccessful party pays the costs of the successful party to the proceeding. No circumstance was advanced, and none appears to exist, that would oust the application of this principle in the present case. For this reason, the first and second respondents should be ordered to pay the Minister's costs of the proceeding in the Federal Magistrates Court. The first and second respondents should also be ordered to pay the Minister's costs of the appeal. In the assessment of those costs, however, the costs associated with the withdrawn application at a late stage for the appeal to be heard by a Full Court (see [4]-[5] above) should be excluded. There is no reason why the first and second respondents should have visited upon them the costs of that application, which ought to have been made much earlier than it was and which was ill-prepared when it was made. In addition, if the Minister's costs are to be assessed by a registrar, the registrar ought to consider carefully whether the cost of briefing both senior and junior counsel in this appeal was warranted. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

The nature and history of the proceeding 1 This appeal raises the question whether jurisdictional error on the part of the Refugee Review Tribunal ("the Tribunal") occurred because the Tribunal did not take steps to check whether certain newspaper articles were genuine, before refusing to accept that they were evidence of events alleged in them. The appeal is from a judgment of the Federal Magistrates Court of Australia, published as MZYCF & Anor v Minister for Immigration and Citizenship & Anor [2010] FMCA 11, delivered on 27 January 2010. The learned federal magistrate set aside the decision of the Tribunal, dated 27 August 2008, remitted the matter to the Tribunal for determination according to law, and ordered the appellant, the Minister for Immigration and Citizenship ("the Minister"), who was the first respondent in the Federal Magistrates Court, to pay the costs of the first and second respondents to this appeal, who were the applicants in that court. The Tribunal's decision was to affirm a decision of a delegate of the Minister to refuse to grant to the first and second respondents protection visas. The Tribunal is the third respondent to the appeal. 2 The first and second respondents are citizens of India. They are a married couple. They arrived in Australia on 8 February 2008. On 12 March 2008, they applied for protection visas. The Minister's decision refusing to grant those visas was made on 24 April 2008. The first and second respondents then applied to the Tribunal for review of that decision. The Tribunal conducted a hearing on 1 August 2008, at which the first and second respondents appeared and gave evidence and presented arguments with the assistance of an interpreter. After the hearing, the Tribunal wrote to the first respondent, inviting him to respond to a number of propositions. The first respondent requested more time than the Tribunal had allowed, but the Tribunal rejected this request. 3 The application by the first and second respondents to the Federal Magistrates Court was dismissed on 20 March 2009, because they did not appear on the first occasion on which the application was called on in court. The dismissal order was set aside on 20 March 2009, when orders were made for the preparation of the application for hearing. The hearing was fixed for 24 July 2009. At the end of the hearing, the Minister was directed to file and serve further contentions of fact and law and the first and second respondents were given the opportunity to reply. 4 The appeal to this Court was listed in the ordinary course to be heard by a single judge on 27 May 2010. By letter dated 12 May 2010, the Minister's solicitors requested that the appeal be heard by a Full Court. The letter said that the consideration of the appeal could involve a consideration of what was said in Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 (2009) 259 ALR 429 at [25], per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. The letter suggested that single judges of this Court who have considered that passage "have varied in its consideration." Reference was made to Brown v Minister for Immigration & Citizenship [2009] FCA 1098, SZLGP v Minister for Immigration & Citizenship [2009] FCA 1470 and Khant v Minister for Immigration & Citizenship [2009] FCA 1247 as examples. A copy of the letter from the Minister's solicitors was sent to the first and second respondents both by email and post. The postal addresses (one a post office box number and the other a street address) were in Mildura. In response to that letter, my associate advised the Minister's solicitors that I was disinclined to decide whether the appeal should be heard by a Full Court without first giving the first and second respondents an opportunity to be heard on that question. The letter invited the Minister to renew the application for the appeal to be heard by a Full Court when it was called on for hearing on 27 May 2010. 5 Counsel for the Minister did so renew the application. They conceded that, if arguments they proposed to put on the Minister's behalf about errors on the part of the federal magistrate were to be accepted, the appeal could be determined without deciding what was meant by the passage from SZIAI. When I invited counsel for the Minister to take me to the variations claimed to have been expressed by single judges about the meaning of that passage, counsel were unprepared to make such a submission, and did not have copies of the judgments in Brown, SZLGP, and Khant with them. When I pointed out that, if the case were to be treated as a test case on the meaning of the passage in SZIAI, the first and second respondents would need to be represented, so that there would be a proper contradictor, and asked whether the Minister was prepared to fund the reasonable cost of their representation, counsel said that they did not have instructions on that question. Similarly, they were uninstructed on the question whether the Minister would be prepared not to seek costs, in the event that he succeeded on the appeal, on the basis that he had wished to make a test case out of the appeal, and the request resulted in the abandonment of the hearing date fixed and the fixing of another one. Counsel sought an adjournment for a short time, in order to procure copies of the judgments in Brown, SZLGP and Khant, and to seek instructions about the two issues of costs. I granted the adjournment. On the resumption of the hearing of the appeal, counsel for the Minister abandoned their application for the appeal to be heard by a Full Court. 6 The hearing of the appeal therefore proceeded on 27 May 2010. Only the first respondent appeared to contest the appeal. I elected to proceed with the hearing in the absence of the second respondent (whose entitlement to a protection visa depended upon the outcome of the first respondent's application) and in the absence of the Tribunal (which had filed a submitting appearance in the Federal Magistrates Court, but did not file a notice of appearance in this Court.)

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