appeal to the federal court
22 On 30 November 2009 the appellant filed a notice of appeal in this Court, appealing from the whole of the judgment of the Federal Magistrates Court. The appellant is self represented. The ground of the appeal specified in the notice of appeal is:
1. The FM failed to find that the tribunal's decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore fall (sic) under jurisdictional error.
(a) There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1).
23 On 8 December 2009, directions were made for the filing of written submissions. The appellant did not file any written submissions. Written submissions were filed by the Minister. On the hearing of the matter the appellant was assisted by an interpreter. He was given an opportunity to consider and respond to the Minister's submissions. A short adjournment was provided to the appellant for that purpose. On resumption, the appellant had no response to make. Despite the opportunity to do so, the appellant did not make any oral submissions of any substance. He did however tell the Court that he sought orders setting aside the decision of the Federal Magistrate and that the matter be remitted for reconsideration by the Tribunal.
24 The Minister relied upon its written submission. In that submission the Minister accepted that the adverse information that the Tribunal received from Father Thomas and Father Peter was relevant information which attracted the operation of s 424A. The Minister, however, submitted that the Tribunal was not obliged to comply with s 424A as it had complied with s 424AA of the Migration Act. The Minister contended that the Tribunal engaged the provisions of s 424AA and complied with its requirements. In that respect, the Minister says the Tribunal informed the appellant that the evidence of Father Peter and Father Thomas was information that was relevant, as it undermined his claims. The Tribunal invited the appellant to comment and the appellant elected to respond immediately. Having complied with the requirements of s 424AA, the Minister contends that it was not necessary for the Tribunal to comply with the requirements of s 424A.
25 The Minister made no application for the exercise of the Court's discretion to decline the relief sought, in the event that the Court found appellable error: compare SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [27]-[29] and [87]-[90].
REASONING
26 The Federal Magistrates Court has no jurisdiction to judicially review a decision of the Tribunal if the decision of the Tribunal in question is a privative clause decision. That constraint arises by operation of s 474 and s 476 of the Migration Act.
27 However, where a decision of the Tribunal is infected with jurisdictional error, the decision of the Tribunal is not a decision made "under the Act" and not within the exclusionary scope of the protection of the privative clause provisions of the Migration Act: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
28 The Federal Magistrate concluded that he had no jurisdiction to interfere with the Tribunal's decision because that decision was not infected with jurisdictional error. For the appellant to succeed on this appeal, I need to be satisfied that the Federal Magistrate erred in arriving at that conclusion.
29 The appellant's ground of appeal is that the Federal Magistrate failed to identify that the Tribunal had breached s 424A and that, consequently, its decision was infected with jurisdictional error. The Federal Magistrate rejected that challenge on the basis that compliance with s 424A was not necessary if there was compliance with s 424AA. The Federal Magistrate was satisfied that there was compliance with s 424AA.
30 Sections 424AA and 424A work in a complementary manner. If the Tribunal engages the provisions of s 424AA and complies with that section, it need not meet the requirements of s 424A(1). That is the effect of s 424A(2A) as explained by Moore, Tracey and Foster JJ in SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 at [88] and [104].
31 A failure to comply with the requirements of s 424AA does not constitute jurisdictional error: SZMCD at [74]-[75] and [93]-[101]. However, non-compliance by the Tribunal with the requirements of s 424AA will cast the Tribunal back to s 424A. In that event, the Tribunal must then comply with the provisions of s 424A(1): SZMCD at [92] and [103]. A failure to comply with the requirements of s 424A(1) does constitute jurisdictional error: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [78], [173] and [208]; SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [13].
32 In this case, the Tribunal sought to invoke s 424A(2A) and comply with the requirements of s 424AA. If it failed to comply with those requirements, in order to avoid jurisdictional error it was required to comply with the requirements of s 424A(1). The Tribunaltook no steps to comply with s 424A(1). Therefore, if the Tribunal did not comply with the requirements of s 424AA, its decision will be infected with jurisdictional error by reason of its non-compliance with s 424A(1).
33 For the Tribunal properly to invoke the facility provided by s 424A(2) and proceed orally under s 424AA rather than in writing under s 424A, it must provide to the visa applicant "clear particulars" of any information that the Tribunal considers would be the reason, or part of the reason, for affirming a decision that is under review. Additionally the Tribunal must ensure that, as far as is reasonably practicable, the visa applicant understands why the information is relevant to the review and the consequences of the information being relied upon for the decision under review: s 424AA(a) and (b)(i): and see Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138 per Branson, Finn and Bennett JJ at [31]. Thereafter, the visa applicant must be given a "meaningful opportunity" to comment and respond to the information, including by seeking additional time and, if the Tribunal considers it reasonably necessary, through an adjournment of the hearing: s 424AA(b)(ii)-(iv) and SZNKO v Minister for Immigration and Citizenship [2010] FCA 297 per Flick J at [23] and [27].
34 As the Full Court said in SZMCD at [71]-[72], the same policy and purpose underpins s 424AA as that which underpins s 424A. Relevantly, the policy and purpose is that the Tribunal should be compelled to:
(a) put the visa applicant on fair notice of critical matters of concern to the Tribunal;
(b) ensure that the visa applicant understands the significance of those matters to the decision under review; and
(c) give the applicant a reasonable opportunity to comment on or to respond to those matters of concern.
35 The requirements of the Tribunal under paragraph (a) and (b)(i) of s 424AA are not relevantly distinguishable from the requirements in s 424A(1)(a) and (b) (other than for the fact that the former deals with oral communication and the latter with written communication). Many of the authorities which I refer to deal with the Tribunal's obligations under s 424A. Given the common textual and purposive characteristics of s 424A and 424AA, those authorities are helpful to an analysis of the requirements of s 424AA.
36 Unlike many cases in this area, this is not a case where there is any issue as to whether s 424AA was enlivened. Given the largely subjective nature of the pre-condition for the provision becoming operative (found in the phrase "that the Tribunal considers"), it is obviously important to look at what the Tribunal said. The Tribunal told the appellant that he was being given a "warning" pursuant to s 424AA. Whilst that characterisation was inept, in this case the Tribunal was clearly of the view that there was information before it of the kind which had enlivened the operation of s 424AA. The Minister concedes that s 424AA was enlivened.
37 The real issue is whether the Tribunal met the obligations required of it by s 424AA. Relevantly, the issue for determination is whether the Tribunal complied with the obligation to give clear particulars and to ensure that the visa applicant understood the relevance and consequence of the information that the Tribunal had determined would be the reason or part of reason for affirming the decision under review.
38 The nature and content of the obligations upon the Tribunal under s 424A(1) were recently summarised by Flick J in SZMTJ v Minister for Immigration and Citizenship and Anor (No 2) [2009] FCA 486. I respectfully agree with his Honour's observations at [52] that each of the requirements of s 424A are not to be treated as though they were divorced one from the next. The greater degree of clarity in the particulars of any information provided, the less may be the exposition needed to convey the relevance of that information to the review being undertaken; the greater the uncertainty in the information being provided, the greater may be the need to explain why it may be relevant. The same observations are applicable to s 424AA.
39 In relation to s 424A(1)(a), Flick J at [45] emphasised that a visa applicant is to be provided with "sufficient specificity" of the information to be relied upon. Language which fails to identify information with "sufficient specificity" and which fails to set out information "unambiguously" may fail to comply with s 424A(1)(a): see for example MZXKH v Minister for Immigration and Citizenship [2007] FCA 663 at [20] per Tracey J.
40 In SZNKO v Minister for Immigration and Citizenship [2010] FCA 297, Flick J traced the legislative history of the requirement for particulars in s 424A. His Honour noted that prior versions of s 424A had referred merely to "particulars of any information". The requirement that "clear particulars" be provided was introduced by the Migration Amendment (Review Provisions) Act 2007 (Cth). As his Honour noted, that change in language cannot be ignored. The change came at the same time that s 424AA was introduced and thus the facility provided to the Tribunal to communicate orally its intended reliance upon "information", rather than in writing under s 424A. Although the language of s 424A(1)(a) was also brought into line with that of paragraph (a) of s 424AA, it may be inferred that the change from "particulars" to "clear particulars" was somewhat motivated by the concern that extra care be taken in the giving of particulars, especially as particulars could now be given orally. That concern recognises that the opportunity to reflect and digest particulars given orally is more limited than when particulars are given in writing.
41 As Flick J further noted at [44] of SZMTJ, s 424A(1)(b) imposes what has been said to be "strict requirements". His Honour referred to the decision of Rares J in SZEOP v Minister for Immigration and Citizenship [2007] FCA 807, where Rares J said that s 424A(1)(b) required the Tribunal to ensure, as far as reasonably practical, that it identified to the visa applicant why the information was relevant to the review. Such an identification is necessary to avoid the visa applicant being left to choose between uncertain inferences that might otherwise be available. The visa applicant needs to be told by the Tribunal why the information is relevant to the review. That obligation is not fulfilled if the Tribunal leaves it to chance that the visa applicant appreciates the relevance of the information from the course of the hearing, or from other circumstances surrounding the way in which the review was being conducted: SZEOP at [36].
42 It is necessary, in order to determine whether the Tribunal complied with its s 424AA obligations, to return to the Tribunal's decision and analyse the evidence given by the Fathers and see how it was dealt with by the Tribunal.
43 The Tribunal's telephone conferences with each of the Fathers appear to have been relatively short. The Tribunal asked each of Father Thomas and Father Peter for confirmation of what the Tribunal said were the following claims made by the applicant:
· That the applicant was a member of the Church;
· That "he was attacked by Hindus" (no specific event or events were referred to); and
· That his wife Meena and their children were being looked after by the Church (what "looked after" meant was not specified).
44 Father Thomas' response to the Tribunal's characterisation of the appellant's claims, was that it was "all lies". He went further. He said that "nobody had been attacked by Hindus and that nobody was being looked after by the Church". Father Thomas then said that it would be better if the Tribunal spoke to Father Peter who had organised the trip to Australia.
45 The Tribunal did not ask Father Thomas to give the basis for his knowledge. It did not follow up with the obvious question as to how Father Thomas even knew the appellant when it appears that he refuted the appellant's claim to have been a member of his Church. Father Thomas' referral of the Tribunal to Father Peter "who had organised the trip to Australia", suggests that Father Thomas' comments were made in the context of some prior knowledge by him of claims for refugee status being made by persons who had visited Australia on a trip organised by his Church.
46 When the three claims were put to Father Peter, he replied "that the claims are absolutely wrong". He gave no further detail. The Tribunal had not identified when and how the attacks by Hindus had been claimed to have occurred and Father Peter, like Father Thomas before him, asked for no specification.
47 His evidence immediately moved to the World Youth Day trip and was to the effect that the appellant had travelled to Australia for World Youth Day and that all participants had been told to come back and had undertaken to do so in affidavits. Father Peter said that it was a case of fraud, and that the appellant was attempting to bluff the Tribunal and had applied for a visa because of pressure from advocates who were motivated by money.
48 These were serious allegations. It is not clear how Father Peter knew of them. He was not asked by the Tribunal to explain the basis of his knowledge or expand on his understanding, including as to the attack or attacks which he was refuting. Clearly Father Peter was labouring under the mistaken view that the appellant had not returned to India after his trip with the Church for World Youth Day. Despite that fact being known to the Tribunal, the Tribunal made no attempt to disabuse Father Peter of it or otherwise clarify the position.
49 There was a fair inference to be drawn that Father Peter's views (and perhaps those of Father Thomas), including his denial of what the Tribunal said were the appellant's claims, may well have been tainted by his mistaken view that, despite undertakings given to the Church by the appellant, the appellant had failed to return to India after World Youth Day. The Tribunal made no attempt to explore that obvious possibility.
50 The Tribunal made no attempt to explore the basis upon which Father Peter knew that the appellant's wife and children were not "being looked after by the Church". The appellant's prior evidence that initially the appellant's wife and children were living in the Church but were now staying "in another rented property", was not put to Father Peter nor to Father Thomas.
51 Despite the presence of the appellant during the telephone conferences, he was not given any opportunity to ask any questions of the Fathers.
52 The appellant was, however, immediately invited to respond to the evidence of Father Peter. His response was to the effect that Father Peter had said what he had said because he was annoyed with those who had breached their oath and had failed to return to India. The appellant tried to emphasise that his position was different to those that Father Peter had spoken of. He had returned to India.
53 At that point, the Tribunal says in its decision that it gave the applicant "a warning, pursuant to s 424AA of the Act". In that context, the Tribunal referred to the evidence of Father Peter and Father Thomas and noted that their evidence suggested that the applicant had not, in fact, been attacked by Hindus and that his wife and children were not being looked after by the Church. The Tribunal "indicated this was relevant because it undermined the applicant's protection claims, and could therefore form the reason, or part of the reason, for affirming the decision under review". The appellant was invited to comment on or respond to the information and was also given the opportunity to request an adjournment, if he wished, prior to responding.
54 The appellant elected to respond immediately. In his response, the appellant again asserted that Father Peter's evidence was tainted by the conduct of others who had refused to return to India after World Youth Day. He said that Father Peter didn't know anything about what had happened to him. More detail of the response is set out at paragraphs [63]-[70] of the Tribunal's decision.
55 In its decision, the Tribunal accepted that the applicant and his family were Christians as claimed. The Tribunal, however, found that the appellant's claim to have been a victim of anti-Christian violence in the past, and his evidence generally, was unconvincing for three reasons. One of those reasons, and arguably the most potent of the reasons relied upon, was the evidence given by Father Thomas and Father Peter. In that regard, the Tribunal said at [78]:
· key aspects of the applicant's claims, namely that he has been the victim of attacks by the Hindu extremists and that, as a consequence, the church he belongs to had provided accommodation for his wife and children, were refuted by church officials from whom the Tribunal took evidence during the hearing.
56 As the Tribunal said at [79], for reasons including the reason set out in the extract above, the Tribunal did not find the appellant's claims and evidence to be credible. The Tribunal did not accept that the appellant had been attacked and threatened, nor that he had been beaten unconscious and his shop ransacked after having been warned to change his religion or leave the country. The Tribunal did not accept that the appellant had been persecuted in the manner claimed, including by threats requiring the appellant to change his children's names to Hindu names or leave the country. Further, the Tribunal did not accept that the appellant's family had sought sanctuary from the church and that his family and mother are currently living in church property.
57 In my view, the Tribunal did not provide to the appellant clear particulars of the information it considered would be a reason or part of the reason for affirming the decision under review. There was not sufficient specificity and further, as Tracey J said in MZXKH at [20], the wording employed by the Tribunal lacked the necessary clarity.
58 In giving its s 424AA "warning", the Tribunal referred to the evidence of Father Peter and Father Thomas and said that that evidence suggested that the appellant had not in fact been attacked by Hindus and that his wife and children were not being looked after by the Church. Was the Tribunal here saying that the entirety of the evidence given by the Fathers was the basis for these suggestions? Conversely, was the Tribunal trying to say that only the evidence of the Fathers that dealt directly with the claims put to them was relevant?
59 If, in the words of the Full Court in SZMCD at [71], the Tribunal was required to put the appellant "on fair notice of critical matters of concern to the Tribunal", the Tribunal was here required to identify whether its concern related to the whole of the evidence of the Fathers, or simply that part of it which directly refuted what was said by the Tribunal to be the appellant's claims. Given that the entirety of the evidence of the Fathers was adverse to the appellant and given that the Tribunal's acceptance of the appellant's evidence was obviously going to depend, to some extent, on whether the Tribunal believed the appellant, all of the evidence given by the Fathers was potentially relevant to the claim about attacks by Hindus, and also to the claim that the appellant's family was being looked after by the Church. The Tribunal failed to identify clearly the information that it was concerned about. The appellant was not in a position to know whether his response should deal with the entirety of the evidence of the Fathers (including allegations of fraud and that the appellant was bluffing the Tribunal and pressured to do so by people motivated by money), or simply Father Thomas' response that "that was all lies" and Father Peter's response that "the claims are absolutely wrong".
60 Further, the Tribunal failed to ensure that the appellant understood why the information (whether in its entirety or more limited form) was relevant to the review. For the Tribunal to say that "this was relevant because it undermined the applicant's protection claims" is to do no more than indicate that the information was adverse to the appellant's claim for a protection visa. What was required was an explanation as to "why the information is relevant to the review". To simply say that the information undermines an applicants case is far too general, and does not satisfy the requirement of s 424AA(b)(i) to ensure that the visa applicant "understands why the information is relevant to the review".
61 It is not clear whether the Tribunal meant to indicate that the information was relevant to the specific claims refuted by the Fathers, or to each and every claim made by the appellant, or something in between. Ultimately, the Tribunal used the information to reject all of the claims made by the appellant identified earlier in paragraph [56]. It did that because it found that the appellant was not a credible witness. Yet, the Tribunal did not say that the information suggesting that the appellant was not attacked and that his family were not being looked after by the Church, was relevant to whether or not the Tribunal would accept other claims made by the appellant.
62 Furthermore, paragraph (b) of s 424AA speaks of both the relevance and the consequences of the information. Rather than ensuring that the appellant had an understanding of the consequences of the information being relied upon by the Tribunal, the appellant was here misled as to what that consequence would be. Given that the Tribunal had come to the view that s 424AA was enlivened and thus that it had information before it which it considered "would" be the reason or part of the reason for affirming the decision that was under review, it was misleading of the Tribunal to tell the appellant that the information "could" form the reason or part of that reason.
63 In Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 French CJ, Heydon, Crennan, Kiefel and Bell JJ said at [25]:
As observed equally correctly by Heerey J in MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 488 at [29], s 424A speaks of information which "would", not which "could" or "might", be the reason or part of the reason for affirming the decision under review.
64 In MZXBQ, Heerey J noted the conditional characteristic of s 424A(1)(a). I agree that a conditional characteristic is found in that paragraph, as it is in s 424AA. With respect to Heerey J, I would express the condition slightly differently. The Tribunal's satisfaction that the information would be the reason is conditional upon the Tribunal being persuaded to the contrary by the opportunity provided to a visa applicant to comment or respond to the information. As Heerey J said at [28], that is the point of giving the applicant the opportunity to rebut, qualify or explain the information.
65 In that context, in order to meet its obligation to ensure that the visa applicant understands the consequence of the information, it is incumbent on the Tribunal to tell the visa applicant that the information which it has particularised would be the reason, or part of the reason, for affirming the decision under review, unless it is persuaded not to do so by any response that the applicant can make to the information. The visa applicant should be invited to comment on or respond to the information, including by seeking additional time, for that purpose. Thus, having clearly particularised the information in question, the Tribunal might invite the visa applicant to "comment on information that the Tribunal considers would, subject to any comments you make, be the reason, or part of the reason, for affirming the decision under review". That formulation appears to have been utilised by the Tribunal in other cases: see for example Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [6] and MZXKH at [20]. It was not utilised here.
66 By telling the applicant that the information "could" form the reason or part of the reason, the Tribunal failed to ensure that the applicant understood the view that the Tribunal had arrived at, and the full gravity of the consequence of that view upon his claim. In the absence of a proper understanding, the appellant was not put in a position to understand how critical it was for him to respond and to do so convincingly.
67 In the circumstances of this case, the appellant may well have taken the view that the Tribunal would regard the evidence of Father Thomas to be of little consequence. As I have said already, it is unclear from the evidence that Father Thomas gave that he even knew of the appellant. Similarly, in relation to evidence of Father Peter, the appellant may well have thought that the Tribunal would not give that evidence very much weight. The evidence was unspecific, the basis for the assertions made was not given and the evidence was obviously tainted by Father Peter's misconception that the appellant was one of the oath breakers who had not returned to India.
68 In those circumstances, and because he was told that the evidence of the Fathers could, rather than would, be the reason or part of the reason for affirming the decision under review, the appellant may well have elected to respond immediately rather than take the benefit of the opportunity provided by s 424AA to seek additional time to provide his response. A full understanding of the gravity of what he was facing may well have impacted upon both the timing and the content of any response that the appellant chose to make.
69 For that reason as well, the Tribunal's approach failed to ensure that the appellant was put into a position where he could understand both the relevance and consequence of the information. That failure denied the appellant the proper opportunity to comment on or respond to the information, which s 424AA intends that he should have.
CONCLUSION
70 The Federal Magistrate erred in failing to identify that jurisdictional error existed. The Federal Magistrate should have held that because the Tribunal failed to comply with s 424AA, it was required to comply with s 424A(1) and did not. The Federal Magistrate should have held that the decision of the Tribunal was not a privative clause decision and should have issued the writs of certiorari and mandamus which the appellant sought.
71 These conclusions lead to the result that the appeal must be allowed. The orders made by the Federal Magistrate should be set aside and be substituted by orders that provide remedies by way of certiorari and mandamus directed to the Tribunal. Those remedies will have the effect of quashing the decision of the Tribunal and requiring the Tribunal to hear and determine, according to law, the appellant's application for review of the decision to refuse his application for a protection visa.
72 In accordance with the usual principle, costs should follow the event. Orders will be made for the first respondent to pay the appellant's costs before the Federal Magistrates Court and of the appeal.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.