SZJZS v Minister for Immigration & Citizenship

SECTION 424A 7 The first Ground of Appeal asserts jurisdictional error by reason of a failure to comply with s 424A of the Migration Act 1958 (Cth). 8 Section 424A provides as follows: Information and invitation given in writing by Tribunal (1) Subject to subsections (2A) and (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and (c) invite the applicant to comment on or respond to it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person. (2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application for review ; or (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or (c) that is non disclosable information. 9 The first Ground of Appeal as set forth in the Notice of Appeal is difficult to understand. Paragraphs [16], [21] and [23] of the Federal Magistrates Court's reasons (as referred to in the first Ground of Appeal) provide as follows: [16] I agree with the written submissions provided by Ms Wong that the items identified in the amended application and supported by his written submissions do not identify any jurisdictional error in respect of s 424A. … [21] This put the applicant on notice that the genuineness of the documents was in issue. He was given the opportunity to respond to this issue during the hearing or in written submissions after the hearing. The applicant failed to do so. … [23] In respect of the fourth issue, the Tribunal is under no obligation to provide the applicant with more specific reasons why a document may carry little weight, when it has already alerted him to its concerns. This is particularly significant when the applicant is unable to provide originals but relies on copies. Ms Wong submits that in the absence of a transcript of the Tribunal hearing, it is not possible to demonstrate that the Tribunal failed to alert the applicant of its concerns regarding the absence of original documents. I agree and accept the submission that the Tribunal reached its conclusion in conformity with its obligations under Division 4 of Part 7 of the Migration Act and that particulars (i)-(vii) of ground one do not identify any jurisdictional error. 10 The first Ground of Appeal is made even more difficult to understand when reference is made to the written submissions as filed by the Appellant. Those written submissions, it is considered, are best characterised as raising three contentions, namely: (i) a failure to "accept" particular evidence or claims being advanced, or a failure to make any "observation" in respect of a particular document; (ii) a failure to make investigations about particular matters; and (iii) a failure to provide reasons. Left to one side is any question as to how such contentions fall within either s 424A or the first Ground of Appeal as presently drafted. There is some correlation between the first Ground of Appeal and the written submissions such that the arguments sought to be advanced by the Appellant may at least in part be discerned. Counsel for the Respondent Minister quite properly did not oppose any of the issues raised by the written submissions, or by the submissions made orally, being entertained by this Court. 11 But none of those arguments, it is considered, have any substance. 12 As was correctly concluded by the Federal Magistrates Court, there is no obligation upon an administrative tribunal, and no obligation imposed upon the Refugee Review Tribunal, to refer to each piece of evidence placed before it for consideration and no obligation to either explain why it accepts or rejects particular evidence. An administrative tribunal is thus not normally required to state what evidence is accepted, rejected or taken into account with respect to findings of fact: cf Guy v Repatriation Commission [2002] FCA 525, 74 ALD 617. An administrative tribunal is not required "to give a subset of reasons [as to] why it accepted or rejected individual pieces of evidence": cf Chief Executive Officer of Customs v ICB Medical Distributors Pty Ltd [2007] FCA 1538 at [44], 97 ALD 746 at 755. 13 Nor is there any obligation imposed upon the Tribunal to inform an applicant as to whether it proposes to accept or reject individual claims or pieces of evidence and, in effect, inform an applicant as to its"mental processes before [it] reaches a final decision": SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [48], 228 CLR 152 at 166. 14 The first of the three contentions is thus rejected. 15 Insofar as the second contention is concerned, it may be accepted that the Tribunal carries out an "inquisitorial process": SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [53], 164 FCR 14 at 27-8. Allsop J there observed: [53] … the obligation of the Tribunal to give a real and meaningful invitation to comment carried with it the obligation to take reasonably open and regular administrative procedural steps to permit or facilitate fulfilment of the real and meaningful nature of the invitation, where not to take such steps would undermine or subvert the meaningfulness or the reality of the invitation. That obligation involves such mundane things as opening letters, reading them once opened and taking at least basic simple steps that would be taken in any well-run commercial, professional or governmental office, conformable with the recognition of the importance of the response to the invitation to the rights of the applicant and the review process contained within Pt 7 of the Migration Act. This does not rest on some posited duty of inquiry. It is not engaging in steps that require for their enforcement some express statutory power. … … [57] These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process… [58] This inquisitorial function has become relevant in a number of contexts. In Applicant S 217 CLR 387 at [76] McHugh J said: If the Tribunal had considered the issue that it was legally required to consider, it was open to the Tribunal to investigate whether such a perception existed, whether within the Afghan society or some section of it, or objectively. Indeed, arguably in the context of its inquisitorial process, the Tribunal had a duty to seek evidence concerning this vital matter. See also: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60 at [58], 201 ALR 437 at 450-1; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [73], 207 ALR 12 at 30-3. 16 A general answer may be provided to the alleged "duty to investigate": even though the Tribunal performs an "inquisitorial function", the primary responsibility nevertheless remains upon an applicant appearing before it to present such evidence and to advance such submissions as are considered relevant to his claims. It is no part of the task of the Tribunal to make out an applicant's case for him: cf Kioa v West (1985)159 CLR 550. Mason J there observed at 587: … The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. ... And in Abebe v Commonwealth (1999) 197 CLR 510 at 576, Gummow and Hayne JJ concluded that the Refugee Review Tribunal was not in the position of a contradictor. Their Honours held that it was: … for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out. See also: Brehoi v Attorney-General of the Commonwealth [2000] FCA 1747 at [35] per Hely J. The legislative requirement is that an invitation must be extended to an applicant "to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review": Migration Act, s 425(1). This right is "clearly an important and central right" in the review system established by Part 7 of the Migration Act: Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 at [44], 113 FCR 541 at 552; Amankwah v Minister for Immigration and Multicultural Affairs [1999] FCA 1162 at [13], 91 FCR 248 at 251. And the obligation imposed upon the Tribunal is an obligation to give a "real and meaningful invitation to comment": SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592 at [53], 164 FCR 14 at 27-8 per Allsop J. 17 Such an opportunity was indeed extended to the now Appellant in the current proceedings. The "RRT Hearing Record" discloses that the hearing extended to him took about two hours. Of perhaps even greater importance than the mere allocation of time is the fact that the reasons for decision of the Tribunal record in considerable detail the questions asked of the now Appellant. There is no basis for concluding that he was not given the opportunity envisaged by s 425(1) of the 1958 Act and a meaningful opportunity to make out his claims. 18 Notwithstanding the invitation extended to him, and the fact that the now Appellant attended the hearing before the Tribunal, the written submissions filed by the Appellant nevertheless asserted a duty to make an "investigation regarding student membership" and a duty to investigate a "speech" delivered by him. There are at least two further answers to these more specific contentions, namely: (i) although the Tribunal performs an "inquisitorial function", that function does not impose any such duty to make investigations of the kind envisaged by the Appellant; and, in any event: (ii) the Tribunal did undertake adequate inquiries to make the findings it did. 19 There is no unqualified duty imposed upon the Tribunal to make all such inquiries or to undertake all such investigations as a party may wish to be undertaken: cf Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [42]-[43], 207 ALR 12 at 21-2 per Gummow and Hayne JJ. See also: SZEEU v Minister for Immigration & Citizenship [2008] FCA 269 at [44]. 20 Nor can criticism be directed at the Tribunal for in fact failing to pursue the claims of the now Appellant and to make such inquiries as it considered appropriate. Thus, and by way of example, the Appellant's contention that the Tribunal failed to undertake an investigation of his membership of the "People's Student Federation" may be rejected on the facts. The Tribunal did consider his claims in this regard and had an adequate basis upon which it could reach the conclusions that it did. Such inquiries or investigations as were necessary in order for this claim to be resolved were undertaken. In this regard the Tribunal's reasons state in part as follows: The applicant provided translations of documents (4) setting out membership details of the PPP for himself and his brother; 2 letters from the President of the Swat District PPPP, a copy of a membership card of the PSF (People's Student Federation) and a letter from Tanzeen Nawjawanan. These documents were all provided to support the applicant's claim that he was a member and office holder of the PPPP (or PPP). At hearing the applicant also provided 2 laminated membership cards which purported to be issued by the PPP. I do not accept that the applicant was ever a member or office bearer of the Pakistan People's Party (PPPP or any other faction) between 1996 and 2006 despite the documents given to the Tribunal to support his claims of party membership. As put to the applicant at hearing, the country information indicates that it is relatively easy to obtain all manner of false documents in Pakistan and whilst this alone does not cause me to conclude that the documents have been fabricated I have given these documents no weight as I do not accept that the applicant is or was a member of the PPP for the reasons set out above. I do not accept that whilst the applicant was at school or college that he was a member of the People's Student Federation and that he had a hostile relationship with a member of the Islami Jamiati Talba (IJT) which was the student faction of the Jamaat Islami (JI). … 21 In the circumstances of the present proceedings, the second contention of the Appellant that the Tribunal failed to undertake those investigations is therefore rejected. 22 The failure to provide "any good reason" is expressed by the third contention to have been a failure to provide reasons "why it did not accept the relationship". But this contention must also be rejected. The explanation provided by the Tribunal more than adequately explains the basis upon which it proceeded. The Tribunal's reasons thus state in part as follows: I do not accept that the applicant had a relationship with a girl from his village and that as a result of this relationship he was accused of the crime of "zina" (extra marital sexual relationship) or that he was in breach of the customary tribal laws of his area. I find the evidence given that he had such a relationship and was accused of an extra marital relationship highly implausible. When asked to give evidence about the circumstances which resulted in the accusation the applicant was ambivalent and his evidence was contradictory and lacked the type of detail I would have expected from a person who had personally experienced the events he had outlined. He spoke of the events in an impersonal and detached manner and did not give evidence of what he observed, heard and said when speaking about these events. He appeared perplexed when I asked him whether he was curious as to what had happened to the girl with whom he had a relationship after he left the village. He appeared evasive when he discussed the possibility that she had been killed. He then stated that he did not know what had happened to her because he was a long way from the village. The applicant had given evidence earlier in the hearing that his family still lived in the village and he had also recently received a number of other items of evidence to support his application. I do not accept that if he and a girlfriend had been accused of "zina" that he would not have made enquiries as to whether his girlfriend had come to any harm following his departure. 23 The third contention is therefore also rejected.