SZMKR v Minister for Immigration & Citizenship

The federal magistrate's reasons for judgment 20 At [48] of his reasons for judgment, the federal magistrate characterised the appellant's first ground as relying on the judgment of the Full Court in SZLPO v Minister for Immigration & Citizenship (No 2) [2009] FCAFC 60. At [50], his Honour pointed out that copies of the DFAT reports were provided to the appellant, who therefore had access to the same information that the Tribunal did. The appellant, who was legally represented at the time, replied by way of statutory declaration. At [51]-[52], his Honour distinguished SZLPO, a case in which the Tribunal had made an inquiry about a letter submitted to it and found that the letter was fraudulent, without giving particulars of the information it had acquired and seeking comment. The federal magistrate in the present case held that there was no failure to comply with s 424A(1)(a) of the Migration Act because the Tribunal had provided the information that it had to the appellant. 21 In relation to the appellant's second ground, at [56] and [58]-[59], his Honour held that the Tribunal's letter to the appellant dated 6 February 2009 did set out clearly why the information was relevant, because it went to the credibility of the appellant's account. The appellant understood this and replied to it. 22 The federal magistrate also rejected the appellant's third ground. At [61]-[62], his Honour held that there was no evidence that the information to which that ground related was readily available. There was no simple phone call or simple step that the Tribunal could have undertaken. His Honour distinguished the judgment of Flick J in SZIAI v Minister for Immigration & Citizenship [2008] FCA 1372 (2008) 104 ALD 22, a case in which a simple phone call may have been all that was required.

The grounds of appeal 23 The original notice of appeal filed in this Court on 21 September 2009 contained six grounds of appeal. Ground 1 alleged error by the federal magistrate in finding that there was no jurisdictional error on the part of the Tribunal by failing to comply with s 424A(1)(a) of the Migration Act. Ground 2 alleged error by the federal magistrate in failing to find that the Tribunal relied on the source of the information as part of its reason for affirming the decision under review, without giving the appellant clear particulars relating to that source. Ground 3 alleged that the federal magistrate erred in limiting the particulars required under s 424A(1)(a) of the Migration Act to those available to the Tribunal. Ground 4 alleged that the federal magistrate erred in failing to find that there was jurisdictional error by the Tribunal in failing to comply with s 424A(1)(b) of the Migration Act. Ground 5 alleged that the federal magistrate erred in failing to find that there was jurisdictional error on the part of the Tribunal in failing to comply with s 424A(1)(c) of the Migration Act. Ground 6 alleged that the federal magistrate "erred in failing to find that the Tribunal's failure to use its powers to inquire into material that was readily available and centrally relevant to the decision was so unreasonable as to constitute jurisdictional error." All grounds except ground 3 were particularised by reference to the same six paragraphs of particulars appended to ground 1. It is unnecessary to refer in detail to those six paragraphs of particulars, as they were not pursued. 24 At the hearing of the appeal, counsel for the appellant sought leave to rely on a further amended notice of appeal. Grounds 3 and 5 in the original notice of appeal were deleted. The particulars to grounds 1, 2 and 4 were amended to the following: I. The Tribunal failed to give the appellant clear particulars relating to the source of information received from the Australian Department of Foreign Affairs and Trade ("DFAT") to the extent that: i. The Tribunal failed to give clear particulars of the basis of the knowledge held by the DFAT contact of the affairs of the Freedom Party II. Further, the Tribunal failed to give clear particulars identifying the lack of evidence in the DFAT reports corroborating the appellant's claims that he was a member or joint secretary of the Freedom Party as having been part of the reason for affirming the decision under review. 25 In ground 6, the reference to unreasonableness was deleted, so as to leave the ground alleging that the Tribunal's failure to use its powers to inquire into material that was readily available and centrally relevant to the question constituted jurisdictional error. New particulars were included. Particulars of inquiries that should have been made referred to inquiries into the basis of the knowledge held by the DFAT contact and the contact's credibility, and following up questions asked of DFAT that had not been answered. Particulars of the jurisdictional error were that the Tribunal's failure to conduct inquiries was unreasonable, and that that failure constituted a failure to undertake its statutory duty of review.

Section 424A of the Migration Act 26 Section 424A of the Migration Act is intended to codify an aspect of the Tribunal's obligations, as a decision-maker exercising statutory power in relation to important matters affecting the rights of people who come before it, to afford to those people procedural fairness. The fact that the obligation is codified is emphasised by s 422B of the Migration Act. The codification is in specific terms. Those terms impose on the Tribunal obligations that would not necessarily have fallen on it in the absence of codification of the obligation to provide procedural fairness. In the absence of the codification, the provision to the person affected of all of the information that the Tribunal had might have been sufficient compliance. The codification requires a more detailed approach by the Tribunal. Not only does s 424A(1)(a) oblige the Tribunal to give "clear particulars" of the information, s 424A(1)(b) requires that the Tribunal give an explanation of its tentative reasoning processes in relation to the information, so as to ensure, as far as is reasonably practicable, that the person understands the relevance of the information. The federal magistrate failed to give sufficient attention to the specific requirements of s 424A(1). In taking the view that the Tribunal did all it had to do by providing to the appellant all of the information the Tribunal had from DFAT, his Honour overlooked the obligations to give particulars and to explain the relevance of that information. 27 To deal adequately with the first ground of the appellant's application to the Federal Magistrates Court, it was necessary for the federal magistrate to ask himself whether the Tribunal had given "clear particulars of any information" that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. It was necessary to examine all of the information the Tribunal had that answered that description and to examine the particulars given, to ascertain whether there had been compliance. The precise information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review is usually ascertained by reference to the Tribunal's reasons for decision. Any information on which the Tribunal has relied to come to a conclusion that is part of the reasoning of the Tribunal leading to its conclusion that the decision under review should be affirmed will be information that answers the description in s 424A(1)(a). Because the Tribunal has relied on information, there must have been a time at which that information came to be the reason, or part of the reason, for the Tribunal to affirm the decision under review. At that time, the Tribunal's obligation to provide particulars of that information, and an explanation of its relevance, came into being. It came into being whether or not the Tribunal had already complied with s 424A(1) in relation to other information. 28 Undertaking that kind of analysis in the present case leads to the crucial question in this appeal. That is the question whether the fact that the DFAT reports contained, as the Tribunal put it in [98] of its reasons for decision, "nothing...which confirms the [appellant's] claims that he was a member of the Freedom Party or that he was the Joint Secretary of the party in the Narsingdi district from 1994 to 1995." Was the absence of such material in the DFAT reports information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review? If so, did the Tribunal comply with s 424A(1)(b), by ensuring that the appellant understood the relevance of that information and the consequences of it being relied on in affirming the decision under review? 29 The issue dividing the appellant and the Minister in the present case is whether the absence of information in a document received by the Tribunal from a third party can amount to "information" for the purposes of s 424A(1)(a) of the Migration Act. 30 In NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174, the Full Court dealt with a case in which the Tribunal had before it a report of a medical practitioner, Dr Nair. The Tribunal had made inquiries of Dr Nair, including asking him to give opinions on specific questions. Dr Nair failed to respond to one particular question. The Tribunal relied on that failure to respond in arriving at a finding adverse to the applicant in that case. The Tribunal did not comply with s 424A(1) of the Migration Act in relation to that failure. The question for the Full Court was whether the Tribunal was bound to comply with s 424A(1). Weinberg and Allsop JJ held that the Tribunal was so bound. Tamberlin J dissented on this issue, although agreeing in the result of the case. At [26]-[27], Weinberg J said: On the appeal to this Court, Allsop J is of the view that the absence of any statement in Dr Nair's report regarding the likely behaviour of the appellant in a confrontational situation was not treated by the Tribunal merely as a "gap", but as implicitly probative of the psychologist's view that there was no such danger. As his Honour observes, if the form of Dr Nair's report, including what it did not say, did not have this significance for the Tribunal there would have been no point in mentioning it. Allsop J is of the opinion that the Tribunal's use of the omission in Dr Nair's report was "information" that should have been the subject of a letter in compliance with s 424A. His Honour considers that the Tribunal's failure to comply with the strict requirements of that section is fatal, and that jurisdictional error has therefore been established. 31 At [73], Allsop J referred to the proposition, stated by Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 (2004) 206 ALR 471 at [24] that a gap or lack of evidence was not "information" for the purposes of s 424A(1). At [74], Allsop J said: As part of its reasons for not being satisfied that the appellant might react in a confrontational way upon his return to Iran, the Tribunal cited the fact that Dr Nair's report did not state that he might. This was not in answer to a proposition that Dr Nair's report did say that. Rather, it was a statement that the form of Dr Nair's report and its failure to say that the appellant would behave in this way was of assistance in concluding that he would not. That is, the absence of such a statement in Dr Nair's report was taken by the Tribunal as supportive of the conclusion that he would not behave in that way, implicitly a relevant proposition as to how the appellant would behave upon return to Iran was being extracted from the form of Dr Nair's report. 32 His Honour went on to say that care needs to be exercised in applying the proposition from VAF, to which his Honour had referred in [73]. His Honour then said: Here, the absence of something in Dr Nair's report was not merely taken as a gap, but was implicitly probative of Dr Nair's view that there was no such danger. 33 The facts of NBKS are relevantly indistinguishable from those of the present case. What the Tribunal relied on in [98] of its reasons for decision was not merely a gap in the reports from DFAT. The Tribunal's statement that nothing in the DFAT reports confirmed the appellant's claims that he was a member of the Freedom Party or its joint secretary in the Narsingdi district from 1994 to 1995 is a conclusion drawn from a reasoning process that relies on a number of implicit positive propositions. The first of those propositions is that the DFAT informant had the requisite knowledge to supply evidence about the appellant's claims as to membership and office-holding in the Freedom Party. The second is that, in response to DFAT's inquiries, the informant would have been likely to pass on this knowledge to DFAT when he was interviewed by a DFAT representative (which may involve the assumption that the DFAT representative would have asked the informant the right questions). Third, the informant did not pass on such knowledge to the DFAT representative. Fourth, the reason for the failure to pass on that knowledge was that the facts did not exist as the appellant asserted them, and therefore the informant did not know them. As was the case in NBKS, the absence of evidence from someone who would have been expected to be able to provide such evidence, and to provide it, was treated as an implicit positive statement, not merely as a gap. 34 Much of the argument in the present appeal focused on the question whether NBKS had been overruled by the subsequent judgment of the High Court of Australia in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26. That case was concerned with reliance by the Tribunal on a prior statutory declaration of the two applicants in that case. The argument was that inconsistencies between the statutory declaration and the oral evidence of the applicants to the Tribunal was "information", for the purposes of s 424A(1) of the Migration Act. At [16]-[20], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ expressed several reasons for rejecting this argument. At [17], their Honours pointed out that it had not been demonstrated that the statutory declaration would be the reason, or a part of the reason, for affirming the decision under review in that case. At [18], their Honours said that it was difficult to see how the Tribunal's disbelief of the oral evidence, as a result of inconsistencies with the statutory declaration, could be characterised as constituting "information" within the meaning of s 424A(1)(a). Their Honours referred to the proposition of Finn and Stone JJ in VAF with approval. After quoting that proposition, their Honours said: If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. 35 At [19]-[20], their Honours pointed to the practical difficulty of regarding inconsistencies as information for the purposes of applying s 424A. In particular, at [20], their Honours referred to the ongoing need to comply with s 424A in respect of each new round of inconsistencies, arising from the last compliance with s 424A. Their Honours characterised this as a "circulus inextricabilis". At [21], their Honours concluded that the relevant parts of the statutory declaration were not information falling within s 424A(1)(a) of the Migration Act. 36 It is apparent from an examination of the reasoning of the majority in SZBYR that the Court was not dealing with the sort of implicit positive that was the subject of NBKS and is present in this case. The approval of the proposition from VAF is not inconsistent with the view of Allsop J in NBKS that care needs to be taken in applying that proposition. Most significantly, despite the fact that the majority in the High Court was citing authority of the Full Court of this Court (other cases were cited besides VAF) there is no express statement to the effect that NBKS should be overruled. 37 Subsequently, a number of judges of this Court have discussed the question whether NBKS has been overruled impliedly by SZBYR. So far as the researches of counsel in this case show, no judge has concluded that NBKS is no longer good law. A number of judges have expressed the view that NBKS has not been overruled. The question was raised in the judgment of the Full Court in Minister for Immigration & Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 (2007) 163 FCR 285 at [71]-[75] but the Full Court left it unresolved. In SZGSI v Minister for Immigration & Citizenship [2007] FCAFC 110 (2007) 160 FCR 506, the Full Court held that the Tribunal had not failed to comply with s 424A(1) of the Migration Act in respect of the result of its inquiries of a clergyman at a church attended by the appellants in that case. The clergyman had said that he was unable to comment about certain matters. The Full Court held that this inability was not "information" for the purposes of s 424A(1)(a), but merely a gap in the evidence. At [43], Marshall J expressed agreement with the view of Weinberg J in NBKS. At [1], Moore J expressed agreement with the reasons for judgment of Marshall J on the relevant point. At [6], Finn J expressed agreement with Marshall J, except that his Honour refrained from expressing a view on whether, if at all, an omission could constitute "information" under s 424A. His Honour referred to SZBYR in this context. In SZKCQ v Minister for Immigration & Citizenship [2008] FCAFC 119 (2008) 170 FCR 236, the Full Court held that the Tribunal had failed to comply with s 424A(1)(b) of the Migration Act in respect of the results of investigations by the Tribunal through the Australian High Commission in Islamabad to officials of a political party in Pakistan. One member of the Full Court, Buchanan J, also held that there had been a failure to comply with s 424A(1)(a). In the course of his judgment at [85]-[93], Buchanan J discussed at some length the question whether NBKS had been impliedly overruled by SZBYR and expressed the view that no such overruling had occurred. The other two members of the Full Court, Stone and Tracey JJ at [1] declined to express any opinion on that point. To the extent to which opinions have been expressed, they favour the proposition that NBKS remains good law. I share that view, on the basis of my own reading of NBKS and SZBYR. 38 There can be no doubt that the Tribunal did form the view that the failure of the informant in Bangladesh to confirm the appellant's claims as to membership and office-holding in the Freedom Party would be part of the reason for affirming the decision under review. The Tribunal expressed precisely this reasoning in the first sentence of [98] of its reasons for decision. At [100], for reasons that included that failure, the Tribunal did not accept that the appellant was ever a member of the Freedom Party in Bangladesh, or that he was the joint secretary of the party in the Narsingdi District from 1994 to 1995. The implicit assertion arising from the absence of material in the DFAT reports was used by the Tribunal to undermine the appellant's case. 39 The result is that, because the Tribunal relied on the failure of the informant in Bangladesh to confirm the appellant's membership or office-holding in the Freedom Party as an implicit assertion that the appellant was not a member or office-holder in that party, the Tribunal was obliged to comply with s 424A(1) of the Migration Act in respect of that information. It was obliged to give him particulars of the implied assertion of the informant. It was obliged to ensure, so far as was practicable, that the appellant understood why the information was relevant to the review and the consequences of it being relied on in affirming the decision under review. It was obliged to give the appellant an opportunity to comment on or respond to the information. The Tribunal did none of these things. It did not mention the information at all in its letter of 6 February 2009. Merely to pass on to the appellant the full text of the reports from DFAT did not operate to convey to him the implicit assertion on which the Tribunal relied or the way in which that assertion might be used to damage the appellant's case. The way in which the appellant responded to the letter of 6 February 2009 in his statutory declaration demonstrates that the significance of the implicit assertion did not occur to him. The terms of paras 3 and 4 of the statutory declaration show that the appellant was unaware that he had to deal with the proposition that he was not the joint secretary of the Freedom Party in the Narsingdi District, as a result of the material supplied by DFAT. Paragraphs 5 and 6 show that the appellant actually regarded the DFAT reports as corroborating his claim to membership of the Freedom Party. 40 There is obviously no substance in the argument of counsel for the Minister that this conclusion would give rise to a circulus inextricabilis of the kind referred to in SZBYR. An implied assertion is no different from any other item of information in the way in which s 424A(1) of the Migration Act impacts on it. In no sense does the requirement that the Tribunal comply with s 424A(1) in relation to such an item of information require the Tribunal to continue to notify an applicant of its reasoning processes, in the way in which applying s 424A(1) to every gap in the evidence identified by the Tribunal would do. 41 The Tribunal's decision in the present case was therefore tainted by jurisdictional error. Section 424A(1) imposed duties on the Tribunal. The Tribunal could not exercise its jurisdiction validly without performing those duties. It did not perform them. Its failure to do so was of importance in the outcome of the case, because of the reliance the Tribunal placed on the fact that the DFAT reports did not confirm crucial elements of the appellant's case. The federal magistrate was in error in failing to find that this jurisdictional error existed. His Honour should have held that the Tribunal failed to comply with s 424A(1) in respect of each of its paras (a), (b) and (c), in relation to this aspect of the DFAT reports. The Tribunal did not remedy this deficiency by complying with s 424AA in relation to the information.

Failure to make inquiries 42 In relation to ground 6 of the amended notice of appeal, there was no error in the judgment of the federal magistrate. This was not a case in which the Tribunal was obliged to make further inquiries in relation to the content of the DFAT reports. There was nothing to show that such further inquiries would have produced any more information. The fact that the Tribunal had made two inquiries through DFAT without ascertaining further information, coupled with the information that the informant "became imprecise" on the second contact, suggests strongly to the contrary. It seems likely that any further attempt to obtain information from the informant would have led to even greater reluctance on the informant's part to provide such information. Although it would have been relatively easy for the Tribunal to ask further questions of DFAT, it would have been far from simple for DFAT to pursue its inquiries any further. While there are circumstances in which a failure to make further inquiries about a matter that could be cleared up simply may amount to jurisdictional error on the part of the Tribunal, this case appears to lie beyond the area of such required inquiries. In Minister for Immigration & Citizenship v SZIAI [2009] HCA 39 at [25], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ characterised that area by saying: 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. In the present case, there was no obvious inquiry and no fact the existence of which could be ascertained easily.

Conclusion 43 The conclusion that there was jurisdictional error in the failure of the Tribunal to comply with s 424A(1) of the Migration Act leads to the result that the appeal must be allowed. The orders made by the federal magistrate must be set aside. For those orders, there must be substituted orders that provide remedies by way of certiorari and mandamus, directed to the Tribunal. The effect of certiorari is to remove into this Court the decision of the Tribunal for the purpose of quashing it, and quashing that decision. The effect of mandamus is to require the Tribunal to hear and determine the appellant's application for review of the decision to refuse him a protection visa according to law. Applying the usual principle, that costs follow the event, there should be orders in favour of the appellant for costs in respect of the proceeding in the Federal Magistrates Court and the appeal. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray.