SZNSI v Minister for Immigration and Citizenship

Federal Court of Australia|2010-03-15|Before: Mr J, Flick J

Solicitor for the First Respondent: Mr G Johnson (DLA Phillips Fox Lawyer)

GENERAL DIVISION NSD 1215 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

GENERAL DIVISION NSD 1215 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT 1 The Appellant is a citizen of Bangladesh. 2 He arrived in Australia on 14 September 2008 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) Visa on 15 October 2008. A delegate refused that application by letter dated 19 January 2009, and on 13 February 2009 he applied to the Refugee Review Tribunal for review of the delegate's decision. 3 The Tribunal affirmed that decision and published its reasons for doing so on 2 June 2009. 4 An application for review by the Federal Magistrates Court was filed on 29 June 2009, and an amended application was filed in that Court on 7 October 2009. The application, as amended, was dismissed on 7 October 2009: SZNSI v Minister for Immigration and Citizenship [2009] FMCA 1027. 5 A Notice of Appeal was then filed in this Court on 28 October 2009. 6 Counsel was retained to appear on behalf of the Appellant shortly prior to the hearing of the appeal on 9 February 2010. The Grounds of Appeal were then amended in Court and leave was granted for the Applicant to file an amended Notice of Appeal. The sole Ground of Appeal on which the appeal thereafter proceeded was expressed as follows: 1. The Federal Magistrate erred by not finding that the Second Respondent made jurisdictional error by depriving the Appellant of the hearing to which he was entitled under section 425 of the Migration Act. Particulars. (a) The time allowed by the Second Respondent for the Appellant to respond in writing to the concerns of the Second Respondent (from 26 March 2009, the date of the Tribunal hearing to 6 April 2009) to a large number of matters was unfair. (b)The circumstances of the Second Respondent advising the Appellant of the matters to which he was to make a written response were unfair given the large number of matters to which the Appellant was required to respond. Counsel explained that the ground being advanced was framed exclusively as a contravention of s 425 of the Migration Act 1958 (Cth) and that no reliance was placed upon any alleged contravention of s 424A: eg., SZBYR v Minister for Immigration and Citizenship [2007] HCA 26,235 ALR 609. Counsel for the Respondent Minister accepted both that the Federal Magistrate had rejected a submission that there had been a contravention of s 425 and that the amended Ground could properly be raised on appeal.

Eleven Days To Reply 7 Argument before this Court focussed on the amount of time in which further submissions were to be provided to the Tribunal. That argument was directed to an exchange between the Tribunal Member and the present Appellant at the conclusion of the hearing before the Tribunal. 8 During the course of the Tribunal hearing it became apparent that the Tribunal Member was having reservations as to whether the now Appellant was a "credible or truthful witness". The Member communicated her concern to the now Appellant and towards the end of the hearing raised a series of about 15 matters in respect to which she invited the Appellant to respond. After detailing the matters of concern, the following exchange occurred: MEMBER: So you don't have to respond now, and if you want to add anything to what you have already told me on those issues, I can give you a week or so to prepare a written response. APPLICANT: Actually I need more than a week, I need two months time. MEMBER: No unfortunately we can't allow that period of time, I'm simply giving you time, in order to write me a response to the things we discussed today. And a week would be more than adequate because I'm quite happy to accept the facts. APPLICANT: I will not be able to collect the papers from Bangladesh. MEMBER: Well you've had some considerable time to obtain whatever documents you need, and you did indicate that you were going to do so in your original application. So, I'm afraid that a week is the most I can give you.

A short time thereafter the Tribunal Member said: … You have a week to respond. It's not, the issue is not the evidence, but the contradictions in the evidence. Why you say one thing, one time, and a different thing now. It's the contradiction that's the problem. So you need to explain why there is contradiction and omissions in your evidence, you don't have to prove any of those events, as such. … A little later in the transcript the Tribunal Member extended the time permitted to 11 days. The hearing was to be held on 26 March 2009 and the now Appellant was given until 6 April 2009 to file his further response. The Tribunal Member thus stated: You should get that [information] to me by the 1st April. I'll tell you what, I'll make that the following Monday, because I won't have a chance to look at it, so the following Monday is the 6th April, so it's a little over a week. 9 Two general observations should briefly be made at the outset in respect to this exchange, namely: · irrespective of whether or not the Tribunal was obliged to extend additional time to the now Appellant to provide any further "response to the things" canvassed in the exchange, in some cases an adequate "response" may extend beyond simply making a submission on the inconsistencies in the existing evidence. In some cases, an adequate response may also involve a further and more detailed account of the facts being given by a claimant and involve the securing of further evidence; and · although the Tribunal necessarily requires flexibility, so that it may give the directions it considers appropriate in any given case in relation to the time within which any further response is to be provided, the time permitted must be commensurate with the task to be undertaken and of sufficient duration to make the opportunity a meaningful one. The time permitted should be determined more by the desire to secure a meaningful response than to the administrative convenience of the Tribunal.

General Principles 10 As a matter of general principle, and unconstrained by the particular statutory regime set forth in the Migration Act 1958 (Cth), it may be accepted that a claimant should normally be given adequate time in which to prepare for an administrative hearing: Lee v Department of Education and Science (1967) 66 LGR 211; R v Thames Magistrates Court; Ex parte Polemis [1974] 1 WLR 1371 ("Ex parte Polemis"). In Ex parte Polemis Lord Widgery CJ observed at 1375: To start with, nothing is clearer today than that a breach of the rules of natural justice is said to occur if a party to proceedings ... is not given a reasonable chance to present his case. It is so elementary and so basic it hardly needs to be said. But of the versions of breach of the rules of natural justice with which in this court we are dealing constantly, perhaps the most common today is the allegation that the defence were prejudiced because they were not given a fair and reasonable opportunity to present their case to the court, and of course the opportunity to present a case to the court is not confined to being given an opportunity to stand up and say what you want to say; it necessarily extends to a reasonable opportunity to prepare your case before you are called on to present it. A mere allocation of court time is of no value if the party in question is deprived of the opportunity of getting his tackle in order and being able to present his case in the fullest sense. See also: Claro v Minister for Immigration, Local Government and Ethnic Affairs (1993) 46FCR 494 at 506 per Burchett J; Rogers v Law Coast Mortgages Pty Ltd [2002] FCA 181 at [24] per Finn J; McGibbon v Linkenbagh (1996) 62 IR 426 at 433 to 434 per Kiefel J; Stewart v Judicial Committee of the Auckland Racing Club (Inc) [1992] 3 NZLR 693 at 701. 11 It may equally be accepted that an administrative hearing should normally be of sufficient length to allow a claimant adequate time in which to address the legal and factual issues in need of resolution. And, if issues emerge during the course of a hearing which cannot then be properly addressed, an adjournment to a future date may be warranted: R v Hurse [1883] 2 NZLR (SC) 94 at 102 to 103; Re Gasparetto et al. and City of Sault Ste. Marie (1973) 35 DLR (3d) 507 at 511; Stevenson v United Road Transport Union [1976] 3 All ER 29 at 38 to 41. What constitutes adequate time in which to either formulate a case or to advance a case at hearing, and adequate time in terms of the length of any adjournment warranted, will depend upon the facts and circumstances of each individual case. 12 As a matter of general principle, it is also the case that procedural fairness does not require a decision-maker to disclose every aspect of the decision-making process. In F. Hoffman-La Roche & Co. A.G. and Ors v Secretary of State for Trade and Industry [1975] A.C. 295 ("Hoffman-La Roche"), Lord Diplock there observed at 369: … the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished. There is no general requirement to give a party a "running commentary on his prospects of success, warning him of every reason why his claims might not be thought sufficient to justify" the relief sought: Applicant S214 of 2003 v Refugee Review Tribunal [2006] FCA 375 at [32], 90 ALD 632 at 641 per Edmonds J (referring to what Gleeson CJ and Hayne J had said in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [31], 206 CLR 57 at 69). See also Commissioner for Australian Capital Territory Revenue v Alphaone (1994) 49 FCR 576 at 591 to 592; Scorgie v Minister for Immigration and Citizenship [2007] FCA 2046 at [10], 47 AAR 314 at 317.

The Constraint Imposed by s 422b 13 But the role such general principles of administrative law have to play in the resolution of claims being made for a protection visa under the Migration Act, and the review of such decisions by the Refugee Review Tribunal, must necessarily take into account the particular statutory provisions relevant to the review of adverse decisions. 14 As has been repeatedly stated, Part 7 Division 4 of that Act provides an exhaustive statement of the requirements of the hearing rule of natural justice in respect to the review of (inter alia) decisions refusing to grant a protection visa: Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83, 257 ALR 427. Emmett, Kenny and Jacobson JJ there summarised the effect of these provisions as follows: [8] Against that background, Division 4 of Part 7 deals with the conduct of a review of an RRT-Reviewable Decision by the Tribunal. Division 4 consists of ss 422B to 429A. Section 422B is of particular significance in the appeal. Under s 422B(1), Division 4 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Under s 422B(3), the Tribunal must act in a way that is fair and just in applying Division 4. [9] The natural justice hearing rule referred to in s 422B(1) reflects those aspects of the requirements of procedural fairness that relate to the presentation of an applicant's claims to the Tribunal. The statement that Division 4 is to be taken to be exhaustive of those aspects of the requirements of procedural fairness in relation to the matters it deals with imports a somewhat more specific limitation upon the scope of procedural fairness than might have been the case by a global reference to the conduct of reviews by the Tribunal. Thus, the matters that Division 4 deals with are to be identified by reference to its particular provisions and not by reference to its general subject matter (see WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624 at [57]). [10] Section 422B was intended to overcome the effect of the decision of the High Court in Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57. That is to say, Division 4 was intended to provide comprehensive procedural codes that contain detailed provisions for procedural fairness. However, these codes exclude the common law natural justice hearing rule in relation to the matters dealt with in Division 4. On the other hand, those aspects of the common law of natural justice that are not dealt with by Division 4, such as the bias rule, are not excluded (see Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214 at [64]-[67]). See also: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [48], 232 CLR 189 at 205 to 206; VXDC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1388 at [22] to [31], 146 FCR 562 at 568 to 570 per Heerey J; SZMAR v Minister for Immigration and Citizenship [2009] FCA 1530 at [72] to [74] per Barker J. 15 These conclusions are but a specific application of the proposition that the statutory framework within which an administrative decision is made is of critical importance when considering what procedural fairness requires: cf. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs ("SZBEL")[2006] HCA 63 at [26], 228 CLR 152 at 160 to 161. Section 422B, it should be noted, does not purport to affect the rules of natural justice as to bias or prejudgment: SZMKG v Minister for Immigration and Citizenship [2009] FCAFC 99 at [96], 177 FCR 555 at 575 per Logan J. 16 The application of the more generally expressed principles of administrative law such as those expounded in (for example) Ex parte Polemis, supra, may thus have more relevance to other decisions taken pursuant to the Migration Act (eg., Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118 at [48], 88 ALD 304 at 321 per Kenny and Lander JJ) than to the decision presently under review. It remains, however, a matter for the Commonwealth legislature to resolve the extent to which, in the review of decisions of the present character, it permits a claimant to get "his tackle in order and … to present his case in the fullest sense". 17 Section 425 is one of the provisions contained within Part 7 Division 4 and provides the following: Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 424C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. Given the constraints imposed by Part 7 Division 4, this section remains a provision of central and fundamental importance in ensuring that some level of procedural protection is afforded a claimant. The importance of the provision was recognised as follows by Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ in SZFDE, supra: [31] The importance of the requirement in s 425 that the Tribunal invite the applicant to appear to give evidence and present arguments is emphasised by s 422B. This states that Div 4 "is taken to be an exhaustive statement of the requirement of the natural justice hearing rule in relation to the matters it deals with." [32] An effective subversion of the operation of s 425 also subverts the observance by the Tribunal of its obligation to accord procedural fairness to applicants for review. Given the significance of procedural fairness for the principles concerned with jurisdictional error, sourced in s 75(v) of the Constitution, the subversion of the processes of the Tribunal in the manner alleged by the present appellants is a matter of the first magnitude in the due administration of Pt 7 of the Act. 18 Without being exhaustive, s 425 will be breached where the Tribunal fails to notify an applicant of an issue determinative of his case: SZBEL, supra. Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ there expressed the following conclusions as to the procedural safeguards to which a claimant was entitled when appearing before the Refugee Review Tribunal:

[44] The Tribunal did not accord the appellant procedural fairness. The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review.

[45] That conclusion is decisive of the present appeal. It is as well, however, to say something more about the third aspect of the appellant's account which the Tribunal considered to be determinative. That was his being allowed ashore to obtain medical treatment before he jumped ship. The delegate had concluded that the appellant's returning to his ship was not consistent with the fear which the appellant said he then held for his safety. It followed that what were the circumstances surrounding the appellant's going ashore on this occasion was an issue arising on the review by the Tribunal.

[47] First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.

Their Honours went on to (inter alia) endorse the continued application of the principle expressed in Hoffman-La Roche, supra. 19 As was also concluded in SZGGD v Minister for Immigration and Citizenship [2009] FCA 1250 at [20] per Barker J, it "is properly the function of the Tribunal, pursuant to s 425 of the Act, and as an inquisitorial body, to question an applicant about his or her claims. The Tribunal is entitled to control the direction of the hearing, including by asking questions in order to satisfy itself of the merits of the application".

The Issues Raised and an Opportunity To Respond? 20 In identifying the 15 or so matters which remained of concern at the conclusion of the Tribunal hearing, the Tribunal Member was clearly conscious of the fact that inconsistencies in evidence need not equate with untruthfulness. Her comments as recorded in the transcript expressly state that her concern was "not the evidence, but the contradictions in the evidence". In such a context the following comments of Foster J in Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 194 are frequently cited: It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witness is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected. In raising her concerns with the now Appellant, the Tribunal Member was clearly seeking his input as to how these matters were to be resolved. 21 Counsel for the Respondent Minister did not dispute that the 15 or so issues raised by the Tribunal Member were issues which "may be open to doubt" and issues in respect to which it "must at least ask" the now Appellant to "expand upon … and … to explain" as suggested in SZBEL: [2006] HCA at [47], 228 CLR at 166. What the Respondent Minister did contend, however, was that the Appellant had, in fact, been extended that opportunity to respond during the course of the hearing and that any further opportunity extended to him was an opportunity to which he was not entitled. 22 It was also common ground that each of the issues upon which the now Appellant was extended additional time to file further submissions had been raised during the course of the Tribunal hearing. Counsel for the Appellant accepted that questions had been asked in respect to each of the issues but contended that they provided an inadequate opportunity to address each issue and that the time allowed to file further submissions was inadequate. Section 425, Counsel contended, had thus been breached. 23 Particular emphasis was properly placed by Counsel for the Appellant upon three specific contentions, by reference to which his more broadly based contention as to a contravention of s 425 could be tested. The time allowed to file further submissions by 6 April 2009, he contended, was not an adequate opportunity to address the concern of the Tribunal as to: · the fact that the now Appellant had on prior occasions applied to remain in Australia; · the fact that the now Appellant had given inconsistent evidence as to the date of his marriage; and · the fact that the now Appellant raised claims as to the confiscation of land in Bangladesh. 24 Tested by reference to the opportunity to make further submissions in respect to the significance to be attached to the prior unsuccessful applications to remain in Australia, the argument has only limited textual support. The Tribunal Member's concern was expressed at the conclusion of the Tribunal hearing as follows: Now the fact that you have attempted on three previous occasions, at least that you've told me about, to migrate to Australia and were unsuccessful, may indicate that you're now manufacturing claims for protection in order to finally succeed in staying in Australia. When reference is made to earlier exchanges between the Tribunal Member and the now Appellant that appear elsewhere in the transcript, it becomes apparent that the Tribunal had previously asked questions directed to the Appellant's previous attempts to remain in Australia. The conclusion ultimately reached by the Tribunal in its Statement of Decision and Reasons published on 2 June 2009 is as follows: [107]. The applicant has applied for student visas to Australia on three occasions; all three were unsuccessful. This indicates to the Tribunal that the applicant has been attempting to live in Australia for some time. The contradictory, and inherently implausible claims made in relation to the protection visa, together with his previous attempts to live in Australia, lead the Tribunal to finds [sic] that the applicant's claims now are for the purpose of staying in Australia. Notwithstanding the submission to the contrary, it is concluded on balance that the now Appellant was given an opportunity during the course of the Tribunal hearing "to give evidence and present arguments" relating to this issue. 25 Any requirement to put the now Appellant on notice about the significance to be attached to the prior applications was satisfied during the course of the Tribunal hearing. Even though the Tribunal Member may not have expressed her concern at the conclusion of the hearing in the same terms as when the facts relevant to the prior applications were being explored, the now Appellant was given an opportunity to respond to the facts. 26 The opportunity guaranteed by s 425 and the general principles set forth in SZBELdo not require a Tribunal Member to explain the conclusions that may be reached by reference to answers given in response to questions asked or to inferences that may be drawn from those answers. 27 Nor has any contravention of s 425 been established in respect to the manner in which the Tribunal proceeded to resolve the significance to be attached to the inconsistent evidence given in respect to the date of marriage. Specific questions were directed to the various dates advanced and the Tribunal ultimately concluded: [84]. He gave contradictory evidence about the date of his marriage, 2005 on his protection visa application, then 1998 in his evidence to the Tribunal, which he then changed to 2008. He explained this as being because marriage was a two step process in Bangladesh; he had a social marriage in 1998 and registration in 2008. He then changed this to both events being in 2008. The now Appellant unsuccessfully sought additional time in which to obtain a copy of his marriage certificate "from the Government". In refusing this request, the Tribunal properly confined the Appellant to making a submission as to the inconsistencies in the existing evidence. The questions asked during the Tribunal hearing provided an adequate opportunity "to give evidence and present arguments". Moreover, the "issue" that had arisen "in relation to the decision under review" was not the date of the marriage. The issue was, as correctly stated by the Tribunal, the fact that inconsistent evidence had been given as to that date. That was not an issue that required the obtaining and provision to the Tribunal of a copy of any marriage certificate. 28 The submission directed to the evidence as to the claimed confiscation of land in Bangladesh is more difficult to resolve. 29 Relevant to this issue is the following exchange that occurred during the Tribunal hearing: MEMBER: So what documents do you say you were going to seek? APPLICANT: The case papers about the land of my house. MEMBER: When was the land confiscated? APPLICANT: 2008. MEMBER: What time in 2008? APPLICANT: Last week of December. MEMBER: So why did you not apply in December? Knowing that you would need to come to the Tribunal? APPLICANT: I thought that these papers would not be required.

The Tribunal shortly thereafter returned to this issue and the followingexchange occurred: MEMBER: … Now, one other point, you did mention, is it, when you say your land was confiscated, do you mean the house that you own in Pabna that you got from your father? APPLICANT: The house was not taken, but land adjacent to that was taken. MEMBER: So the house is still yours. APPLICANT: Yes. But over there, if you want any kind of document from the Government it takes two months time. MEMBER: If you're saying, are you saying that it was confiscated because of your political activities, is that right? APPLICANT: Yes. MEMBER: Who confiscated it? APPLICANT: * and his people. Former food advisor. MEMBER: How would he have the authority to do that? APPLICANT: I could not understand the meaning of this sentence. MEMBER: How would a private individual have the right to seize your property? APPLICANT: As I said, mentioned before earlier, that he's a member of the pressure group. He had worked for the Awami league in five contingencies and now he deriving the benefits. This is the person who could arrest these two Prime Ministers and put them in jail. MEMBER: So if that was the case, then you found out in December that your land had been taken by this man. Then why would you not think that you would need some evidence of that and start arranging to get it then? APPLICANT: At that time I was here. MEMBER: That's what I mean. So if you say it takes two months, had you applied in December, you would have had it by now. APPLICANT: It was not in my sense that these papers will be very much * or relevant. MEMBER: I'm still sorry I can't allow any further than the one week. Give me what you can.

If further documents were to be obtained in respect to the claimed confiscation of land, it may be accepted that an 11 day period was inadequate. 30 The reasons for decision of the Tribunal record both: · a rejection of that part of the claim; and · a use of its adverse finding as to his credibility to justify the rejection of that part of the claim. The Tribunal's reasons thus recount as follows a statement by the now Appellant that he had sent an email on 5 January 2008: [104]. The applicant claims that, since the email was sent, his land has been taken by Chowdery, one of the sacked ministers, who is in the Awami League and so has the power to do so. There is no information to support this claim and the Tribunal is not prepared to rely on the applicant's evidence, given that it has found he is not a witness of truth. The Tribunal finds that the applicant's land has not been seized as he claims. Unlike the argument based upon the inability to provide a marriage certificate within the 11 day period permitted, the "issues" that had arisen "in relation to" this part of the decision under review potentially extended beyond an "issue" as to credibility and extended to an absence of evidence. Counsel for the Appellant placed considerable reliance upon the "unfairness" of making a "positive finding" that the land had not been confiscated whilst at the same time effectively precluding a course whereby documents in support of the claim could be provided. 31 In some circumstances the opportunity guaranteed by s 425 "to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review" may well require the provision of additional time to secure evidence in support of submissions to be made. Such time as has expired prior to a Tribunal hearing may not necessarily answer the necessity to provide additional time to respond to an issue (for example) raised for the first time by the Tribunal during the Tribunal hearing process. 32 But that is not the present case. 33 The claimed contravention of s 425 in respect to this issue is also rejected. No contravention of s 425 is necessarily established if a claimant raises an issue for consideration but fails to provide at the time of the Tribunal hearing evidence sought to be relied upon. No course should be encouraged whereby a claimant raises a claim for the first time during the course of the Tribunal hearing but then fails to substantiate the claim. The opportunity guaranteed by s 425 is an opportunity "to give evidence and present arguments". It is not an opportunity to raise a fresh claim and to secure thereafter an adjournment or deferral of the review by the Tribunal. In the present case, the fact that the confiscation of the land was said to have occurred in December 2008 may well have provided a satisfactory explanation to the Tribunal as to why it had not been mentioned in the claim for the protection visa as first made in October 2008. But no explanation was provided as to why documents in respect to the confiscation of land were not sought in either December 2008 or prior to the hearing before the Tribunal. 34 It is concluded, in respect of each of the issues raised by the Tribunal Member at the conclusion of hearing, that the present Appellanthad adequate time in which to prepare the claims he sought to rely upon in advance of the hearing itself. Each of the issues of concern had been raised by the Tribunal Member during the course of the hearing. No additional time to make further submissions need have been extended. 35 Even if that conclusion is incorrect, the additional time extended to the now Appellant to make further submissions adequately ensured compliance with s 425. Whatever difficulty confronted the Appellant by reason of his not having previously obtained documents relevant to the claims he sought to advance before the Tribunal were difficulties he brought upon himself.

Conclusions 36 Properly characterised, all that the Tribunal was doing in the present case in raising the series of 15 or so matters with the now Appellant was extendingto him a further opportunity to make submissions to which he was not otherwise entitled. On one view of the matter, the time for making submissions in respect to the inconsistencies that emerged was during the hearing process itself. On another view, the now Appellant certainly cannot establish jurisdictional error if the Tribunal permitted a further opportunity to make submissions, albeit one more constrained by time than he may have liked. 37 Notwithstanding the fact that the Appellant contended during the exchange with the Tribunal Member that the time contemplated was inadequate, no submissions were forwarded to the Tribunal before or after 6 April 2009. Moreover, there is no basis for drawing any conclusion that the time permitted by the Tribunal was inadequate. Even if an assessment as to what constitutes adequate time to respond does not take into account those events which preceded the application for review by the Tribunal, or the identification by the Minister's delegate as to the reasons for the adverse decision, the now Appellant was invited by letter dated 24 February 2009 to attend a hearing before the Tribunal on 26 March 2009. That letter advised that the Tribunal had considered the materials but was "unable to make a favourable decision on this information alone".A hearing was conducted on 26 March 2009 and lasted about three hours. Presumably, consideration had been given by the now Appellant to those matters he wished to canvass with the Tribunal in the month preceding the Tribunal hearing. Any attempt to now assess any period of time in excess of the week or so permitted by the Tribunal in the present case, it is considered, would be an impermissible encroachment upon the power of the Tribunal to give such directions as it sees appropriate. Whether or not a Federal Magistrate or this Court may have permitted more or less time is not to the point. 38 Even had the present Appellant's arguments been judged by reference to the general administrative law principles, they would have been rejected. 39 No error is discernible in the Federal Magistrate's rejection of contentions directed to this limitation upon the time permitted. 40 No contravention of s 425 has been established. The appeal is to be dismissed. 41 There is no reason why the Appellant should not pay the costs of the First Respondent.

ORDERS 42 The Orders of the Court are: 1. The appeal is dismissed. 2. The Appellant is to pay the costs of the First Respondent.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

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