SZOIN v Minister for Immigration and Citizenship

The STARTTS report 11 Between then and the revised first hearing date (4 December 2009), the appellant was assessed by a clinical psychologist at the New South Wales 'Service for the Treatment and Rehabilitation of Torture and Trauma Survivors' (STARTTS). A more detailed report was produced following this assessment by the clinical psychologist. It was produced on 8 December 2009, four days after the first Tribunal hearing. 12 The appellant had been referred by the mental health Team Leader for a comprehensive and systematic evaluation of his psychological state and overall level of functioning. The focus of the report was said to be to 'ascertain whether [the appellant's] symptoms are consistent with his experiences'. 13 The STARTTS report noted that the initial referral information indicated the appellant had presented with mild post-traumatic stress disorder (PTSD) symptomatology and low mood. It noted that the appellant reported that in Nigeria he experienced persecution and other significant traumatic experiences which had had a negative consequence on his overall psychosocial and emotional functioning. 14 Under the heading Clinical Presentation, the STARTTS report noted: [The appellant] reported a number of psychological difficulties that are impacting severely on his overall functioning as follows: Re-experiencing traumatic events [The appellant] reportedly experiences recurrent and intrusive recollections of him being captured and "initiated" into the group. These recollections, as [the appellant] reported, are usually in a form of images and thoughts. [The appellant] stated that these recollections are often followed by a sense of reliving the experience that is, being beaten by the group members and "initiated". [The appellant] reportedly experiences great distress associated with these intrusive thoughts, images and reliving of the events which is often accompanied by severe headaches, hyperventilation, heart palpitations, muscle tension and sweating. Avoidance of triggers [The appellant] stated that the intrusive memories, flashbacks and accompanied psychological distress and physiological reactivity are often brought on by talking about the traumatic events that he experienced or talking about his family and his life back in Nigeria. Further, [the appellant] stated that being "in a cage" further reminds him on a daily basis what has happened to him and his family. As such [the appellant] reportedly attempts to avoid conversations about the events and thinking about his traumatic experiences. Sleep difficulties [The appellant] sated that when intrusive memories and flashbacks are triggered, he often experiences nightmares. Specifically [the appellant] stated that he dreams about being captured and interrogated by the group, being beaten and instigated, dreaming about specific details of the experience. [The appellant] further reported that he has difficulty falling asleep as he is recollecting the traumatic experiences prior to falling asleep. [The appellant] further stated that prior to falling asleep, he often thinks about being detained and not being able to cope with the situation that he is currently in. Once he manages to fall asleep, [the appellant] reportedly can not sustain sleep after he has distressing dreams associated with his traumatic experiences. [The appellant] did not disclose the details of the dreams and was generally avoiding talking about the experience during the interview which is consistent with what he was reporting. Concentration problems [The appellant] further reported that he has great difficulty concentrating and completing even the simplest tasks further stating that he also has difficulties recollecting certain aspects of his life. Excessive guilt and worry [The appellant] reported feeling sad and angry all the time as he feels responsible for what has happened to his father and brother. [The appellant] stated that he incident happened because the group wanted to hurt him personally for not obeying their demands. [The appellant] reportedly worries constantly about the safety of his family and his own future if he is not released from the detention centre and able to study and work. [The appellant] stated that he often thinks that he is to be blamed for the situation that he is in at the moment and how he is not able to change things. He further stated that being isolated, without anyone to communicate with, further exacerbates his worry about future and guilt. Depression As prior to his trauma [the appellant] did not have similar experiences, the psychological difficulties that [the appellant] experiences are especially concerning for him. As a result of these symptoms and difficulties [the appellant] stated that he is very depressed and at times not hopeful about his future. [The appellant] reportedly has frequent crying outburst which often follow thoughts of worthlessness and hopelessness. [The appellant] stated that he is sluggish and finds it hard to motivate himself to do things. [The appellant] also reported lack of appetite for some time now. [The appellant] reported experiencing these difficulties for approximately past eight months although the severity of the symptoms and difficulties increased since his arrival to Australia. [The appellant] was unable to comment specifically about severity and duration of the symptoms associated with his depressed mood over the period of the last few months stating that his condition is gradually worsening by day. [The appellant] did however comment that over the last two weeks his mood changed drastically for worse as all of the acquaintances that he had in Detention Centre were moved to another compound. As such [the appellant] stated that he does not have anyone to talk to when he feels sad and angry and experiences distress associated with intrusive memories and flashbacks. [The appellant] stated that he suffers from frequent, severe headaches which he attributes to distress. [The appellant] reported that he also has an enlarged heart however at present this is not causing him any concern. Currently he is not on any medication. (emphasis added) 15 Findings were recorded that the psychological difficulties that the appellant reported as well as the assessor's impressions of his mental state during the interview warranted a diagnosis of PTSD and Major Depressive Disorder (MDD) as a comorbid disorder. The findings continued: Specifically, [the appellant] reported that he has been exposed to a number of traumatic events that involved actual serious injury and threat to the physical integrity of [the appellant] and his family members, resulting in intense fear. Associated symptoms including recurrent and distressing intrusive memories and dreams and sense of reliving the traumatic experiences as well as physiological reactivity that follows these symptoms, as reported by [the appellant], are reflective of diagnostic criteria for PTSD (according to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, DSM-IV). In addition, [the appellant's] efforts to avoid thoughts and conversations related to traumatic experience, sense of a foreshortened future, difficulties with sleep and concentration are additional indicators of diagnostic criteria for PTSD. As [the appellant's] PTSD symptoms reportedly have been present for a few months now and are causing [the appellant] clinically severe distress and impairment in his overall functioning, a diagnosis of chronic [PTSD] is reasonable. (emphasis added) 16 It was recommended that the appellant should receive psychological treatment to help him resolve symptoms associated with PTSD and depression. It was noted that specifically the ongoing detention was possibly acting as a trigger for the appellant's recurrent and intrusive memories of being captured and associated nightmares. Various recommendations were made for his treatment.

Subsequent reports and hearings 17 Shortly after, on 17 December 2009, the appellant attended a consultation with Dr Kipling Walker, a psychiatrist. According to Dr Walker's records produced by the Minister, the appellant's memories of events in Nigeria were 'calming down' but he declined to discuss the topic further. Dr Walker noted that he was guarded, declining to discuss memories of Nigeria and while there was no immediate risk apparent, it was considered appropriate to try a sedating antidepressant. 18 On 31 December 2009, the second Tribunal hearing was conducted and on 21 January 2010, the appellant's migration agent filed submissions with the Tribunal. The following day the appellant again attended a consultation with Dr Walker who found him depressed with mild MDD and possible PTSD but with no immediate risk. Mirtazapine (an anti-depressant) was prescribed. 19 The appellant attended Dr Walker's rooms again on 15 February 2010 but after waiting 15 minutes in the waiting area, departed. 20 On 23 February 2010, the Tribunal conducted its third hearing. Its decision given on 17 March 2010 was to affirm the decision under review. 21 On 6 April 2010, a further mental state Examination Assessment was conducted by the mental health Team Leader of IHMS by way of a follow up as to the appellant's condition. 22 An application was then made to the Federal Magistrates Court for review of the decision of the Tribunal. A Notice to Produce documents was issued to the Minister. The Minister responded on 19 July 2010 by producing the documents which satisfied the description in the Notice. The documents included the various reports discussed above (the Medical Reports). The appellant complains that those documents should have been before the Tribunal.

STATUTORY FRAMEWORK 23 The Tribunal's decisions are reviewable pursuant to s 411 of the Migration Act 1958 (Cth) (the Act). An application for review must be lodged under s 412. On review, the Tribunal may exercise all the powers and discretions that are conferred by the Act on the persons who made the decision (s 415(1)) and may affirm, vary, remit or set aside a decision (s 415(2)). 24 The main section of the Act which falls for consideration is s 418 which provides as follows: 418 Secretary to be notified of application for review by Refugee Review Tribunal (1) If an application for review is made to the Refugee Review Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application. (2) The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that: (a) sets out the findings of fact made by the person who made the decision; and (b) refers to the evidence on which those findings were based; and (c) gives the reasons for the decision. (3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision. (emphasis added) 25 The only provision arising directly for consideration in this appeal is s 418 but the framework in which it appears and the nature of the obligation it imposes is in part indicated by the surrounding provisions. Section 418 of the Act is contained in Pt 7 Div 2. Insofar as the conduct of the review is concerned, s 422B of the Act which is set out in Pt 7 Div 4 of the Act is in the following terms: 422B Exhaustive statement of natural justice hearing rule (1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. (2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. (3) In applying this Division, the Tribunal must act in a way that is fair and just. (emphasis added) 26 Section 424 enables the Tribunal to seek additional information.

FEDERAL MAGISTRATE'S REASONING 27 The primary question on appeal before the Federal Magistrate was whether the STARTTS report in particular should have been before the Tribunal, having been generated and produced well before its second and third hearings. 28 His Honour rejected that contention and noted that the Tribunal had concluded that the appellant was not credible on key aspects of his factual claims and was not truthful or credible in relation to the Convention claims. His Honour recorded (at [15]) (referring to the militia as MEND) that the matters influencing this were: 1) The provision of his brother's contact details as contact person on arrival in Australia was contradicted by his claim in his protection visa application that his brother was dead. The Tribunal considered and rejected the applicant's explanation for this inconsistency. 2) The Tribunal did not accept as true the contents of the letter said to be from the applicant's pastor in Nigeria, which he submitted in support of his claims relating to the death and burial of his father and brother. The letter asserted that the pastor had witnessed these events. The Tribunal formed this view because it preferred the results of the inquiries it had initiated which found no record of the pastor or his church. 3) The Tribunal did not accept the applicant's claim that he had undergone an initiation ceremony by the militants following his being abducted and detained by them for some days. The Tribunal considered this "extremely significant" and the applicant could not have omitted it from his protection visa application or attached statement. The Tribunal noted that the applicant mentioned this for the first time at the end of the interview with the delegate when it was clear to him that the delegate had serious reservations about his claims. 4) The Tribunal found the applicant's account of the claimed attack on his house in Lagos in March 2009 as not convincing. The Tribunal gave reasons for this. 5) The Tribunal was not satisfied that the applicant would have remained in Nigeria for 6 months following this incident given the intention to kill him. Further, given the applicant's own evidence, the Tribunal considered that if the militants had intended to kill him they could have done so. 6) The Tribunal did not accept that the applicant, nor any members of his family, were targeted by MEND. The Tribunal relied on independent country information which it researched to come to this conclusion. It gave reasons for this. 7) On the same basis the Tribunal also rejected the applicant's claim that he had been forcibly recruited into MEND, or that his father and brother had been abducted and killed by MEND members. Nor did it accept that the armed men entered his house because, given the circumstances described by the applicant, it was "far fetched and implausible" that he was able to escape. 8) The Tribunal was not satisfied that the MEND targeted the applicant and his family because of their religion or because they did not support MEND. 29 The argument before his Honour was that the Tribunal's action, in proceeding without receipt of the STARTTS report (and other Medical Reports) in circumstances where they should have been given to the Tribunal by the Secretary, was procedurally unfair, even though the Tribunal was unaware of their existence. The decision of the Tribunal was said to have been made in breach of the rules of natural justice. 30 It was common ground that s 422B of the Act did not apply as s 418 is in Div 2 and nothing in Div 4 of Pt 7 of the Act 'deals with' the situation before the Court: see Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252. 31 The Federal Magistrate concluded (at [41]) that the claimed failure of procedural fairness was answered completely when regard is had to WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 413 (WAGP) per Moore, North and Mansfield JJ. His Honour noted that the claim in WAGP was a denial of procedural fairness at common law, whereas at least a large part of the appellant's case in the Federal Magistrates Court was based on a failure to meet the obligation under s 418(3) of the Act. His Honour noted that there was no evidence that the Tribunal was aware of the existence of the medical documents and the appellant had the opportunity to be heard on the matters before the Tribunal. Secondly, his Honour concluded (at [51]) that any breach by the Secretary of s 418(3), even if such a breach could be shown, did not otherwise reveal jurisdictional error on the part of the Tribunal as the obligation fell on the Secretary, not the Tribunal. 32 His Honour also expressly disagreed with the submission that s 418(3) provided for any ongoing obligation of the Secretary. 33 His Honour also rejected any argument based on R v Criminal Injuries Compensation Board; Ex parte A [1999] 2 AC 330 (Ex parte A) which will be considered below. 34 It was also held (at [65]) that it was not clear that the medical documents were in the custody and control of the Secretary. 35 Moreover, his Honour held that even if it were to be taken that the appellant suffered from depression and PTSD as stated in the STARTTS report, 'this does not automatically lead to the conclusion' that this affected the appellant's performance before the Tribunal on any of the relevant occasions such as to provide a satisfactory explanation for his inability, as found by the Tribunal, to explain or address certain concerns it had put to him, let alone that it affected his capacity to give evidence. The latter complaint, (that he was not in a fit state to give evidence) was at the heart of the amended ground 3 before his Honour, a ground not pressed by the appellant. His Honour also noted that the Tribunal's findings on credibility were based on a number of different matters, not limited to the content of the appellant's accounts.

APPEAL GROUNDS AND ARGUMENT 36 The following arguments are raised on appeal to this Court. (A third ground was not pursued): 1. The decision of the Tribunal was infected by a breach of the requirements of procedural fairness as there had been a breach of s 418 of the Act. Particulars of this ground were: (i) Contrary to the finding of the Court Below, s 418(3) of the [Act] imposes a requirement on the Secretary of the Department of Immigration and Citizenship (the Secretary) that documents in the Secretary's possession or control which viewed objectively are relevant to the Tribunal's review be given to the Tribunal. (ii) Contrary to the finding of the Court Below s 418(3) of the [Act] does impose a continuing obligation on the Tribunal. (iii) Contrary to the finding of the Court Below, documents produced by the [Minister] under a Notice to Produce in that Court (that is medical and psychological records and reports referrable personally to the appellant and created whilst he was in Immigration Detention) were in the possession, care and control of the Secretary. (iv) The failure of the Secretary to comply with s. 418(3) of the [Act] resulted in the Tribunal not being apprised of information in the possession, care and control of the Secretary which may have explained those inconsistencies in the appellant's evidence which the Tribunal found decisive in finding that he lacked credit. 2. The relationship of the Department to the Tribunal was such that the Secretary was under an obligation to give to the Tribunal all documents in his or her possession, care or control that are objectively relevant to the Tribunal's review of the Delegate's decision. Failure to do so resulted in the Tribunal being unable to comply with the requirements of procedural fairness, in that it was deprived of information in the possession, care and control of the Secretary which may have explained those inconsistencies in the appellant's evidence which the Tribunal found decisive in finding that he lacked credit. 37 The appellant contends that the evident purpose of s 418(1) of the Act is to give notice to the Secretary to enable compliance with s 418(2) and s 418(3). Whereas subs (2) provides a time limit on the Secretary's providing copies of the delegate's statement of reasons to the Tribunal (and the other specified documents), subs (3) in contrast is directed to the actual review. In other words, subs (2) goes to the delegate's decision, whereas subs (3) goes to the review itself. As such it imposes a distinct obligation on the Secretary to provide the Tribunal with documents the Secretary considers to be relevant with 'documents necessary to carry out the review', to use the expression adopted by the appellant. The appellant submits that because subs (3) is not limited in time, the duty is ongoing such that the Secretary is obliged to provide such documents to the Registrar if he finds them and considers them to be relevant to the review providing that there is a review still open. As seems to be entirely plausible, there may be more than one file in more than one location. It does not follow that every document on every file will also be on other files. As it is quite clear that the Secretary will have medical reports of people in detention who claim to have suffered torture or trauma, it would be expected that the medical file would be checked to see whether there is anything in the opinion of the Secretary capable of being relevant to the determination. 38 The appellant contends that to satisfy the objective of s 418 of the Act there must be imposed on the Secretary's consideration a requirement of objectivity. We will consider this submission below. 39 The appellant contends that he was deprived of both a potential explanation for the manner in which he gave evidence and also corroboration of having suffered traumatic experiences. Having been deprived of that material by reason of the Medical Reports not being forwarded to the Tribunal, he contends that fair procedures within the meaning of that expression as used by the High Court in Kioa v West (1985) 159 CLR 550 at 584 and 621 have not been afforded to the appellant. 40 The appellant specifically argues that the Full Court decision of WAGP discussed below was incorrectly decided and that this Court should not follow WAGP. In WAGP, the document inadvertently excluded from the Tribunal's material was a document the appellant had refused to sign indicating that he was of Iranian nationality only. The Court proceeded, as we do, on the basis that in conducting the review the Tribunal was obliged to accord procedural fairness to the appellant: see Muin v Refugee Review Tribunal (2002) 190 ALR 601 (Muin) and Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88. However it was noted that, as in the present case, there was nothing to indicate that the Tribunal was aware of the existence of the missing document at the time of its decision. The inadvertence on the part of the Secretary in failing to ensure that the document was forwarded to the Tribunal was not something of which the Tribunal was aware nor something within its power or control. In those circumstances the Full Court considered that there was no failure on the part of the Tribunal to accord procedural fairness. In that case, however, a further reason for concluding there was no failure to accord procedural fairness was that the Tribunal had accepted that the appellant had refused to sign the statutory declaration. Notwithstanding this, it still reached an adverse view as to credibility based on other materials.

WAGP 41 In WAGP, the failure on the part of the Secretary was conceded. It is not admitted in this case that there was any failure, although we have come to the conclusion that there was non-compliance with s 418(3). Nevertheless, the question in WAGP, as it is here, was whether despite the Secretary's failure to comply with s 418(3), the Tribunal can be shown to have committed jurisdictional error in reaching its decision. In WAGP it was held that the Tribunal could not be so shown because the obligation under s 418(3) was not imposed on the Tribunal but rather on the Secretary. The Full Court held that failure by the Secretary to comply with the obligation did not vitiate the Tribunal's decision (see [51]). 42 That approach was consistent with the observations of the High Court in Muin in which Gaudron J said (at [46]): [T]here is nothing in the Act to suggest that the Secretary's compliance with s 418(3) is either a precondition to the Tribunal's conduct of review proceedings or to its making of a decision on review. 43 Justice Gummow said in Muin that (at [183]) it was 'highly doubtful' that the Secretary's failure to comply fully with s 418(3) so that the s 424 review process might be tainted, would thereby infect the 'more rigorous species of review with a hearing provided for by s 425'. The conclusion reached by Gleeson CJ, McHugh, Kirby and Callinan JJ in Muin was that no breach of s 418(3) had been demonstrated. It was unnecessary, therefore, for their Honours to consider the question of whether or not such a breach could give rise to jurisdictional error on the part of the Tribunal. 44 This issue also arose in Applicants S487/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1309. Sackville J reached a conclusion consistent with that arrived at by the Full Court in WAGP, at least to the extent of showing that the Secretary's compliance with s 418(3) was not a 'precondition to exercise of the Tribunal's review functions'. That decision was upheld in the Full Court (Moore, Branson and Emmett JJ) in S487 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 125. 45 In none of those decisions was there actually shown to have been a breach of s 418(3). In WAGP, however, a breach was conceded. In the present case, we consider there has been a breach and we were urged to reach a different conclusion from that reached by the Full Court in WAGP. 46 In WAGP, it was held (at [64]) that it would be a difficult task in many cases to demonstrate that the Secretary's view about the relevance of a particular document was erroneous. We agree with this observation. The Full Court concluded that it would be surprising if it were intended that a breach of s 418(3) by the Secretary, perhaps through inadvertence or through an error of judgment, should result in the Tribunal's decision being tainted with jurisdictional error. 47 Unlike WAGP and unlike Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Applicants S134/2002 (2003) 211 CLR 441, the present appeal raises a contention that the obligation does not continue for the duration of the determination process.

The Medical Records are in the Secretary's control 48 The Notice to Produce which was served on the Minister required production of 'all records relating to the '[appellant's] state of health or any medical treatment received while he was held in Immigration Detention'. Those records were produced by the Minister. No evidence was adduced by the Minister to suggest the documents were not in his care, custody or control. 49 As the appellant submitted and we agree, such a conclusion would not be open in light of the content of the Consent Form. The Consent Form was in these terms: The Medical Examination that you are about to undergo will provide information to the medical staff of [IHMS], the organisation which provides medical and health services to the Commonwealth of Australia, to help evaluate your health with respect to your admission to this facility. IHMS will maintain your test results, together with your medical history. This information will remain at all times the property of the Commonwealth of Australia. While you are in immigration detention you may need to consult a doctor for medical reasons. Some treating doctors are employees of IHMS. Other treating doctors are not employees of IHMS, but their services may nevertheless be required. The Commonwealth of Australia wants to ensure that all doctors who treat you have access to your medical records, so that all necessary and appropriate health care can be provided to you. If you consent, the Commonwealth of Australia will be able to ensure that all doctors who treat you, regardless of your physical location, will have access to your medical records, including those records already in the Commonwealth's possession. If you consent, the Commonwealth of Australia will also be able to ensure that if you are transferred to another place of immigration detention, such as anther facility, your medical records will be forwarded to the persons responsible for the management of that other place of detention. This means that doctors at that other place of detention will also have access to your medical records, so that all necessary and appropriate health care can be provided to you. Providing your consent will also enable the provision of health information to the Commonwealth of Australia to assist in the assessment of your placement options and the progression of your immigration outcome - for example, to assist in determining your suitability for community placement or your fitness to travel. You do not have to provide consent for the Commonwealth of Australia to access your medical records; however, it may limit the Commonwealth of Australia's ability to fully consider your health status when determining placement options and the progression of your immigration outcome. Do you consent to the Commonwealth of Australia, IHMS, and treating doctors who are not employees of IHMS, regardless of their physical location, accessing you (sic-your) medical records for the purposes of your health care, placement assessment and progression of your immigration outcome? (emphasis added) … 50 The only inference available from the content of the consent form is that IHMS was engaged on behalf of the Commonwealth to conduct the medical examination of the appellant while he was in the care of the Commonwealth as a detainee. While he was in the Commonwealth's detention and care, medical records created were, by reason of his execution of the Consent Form, to be available to the Commonwealth not only for his medical care but also for the purposes of 'the progression of your immigration outcome'. The final paragraph of the Consent Form made it clear that the consent was provided for those purposes in relation not only to employees of IHMS but also to other treating doctors who were not employees of IHMS. 51 These documents were in the control of the Secretary (for the Minister) whilst the appellant was in immigration detention. 52 The fact that the Minister produced the STARTTS report together with other medical records under the Notice to Produce is entirely consistent with the obligation which the Department assumes at the direction of the Secretary for, amongst other things, the health of the detainees under their charge. The production of the Medical Records by the Minister is entirely consistent with those health documents being under the control of the Secretary at the relevant time, because those documents were necessary to discharge the obligation assumed by the Minister, the Department and the general Commonwealth obligations in relation to detainees.

Relevant to the review 53 The Minister stresses that the appellant failed to establish that the medical records were, as the appellant contended, 'crucial' to the issues arising in the review as argued in the amended application. Nevertheless, there can be no doubt that the documents were relevant, as they were capable of explaining not only the demeanour of the appellant in the course of giving his evidence but also his unwillingness or inability due to his mental condition to discuss the very issues involving trauma resulting from his claimed treatment by the militia. 54 We agree with the Minister and the Full Court in WAGP that the objective relevance of a document is not the test to be applied by reason of s 418(3), except perhaps in an extreme case where the document was so clearly critical that it could only be inferred that failure to supply it to the Tribunal meant there was no discharge of the obligation to form a view. In our view, the Medical Reports are relevant but not 'crucial' to the appellant's claim. 55 What is required by s 418(3) is that the Secretary form an opinion as to relevance to the review. The Minister argues that this task of the Secretary had been completed and there was no ongoing requirement to consider what additional new documents were relevant to the review. We disagree with this contention as discussed in the next section. 56 For present purposes however, we infer that in light of the Minister's submission, the Secretary did not continue to form a view as to whether documents coming into his control were relevant to the ongoing review. That is a point of distinction from WAGP where the obligation to forward the document was accepted but its omission from the second Tribunal's papers was simply inadvertent. We infer that there was a conscious decision that the task had been completed and there was no ongoing obligation.

The obligation continues until completion of the review 57 Although the Federal Magistrate held (at [54]-[57]) that the obligation under s 418(3) of the Act cannot be a continuing obligation, we disagree. It is not an obligation which continues indefinitely but it is an obligation to produce documents which the Secretary considers to be relevant to the review and continues until the review is completed. Were it otherwise, an unequivocally 'crucial' document destroying or advancing a claim arriving the day after the Secretary had complied with the initial obligation to forward documents (or a file) to the Tribunal could simply be disregarded and withheld. That cannot be consistent with the plain purpose of the section or, indeed, the purpose of the Act. As the High Court observed in Plaintiff M61/2010E v Commonwealth (2010) 272 ALR 133 (at [27]) (footnotes omitted): First and foremost among those contextual reasons is that, read as a whole, the Migration Act contains an elaborated and interconnected set of statutory provisions directed to the purpose of responding to the international obligations which Australia has undertaken in the Refugees Convention and the Refugees Protocol. In some respects, as was explained in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, the provisions of the Migration Act may, at times, have gone beyond what would be required to respond to those obligations. It is not necessary to explore those issues here. Rather, what is presently significant is that the Migration Act proceeds, in important respects, from the assumption that Australia has protection obligations to individuals. Consistent with that assumption, the text and structure of the Act proceed on the footing that the Act provides power to respond to Australia's international obligations by granting a protection visa in an appropriate case and by not returning that person, directly or indirectly, to a country where he or she has a well-founded fear of persecution for a Convention reason. 58 Further, it cannot be the case that the Tribunal takes into account only the material that was available at the time the delegate made the decision under review. It was not suggested and could not be suggested that the Secretary has no obligation to forward to the Tribunal documents that he or she considers to be relevant to the review, which had come into the control of the Secretary between the time of the decision by the delegate and the time of compliance with the initial obligation under s 418, to forward documents to the Tribunal. Just as new obviously relevant documents are required to be forwarded to the Tribunal so as to enable it to discharge its obligations under the Act on the basis of current information as at the time of its determination, so also relevant documents which come under the control of the Secretary after the initial compliance under s 418 should also be provided to the Tribunal. In the medical context, this does not mean every record of a cough or a cold but for reasons explained above, the medical/psychological condition of this appellant while not necessarily determinative, was on any test relevant.

Is the Secretary's breach, a Tribunal breach? 59 The Minister argues that any breach of s 418(3) is not jurisdictional error by the Tribunal because the section imposes no obligation on the Tribunal. 60 The circumstances in which a third party breach not known to the Tribunal may result in jurisdictional error would be extremely limited. One example is SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, in which a third party represented himself to the then appellants to be a solicitor and migration agent duly licensed and received a substantial fee for acting for the family with respect to the Tribunal proceeding. The appellants followed the advice given by the third party, in particular, not to attend the Tribunal hearing. The High Court upheld the dissenting judgment of French J, as his Honour then was, in the Full Court. His Honour was of the view that the Tribunal had fallen into jurisdictional error because whilst it had made its decision blamelessly, its decision-making process was compromised by 'third party fraud'. 61 The High Court (at [53]) emphasised that the consequences of its finding of jurisdictional error was limited and that bad or negligent advice to an appellant "or some other mishap" that applies to the appellant's detriment does not vitiate the decision made. The High Court referred to French J's decision at [125] and following. His Honour emphasised at [128] that it was not about unfairness but about the effect of fraud on the Tribunal's decision-making process. 62 There is no assertion in the present case that any part of the process has been tainted by fraud or that the action of the Secretary was other than inadvertent. 63 In Applicant S1693 of 2003 v Refugee Review Tribunal [2004] FCA 1512 French J (at [41]) rejected a submission that there was support in Muin for a proposition that failure to comply with s 418(3) could amount to jurisdictional error. On appeal, the decision was upheld although this ground was not expressly considered (Applicant S1693 of 2003 v Refugee Review Tribunal [2005] FCAFC 151). 64 More recently in SZNZK v Minister for Immigration and Citizenship (2010) 115 ALD 332 (at [20]) Perram J followed French J in Applicant S1693 of 2003 [2004] FCA 1512, noting that an error in the performance of a function under s 418 by the Secretary cannot result, at least without something more, in a jurisdictional error by the Tribunal. His Honour observed that this follows from the fact that it has been held that a breach of s 418 does not constitute jurisdictional error. 65 We cannot agree that WAGP was clearly wrong. It is not only directly in point insofar as the crucial question is concerned but is also based on sound reasoning which is consistent with the approach taken by members of the High Court in Muin and also with S487 and SZNZK. 66 Although it is regrettable (and in our view did not accord with the requirements of s 418(3)) that the Medical Reports were not made available to the Tribunal, the error on the part of the Secretary in complying with s 418(3) (including continuing compliance until completion of the review) does give rise to the result that the Tribunal's decision is tainted with jurisdictional error.

Second ground of appeal based on Ex parte A 67 The second argument in the appeal was that in accordance with Ex parte A, the Tribunal proceeded, albeit through no fault of its own, to consider the case of the appellant in the absence of centrally relevant information that should have been passed to it by the Secretary of the Department. That process, it was submitted, was unfair. It was also added in support of this submission that contrary to the apparent reasoning of the Federal Magistrate (at [49]), there was no duty for the appellant or his agent to bring to the attention of the Tribunal the possible existence of documents of which he was unaware and which were in the possession of the Secretary and the Minister. The unchallenged evidence from the appellant was that he was unaware of the existence of the relevant reports. 68 In Ex parte A, a medical report was omitted from a police brief to the Criminal Injuries Compensation Board in the United Kingdom. The report was firmly corroborative of the applicant's claims. Without the report, this aspect of her claim was disbelieved. The House of Lords held that given the special relationship of the police to the Board in that the Board depended on the police to bring relevant documents and evidence to its attention, failure of the police to give the medical report to the Board involved a breach of natural justice (see Lord Slynn at 345F-H, 347-8B with whom the other Lords concurred). 69 The House of Lords emphasised that the case was to be considered exceptional. 70 In Ex parte A there was no identified statutory requirement for the police to provide particular documents to the Board. While there is no doubt that the Secretary and the Minister each stood in a position in relation to the Tribunal comparable to that of that police and the Criminal Injuries Compensation Board in Ex parte A, in the present situation there was an express statutory provision dealing with the obligations of the Secretary. 71 There is in the Act a prescriptive regime as to rights and obligations. The point of principle that this appeal engages has been the subject of consideration in another Full Court decision with which we agree (WAGP). In those circumstances and given that the nature of the obligation of procedural fairness is to be gauged by reference to the statutory framework in which the obligation arises, we consider that Ex parte A is not part of the law in Australia on this topic. The High Court has not seen the need to embrace it when the opportunity to do so has arisen. Further, as the decision in Ex parte A makes plain, it was an exceptional case. While the Medical Reports in the present appeal should, in our view, have been forwarded to the Tribunal, the facts fall well short of those under review in Ex parte A.

CONCLUSION 72 The Minister argued that the obligation under s 418(3) of the Act was not a continuing obligation. In our view, the obligation continues for the limited period of time until the completion of the Tribunal's determination. Further, the Medical Reports were in the control of the Secretary. If the Secretary, the Minister's representative, had taken that view of the matter, there can be little doubt that the Medical Reports, particularly the STARTTS report which was clearly within the control of the Secretary, would have been forwarded to the Tribunal. Its content was relevant to the review. It was unnecessary for the Secretary to be satisfied that its content would be crucial. 73 However, it does not follow that the Secretary's failure can be visited on the Tribunal. Nor can it be said, in light of the specific statutory regime dealing with the Secretary's duty, that the decision of Ex parte A, if it be part of the law of Australia, would apply. The breach of s 418(3) in this case was not a precondition to the exercise by the Tribunal of its review function, nor did it vitiate the Tribunal hearing or the decision-making process. Unlike SZFDE (at [52]) it cannot be said that the jurisdiction of the Tribunal remained "constructively unexercised". 74 It follows that the appeal must be dismissed. The grounds of appeal were all based on the failure on the part of the Secretary to forward the relevant documents and the appellant has been partially, although not ultimately, successful. In the exercise of our discretion, we make no order as to costs. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Bennett and McKerracher.

Associate: Dated: 18 March 2011 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1333 of 2010

JUDGES: BENNETT, RARES AND MCKERRACHER JJ DATE: 18 MARCH 2010 PLACE: SYDNEY

REASONS FOR JUDGMENT RARES J: 75 I have had the benefit of reading the judgment of Bennett and McKerracher JJ and agree with their conclusion that the appeal fails and the orders they propose. However, I have reached my conclusion as to the operation of s 418(3) by the different process of reasoning set out below.

THE TRIBUNAL'S DECISION 76 The relevance of the material in the STARTTS report to the issues considered by the Tribunal is, with hindsight, obvious. In its statement of decision and reasons the Tribunal recorded that at the second interview on 31 December 2009 it asked the appellant about being able to give further information concerning his experience with the group and militants. The Tribunal recorded that the appellant said that recalling the matter reminded him of what he went through and the memories traumatised him. At no point during the review process did the appellant, his advisor, the Minister or anyone else inform the Tribunal of any matter concerning the appellant's psychological state, nor was the Tribunal in possession of any information concerning the STARTTS report. 77 The Tribunal concluded that it did not find the appellant to be credible on some key aspects of his claim and it was not satisfied that he feared persecution in Nigeria from the militant group. It did not accept that he had been targeted by the group as claimed or that his father and brother were abducted and killed as claimed. It concluded that he was not truthful in relation to his claims. 78 Importantly, the second substantive description of matters on which the Tribunal based its conclusion that the appellant was not truthful or credible in relation to his Convention claims, was as follows: "Attached to the applicant's Protection visa application is a statement outlining his claims. In that statement he refers to November 2008 when 'there was an occasion where the militants disrupted a crusade'. During his Departmental interview he mentioned for the first time that he had gone through an initiation process in process in November 2008. He told the delegate that he had not mentioned it in his application because when he talks about it he experiences nightmares and bad dreams so he tries to block it out. During his evidence before the Tribunal he said he did not go into detail because he did not know he needed to put everything on paper. He said when the Tribunal asked him about the matter he was able to give detailed information. He also said that recalling the event causes him trauma. The Tribunal does not accept that the events described by the applicant occurred. The Tribunal does not accept that the applicant would have omitted such details in his Protection visa application, had he been abducted, blindfolded and threatened, as claimed. The Tribunal is of the view that such evidence is extremely significant and had it happened, it would be referred to in his Protection visa application. The Tribunal notes that it was mentioned for the first time at the end of the Departmental interview when it was quite clear to the applicant that the delegate had serious reservations about the applicant's claims. The Tribunal does not accept that the applicant was the victim of an initiation ceremony in November 2008, as claimed." (emphasis added)

THE SIGNIFICANCE OF THE FAILURE TO PROVIDE THE TRIBUNAL WITH THE STARTTS REPORT 79 It may be accepted that none of the Minister, the Secretary and the Department turned his or its mind to the relevance of the STARTTS report after its receipt by them for the purposes of the review that the Tribunal was undertaking. The question here is what consequence, if any, follows from that omission or error in administration so far as it affected the Tribunal according the appellant procedural fairness. The Minister's omission occasioned apparent injustice to the appellant because the Tribunal could not assess his claims and evidence with the benefit of the STARTTS report. But, I am unable to discern that, on the authorities, this administrative lapse caused the Tribunal to make a jurisdictional error. 80 In SZFDE v Minister for Immigration (2007) 232 CLR 189 at 201 [31]-[32] the High Court held that it was essential that the Tribunal be able to accord procedural fairness to an applicant for review. It held that if the processes of the Tribunal were subverted by fraud of a migration agent, practised on an applicant so that he or she was not able to appear before it, the Tribunal constructively failed to exercise its jurisdiction, even though it was unaware of the agent's fraud: SZFDE 232 CLR at 201 [32], 206 [51]-[52]. In this context, fraud is not confined to what the Court described as the "red blooded" species known to the common law: SZFDE 232 CLR at 195 [13]. 81 In public law, the legal concept of fraud is, like that involved with bad faith, concerned with an act beyond the power of the decision-maker, however honestly he or she may have acted. That is to say, the decision-maker's exercise of power will be capable of attack if it is relevantly affected by an improper purpose whether or not he or she is aware of that purpose. So, in SZFDE 232 CLR at 195 [14] the Tribunal acted blamelessly in proceeding on what appeared to it to be an ordinary situation in which it had invited an applicant to appear at a hearing but he had not attended. Aickin J explained this concept in The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 232-233 in a passage approved by the Court in SZFDE 232 CLR at 195 [13]. He said (151 CLR at 233): "Where some act is authorized to be done for a purpose, the doing of that act 'falsely avowing a legitimate purpose to cover the actual pursuit of an object outside the scope of the power' is better classified as 'improper' rather than 'corrupt' in the absence of an endeavour to obtain personal gain, though the ultimate result of invalidity would follow on either view. I use the term 'improper purpose' to mean one for which the relevant power or authority was not conferred. It makes no difference whether or not that purpose was known to, or believed or suspected to be necessary by, the person exercising the power. Generally speaking executive or administrative powers are conferred for a purpose ascertainable, with greater or lesser difficulty, from the terms of the instrument conferring the power." (emphasis added) 82 In Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at 448 [22], Gaudron, Gummow and Hayne JJ reaffirmed that procedural unfairness can occur without any personal fault on the part of the decision-maker. 83 In Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 614 [45]-[46] Gaudron J said that it was conceivable that a failure by the Secretary to comply with the requirements of s 418(3) might, in some cases, result in or contribute to jurisdictional error on the part of the Tribunal. She cautioned that mere non-compliance by the Secretary, would not necessarily result in jurisdictional error on the part of the Tribunal. But her Honour also said that s 418(3) imposed an administrative duty on the Secretary which had the evident purpose of enabling the effective and effectual exercise by the Tribunal of its review functions. Gleeson CJ and McHugh J each observed that the object of s 418(2) and (3) was to ensure that the Tribunal obtained all information in the Department's possession that is relevant to the review, namely, the same material that had been before the delegate: Muin 190 ALR at 608-609 [18]-[19], 628 [108]. 84 The Minister argued that, first, neither he nor the Secretary had any duty to provide the Tribunal with the STARTTS report and, secondly, the Tribunal had performed its function of review of the delegate's decision without its decision being affected by jurisdictional error. There is an incongruity in these submissions. The Tribunal, for the purpose of the review, may exercise all the powers and discretions of the Minister and his delegate in respect of the appellant's application for a protection visa by force of s 415(1). Had the delegate not made the decision under review before the Minister received the STARTTS report, then he or she would have been obliged to consider it as material of which the Minister (and thus his delegate) had constructive, if not actual, notice. That is because a decision-maker must make his decision on the basis of the most current material available to him or her. As Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 45; (cf: SZJTQ v Minister for Immigration (2008) 172 FCR 563): "It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker." 85 Here, acceptance of the Minister's argument would lead to a strange result. The Tribunal stands in the Minister's shoes. After a review of his decision has been initiated, the Minister can receive knowledge of material personal to the visa applicant, actually or constructively, that may have a direct bearing on the assessment of his or her claims. While the Minister would be bound to consider that material were he the decision-maker, his argument entailed that he need not make this new, relevant material available to the Tribunal. And, here the Minister contended that, if he did not pass this material onto the Tribunal, its decision could not be impugned merely because it was made in ignorance of the material in the STARTTS report. 86 There is no suggestion that, here, the Minister, the Secretary or the Department failed to act in good faith. Rather, the likelihood is that the potential significance of the STARTTS report to the appellant's case in the Tribunal was overlooked. Nonetheless, the Minister, whose exercise of power was the subject of review in the Tribunal, now held material that had he still been the decision-maker, was credible, relevant and significant to the decision. His failure to convey it to the Tribunal, allowed it to make its decision on the review in ignorance of material the primary decision-maker had come to hold and had not passed on to the reviewing decision-maker. 87 The question here is whether the Minister's or the Secretary's failure to give the STARTTS report to the Tribunal after the Minister had received it, had the effect of creating procedural unfairness in the Tribunal's processes so as to cause it constructively to have failed to exercise its jurisdiction. The Minister argued that by reason of the decisions in WAGP v Minister for Immigration (2006) 151 FCR 413 and Muin 190 ALR 601 this Court could not so find. Neither decision has that effect as a binding precedent, although each contain dicta in support of the Minister's position. 88 First, in Muin 190 ALR at 677 the orders of the High Court declined to answer question 2 as to whether there had been a failure to comply with s 418(3). Thus, what was said about that section in the context of the then significantly different form of Pt 7 of the Act at the time of the Tribunal's decision from its current form was obiter dicta and not part of the ratio decidendi. While the opinion of Moore, North and Mansfield JJ in WAGP 151 FCR 413 as to the operation of s 418(3) in the, again, different form of Pt 7 was part of the ratio in that case, it is not a binding authority on the construction of that section as it operated in the context of Pt 7 in the form it had on 17 March 2010. That is because of what McHugh, Gummow and Heydon JJ explained in McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 at 661 [40], namely: "During the course of oral argument in this appeal, there was some debate as to whether, in order for the appellant to prevail, it was required that Wynyard Investments be overruled. However, this is a false issue. Wynyard Investments decided that a particular form of words in s 4(2) of the Division of Functions Act had a particular meaning: it is not authority that the reasoning process that commended itself to the majority when construing s 4(2) must dictate the construction of other legislation. It would be an error to treat what was said in construing one statute as necessarily controlling the construction of another; the judicial task in statutory construction differs from that in distilling the common law from past decisions (See Ogden Industries Pty Ltd v Lucas [1970] AC 113 at 127; Brennan v Comcare (1994) 50 FCR 555 at 572.)" (emphasis added) 89 However, as their Honours emphasised, this did not result in the Court being able to ignore that reasoning or, borrowing from what Gibbs J had once said, "to arrive at [its] own judgment as though the pages of the law reports were blank": McNamara 221 CLR at 661 [42] citing from Queensland v The Commonwealth (1977) 139 CLR 585 at 599. 90 The Tribunal operates in an inquisitorial not adversarial framework under Pt 7 of the Act. Aside from s 418, the Minister, the Secretary and the Department do not owe any statutory duties to provide information or material to the Tribunal for the purposes of it exercising its function of review of an individual's application for review under Pt 7. Unlike the position in SZFDE 232 CLR at 206-207 [49]-[53], the appellant here was unable to identify a deliberate act, such as the fraud of the migration agent there, that stultified the legislative scheme to afford him natural justice or procedural fairness. Rather, the appellant's case turned on the failure or omission of the Minister or the Secretary to do something that the express words of the Act do not appear to have required be done; namely, for the Minister or the Secretary to provide the Tribunal with a document that came into existence after, and that played no part in, the decision the subject of the review. 91 Whatever may be the consequence of a failure by the Secretary fully to comply with s 418(3), that provision appears to be directed to ensuring that the Secretary provides the Tribunal with the relevant material that was before the decision-maker whose decision is being reviewed. In WAGP 151 FCR at 424-425 [62]-[65], Moore, North and Mansfield JJ held that a failure by the Secretary to provide a document to the Tribunal pursuant to s 418(3) that, in the event, would have been capable of corroborating the applicant's evidence to the Tribunal on a matter on which he was not accepted (see WAGP 151 FCR at 420-421 [38]-[40]) did not taint the Tribunal's decision with jurisdictional error: see too Applicant S1693/2003 v Refugee Review Tribunal [2004] FCA 1512 at [41] per French J. 92 Here, the immediate consequence of the omission by the Minister to provide the Tribunal with the STARTTS report was that it proceeded to hear and assess the appellant's evidence as if it were being given by a person whose mental processes were unimpaired by the circumstances and consequences of the claims he was advancing to it. Had the Tribunal been aware of the STARTTS report it may, but need not necessarily, have approached its assessment of the appellant's evidence differently; cf: Thirukkumar v Minister for Immigration [2002] FCAFC 268 at [10], [16]-[19] per Drummond J, [32]-[38] per Cooper and Finkelstein JJ; Minister for Immigration v SGLB (2004) 207 ALR 12 at 16-17 [19] per Gleeson CJ, 22 [44] per Gummow and Hayne JJ; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 64 [17] per Gleeson CJ, 70 [49], 71 [51]-[52] per McHugh and Gummow JJ, with whom Callinan J agreed. 93 The omission to forward the STARTTS report to the Tribunal was very unfortunate in the circumstances, but it did not stultify the review by the Tribunal of the appellant's application to it. Because its procedures were inquisitorial, the Tribunal was not obliged under the Act to locate or ascertain the existence of further relevant material that the Minister, the Secretary or the Department received after the original decision of the delegate was made. There may or may not be some policy reason why the Act does not require such subsequently relevant material, known to the Minister (cf: Peko-Wallsend 162 CLR at 45 per Mason J) actually or constructively, to be provided to the Tribunal so as to avoid the apparent injustice that has occurred here. But, in the end result there is no such obligation.

CONCLUSION 94 It follows that the appellant has not established that the Tribunal's decision was affected by a jurisdictional error by reason of the failure of any of the Minister, the Secretary or the Department to provide the STARTTS report to the Tribunal. The Minister may wish to give consideration to what, if any, remedy he can afford to the appellant for the unfortunate lapse in the administration of his matter when it was before the Tribunal. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.