SZTGS v Minister for Immigration and Border Protection

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

JUDGE: LOGAN J DATE: 22 AUGUST 2014 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of the Republic of India. On 26 July 2012, he lodged with the department (now known as the Department of Immigration and Border Protection) an application under the Migration Act 1958 (Cth) (the Act) for that class of visa known as a Protection (Class XA) visa. On 12 December 2012, a delegate of the Minister (now known as the Minister for Immigration and Border Protection) administering that department refused that application. The Minister is the first respondent to the appeal. 2 As was his right under the Act, the appellant applied for a review on the merits of the Minister's delegate's decision by the Refugee Review Tribunal (tribunal). On 16 August 2013, for reasons given that day, the tribunal decided to affirm the Minister's delegate's decision. The tribunal was also a respondent to the appeal. Quite properly, the tribunal did not seek to be heard as a contradictor. 3 The appellant then sought the judicial review of the tribunal's decision by the Federal Circuit Court of Australia (Federal Circuit Court). On 19 February 2014, for reasons delivered ex tempore that day, that court (Nicholls FCJ) summarily dismissed the appellant's judicial review application. The dismissal was made on the basis that the applicant did not have an arguable case in terms of r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). 4 The manner of disposal of the judicial review application by the Federal Circuit Court meant that the appellant did not have an appeal as of right against that court's judgment: see s 24(1A) Federal Court of Australia Act 1976 (Cth). The appellant was though disposed to challenge the order of dismissal. He therefore applied for a grant of leave to appeal. 5 The application for leave to appeal came before me in the May sittings of the Full Court. Through no fault of his own, the appellant did not appear at the time appointed for the hearing of his application but did appear before the Court later that day in circumstances related in the reasons for judgment which I delivered for adjourning that day his application for hearing to a date to be fixed: SZTGS v Minister for Immigration and Border Protection [2014] FCA 551. In the result, his application for leave was able to be heard by another judge (Gleeson J) later that month. On 30 June 2014, the appellant was granted leave to appeal: SZTGS v Minister for Immigration and Border Protection [2014] FCA 676. 6 In granting leave to appeal, her Honour directed that a referral certificate be issued pursuant to r 4.12 of the Federal Court Rules 2011 (Cth) (Rules). That rule is directed to the provision of legal assistance to parties under a Pro Bono scheme. In the result, Ms L Andelman of Counsel came to undertake the role of providing legal assistance to the appellant pursuant to such a referral. In so doing, she has much assisted the administration of justice. 7 In the way of things, the obtaining of legal assistance pursuant to the referral took time. Further, as I observed personally in May this year, the appellant has only a very limited command of English. Also in the way of things, the result was that the notice of appeal was not able to be filed within the time ordinarily contemplated by the Rules. It proved necessary for the appellant to seek an extension of time within which to file the notice of appeal. 8 The seeking of this extension was resisted by the Minister even though it was conceded, as it had to be, that, in deciding whether to extend time, it was necessary to consider the merits of the proposed appeal and even though a judge of this Court had been disposed to grant leave to appeal. I mean no disrespect to Ms Andelman (who certified the notice of appeal for the purposes of s 486I of the Act) in observing that the notice of appeal is not a model of perfection but by no means is it incomprehensible. The Minister pointed to no particular prejudice occasioned by the non-observance of the time limit. The Minister has no private interest in the outcome. Further, the time which would be required to consider the merits for the purpose of deciding whether to grant the requisite extension for the filing of the notice of appeal was no less than it would take to consider the merits of the appeal if the extension were granted. 9 It is also to be remembered that the occasion for the seeking of this class of visa is an assertion of a well-founded fear of a certain kind of persecution and, in the case of this appellant, an associated assertion that, if returned to India, that persecution will sound in his serious injury, or death. 10 Taking all of these considerations into account, I was left with the distinct impression that the active opposition to the grant of the required extension was the result of a failure on the part of the Minister and those advising him fully to assimilate what is entailed in the "old-fashioned traditional, and almost instinctive, standard of fair play" to which Griffith CJ referred in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333 at 342 in relation to the conduct of the Crown's legal business. Sir Samuel Griffith's remarks were directed to a dealing between the Crown and a subject but, for the reason given, they are no less relevant to a proceeding in this Court between one of the Crown's Ministers and an applicant for this class of visa. The Legal Services Directions issued by the Attorney-General under s 55ZF of the Judiciary Act 1903 (Cth) (Judiciary Act) confirm rather than create an expectation as to the conduct of the Crown's legal business. 11 If an applicant for this class of visa is, as a consequence of the successive exercise of executive and judicial powers of the Commonwealth, to be denied a visa of this class and returned to his or her country of former habitual residence, it is only basic fairness that the occasion for that be found in a disposal of any challenge on its substantive merits, rather than in an explained procedural lapse of no moment. 12 Quite apart from the particular obligations which fall upon the Crown, all parties in civil proceedings in this Court are obliged to act consistently with what s 37M of the Judiciary Act describes as the "overarching purpose" of the civil practice and procedure provisions: see s 37N. Here, too, this express provision confirms rather than creates obligations on the part of parties and their legal advisers. 13 That is not to say that procedural lapses on the part of disappointed visa applicants or those representing them can never be of any consequence. Some can occasion genuine prejudice to the Minister, who may thereby, for example, be left without a reasonable time to respond to the other party's case: see VCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 141 at [60]. Each and any lapse must be judged according to its consequence. Here, the basis upon which leave to appeal had been granted was identified with precision by the Court. Read fairly, it was this basis that the appellant sought to take up in his notice of appeal. Though the subject was expressly raised by me at the hearing, the Minister did not by his solicitors (Sparke Helmore - Ms SA Given) request an adjournment on the basis of inability to meet the appeal on the merits. 14 In this case, unnecessary time was taken at the commencement of proceedings in dealing with a procedural objection which, in the circumstances, ought to have been appreciated by the Minister and those advising him as inappropriate. I granted the requisite extension and heard the appeal instanter. 15 Ground 2 of the notice of appeal, which alleges that the Federal Circuit Court erred by failing to find that the Tribunal had failed to exercise its jurisdiction, is the critical ground. As was made plain in the course of submissions, the somewhat cryptic reference by way of "particulars" in respect of this ground in the notice of appeal is a reference to a requirement, flowing from s 430 of the Act, that the tribunal give reasons for its decision. The point put for the appellant is that the tribunal does not exercise its jurisdiction if it fails to comply with this requirement and, in this case, so it was submitted, it did not. 16 It also became plain in the course of submissions, that the complaint in ground 1 of the notice of appeal with respect to a failure on the part of the court below to hold that the tribunal had failed to make a finding in respect of the appellant's claim for a protection visa or an integer of that claim, was really a complaint of the same nature as ground 2. The allegation was that there has been no exposure of the tribunal's reasoning process in relation to why it was that the tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations for the purposes of either s 36(2)(a) or s 36(2)(aa) of the Act. 17 The third ground of appeal, which alleges a misconstruction on the part of the court below of the appellant's grounds of review, will be sufficiently dealt with by focusing upon one of those grounds of review, which was an alleged failure on the part of the tribunal to consider whether the appellant was at risk of harm and able to access effective state protection and an associated alleged influence in that consideration by the tribunal not receiving evidence from the appellant at the hearing it conducted. 18 At the heart of the appellant's challenge is the following paragraph in the tribunal's reasons: 21. The applicant claims that he has been threatened and harmed in the past, and that he will be harmed in the future. However, the Tribunal is not satisfied, on the evidence before it, that his claims are true. On the evidence before it, the Tribunal is not satisfied as to: the timing, nature and details of the applicant's involvement with the Muslim girl, that she became pregnant, the discovery of the relationship, the consequences for the applicant including actions taken by the imam, her family and his family, the detail of and cause of the claimed riots; that he left India for Australia because he was in fear; that he was in hiding at any time in India; his attempt to access state protection and that he could not access state protection; that anyone has any desire to threaten or harm him in India now or in the future; and that he could not relocate in India. In this paragraph and elsewhere in the tribunal's reasons, there is an accurate recitation by the tribunal of the integers of the applicant's claim for a protection visa. As might be inferred from the quoted paragraph, the claim made by the applicant, who is not a Muslim, commenced with an assertion on his part of befriending and then impregnating a Muslim woman which he said had a sequel that left him with a fear of persecution as described by the tribunal. A jurisdictional error, and a related failure on the part of the court below uphold the same, is not in this case to be found in a failure on the part of the tribunal to identify the integers of the applicant's claim. 19 Lest it be thought otherwise, it should be recorded that the appellant's challenge was, as it had to be, made on the footing that this quoted paragraph was not to be read in isolation but in the context of the reasons as a whole and, further, that the tribunal's reasons were not to be read narrowly and with an eye for error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282. 20 What was submitted for the appellant was that the tribunal had nowhere specified why it was that it was not satisfied of the matters set out in paragraph 21 of its reasons. It was submitted that s 430 of the Act required the tribunal to do this. It was further submitted that, unless the tribunal did this, it did not discharge its review function according to law and thus committed jurisdictional error. 21 By s 430 of the Act, it is provided, materially: Written statement of decision (1) Where the Tribunal makes its decision on a review, the Tribunal must make a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based; and (e) unless the decision is given orally--records the day and time the statement is made; and (f) if the decision is given orally--records the day and time the decision is given orally. 22 To give context to the tribunal's reasons and the submissions made by the parties, it is necessary to give further detail of the procedural history of the appellant's visa application after its lodgement with the department. 23 The appellant detailed his claim for a protection visa on the application which he lodged with the department. No document accompanied that application other than a copy of the personal identification and visa pages from his Indian passport. 24 After lodging that application, the applicant was invited to and did attend an interview with an officer of the department concerning his claim. He did not produce at that interview any documents to support any integer of his claim. 25 In providing the appellant with reasons for why he had rejected the visa application, the Minister's delegate accurately identified the integers of the claim and made reference both to generic country information as well as to the answers given by the appellant at the interview. In his reasons, the delegate made detailed reference to the confusion which he found in the account given at interview by the appellant and inconsistencies as between that account and the claim as set out in the visa application. These formed the basis upon which the delegate stated in his reasons that he was neither satisfied that the appellant was a person to whom Australia had a protection obligation under the Refugees Convention 1951, as amended by the 1967 Protocol nor satisfied that there was a real risk of significant harm to the appellant if he were removed from Australia to India. All in all, the delegate provided the appellant with reasons which rationally explained why he did not hold the satisfaction specified in either s 36(2)(a) or s 36(2)(aa) of the Act and thus why it was that his application had been refused. 26 After the appellant lodged his application for the review of the Minister's delegate's decision, the tribunal, by a letter dated 14 June 2013, advised him that "it had considered the material before it but is unable to make a favourable decision on this information alone". The letter contained an invitation to the appellant to attend a hearing on 16 August 2013. In sending this letter, the tribunal sought to discharge the requirement that fell on it under s 425 of the Act. The appellant did not submit that the tribunal did not comply with this requirement. 27 The appellant responded to this invitation by stating that he would take part in the scheduled hearing. He did not, however, attend before the tribunal on 16 August 2013 at the time and place appointed. It was against this background that the tribunal came to decide the appellant's review application. Section 426A of the Act entitled but did not oblige the tribunal to "make a decision on the review without taking any further action to allow or enable the applicant to appear before it". The appellant did not submit that the tribunal made any error by deciding his application, as opposed to rescheduling the hearing. 28 In NAKD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 321 at [6], Hill J stated: There is no legal requirement that evidence given by an applicant can not be accepted unless corroborated. It is true that the Tribunal will not be required to accept that evidence uncritically. The Tribunal is not required to accept what an applicant says. But it is also true that the Tribunal is not required to reject evidence uncritically. 29 This statement was made with reference to a case where a visa applicant had attended and given evidence at a hearing. I respectfully agree with it. It is no less true where, as a result of a failure to attend at a hearing, the tribunal, as was the case here, is left with what the visa applicant set out in the application and such supplementation, if any, of that as has occurred prior to the hearing (for example, a record of a post-lodgement interview with a departmental officer). The statement is, for that matter, also true of the position when the Minister or his delegate comes initially to determine a visa application. There is no obligation to accept and no obligation to reject an application just on the basis of the claim as made in the application by a visa applicant. 30 What the tribunal was obliged to do was to make a written statement that complied with s 430 of the Act. 31 In this case, there is nowhere to be found in the tribunal's reasons an explanation as to why it was not satisfied, on the evidence before it, of each, or even any, of the matters referred to in paragraph 21 of its reasons. In turn, that meant that the appellant was left in a position where he was bereft of an explanation as to why it was that the tribunal was not satisfied in terms of either s 36(2)(a) or, as the case may be, s 36(2)(aa) of the Act. 32 It was put on behalf of the Minister that such an explanation was to be found by reading paragraph 21 in conjunction with paragraphs 17 and 18 of the tribunal's reasons and in the context of the events which had transpired, in particular, the appellant's failure to appear at the hearing which the tribunal had offered. Paragraph 17 of the reasons refers to the appellant's lodgement of his visa application and to his not having provided additional information or claims to the tribunal. Paragraph 18 recites the dispatch to the appellant of an invitation to attend at a hearing, his request to take up that invitation, his failure to attend at the hearing and a decision on the part of the tribunal under s 426A to proceed to make its decision. The Minister's submission was that this decision and these reasons evidenced "an orthodox s 426A procedure" on the part of the tribunal. 33 That the tribunal chose to proceed under s 426A of the Act so as to decide the review application without offering the appellant a further hearing is, in itself, unexceptional. What is not or at least should not be regarded as "orthodox" about what the tribunal did is to provide no explanation, rational or otherwise, for its absence of satisfaction. 34 There was no formal onus of proof in the review which the tribunal conducted. Even to conceive of the administrative review process as one to which an onus applied would be to misconceive the nature of that process. It was for the appellant to support his application as he chose. It was for the tribunal to consider afresh the material it had before it, including that provided by the appellant and to decide for itself what was the correct or preferable decision in respect of the application made by the appellant for a protection visa. In so doing, the tribunal was obliged to comply with particular requirements specified by the Act. One of these was the requirement found in s 430. The requirements of that section apply just as much to a circumstance where an applicant for review fails to appear at a hearing offered by the tribunal and the tribunal decides, as s 426A permits, to proceed to decide the review application as they do to a circumstance where the applicant for review attends and gives evidence at a hearing. Of course, the particular reasons which a tribunal comes to give may be influenced by a failure to appear but the obligation to furnish reasons compliant with that section is pervasive. But just because a person has failed to appear and the tribunal has decided under s 426A to proceed to determine the review application is not, in itself, explanatory of why the tribunal is not satisfied that the integers of the claim are made out such that it is not satisfied that the applicant for review is entitled to a visa. 35 What are the requirements imposed by s 430 in relation to the tribunal's reasons? 36 Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362 (SZLSP) was a case decided by the Full Court after, and in light of, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. I am bound by judgments of the Full Court, as is the Federal Circuit Court. Having regard to SZLSP, a written statement will not comply with s 430 if the conclusion as to absence of satisfaction is not grounded in a reference to material before the tribunal by reference to which a rational decision-maker could have reached that conclusion (per Kenny J at [72]) or, put another way but to no different effect, if there is no "identified basis" for that absence of satisfaction (per Rares J at [94]). 37 Since SZLSP, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li) has been determined by the High Court. That case concerned the exercise of a discretionary power under the Act, not the requirement under s 430 to provide a written statement. Further, the granting of this particular class of visa is materially dependent upon a state of satisfaction, not the exercise of a discretionary power. Even so, a purpose of the requirement in s 430 for a written statement and its provision to an applicant for merits review by the tribunal is to expose the tribunal's reasons for the decision it has made. An alternative way of approaching the present case may well be that the tribunal's reasons did not provide a reasonable basis for the tribunal's absence of satisfaction. That would expose an error of the kind described by Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119. It would be consistent with the approach in Li to the exercise of a discretionary power also to treat unreasonableness in respect of administrative satisfaction as a jurisdictional error. 38 It is, of course, for the appellant to demonstrate jurisdictional error. He has done so by reference to the reasons on their face. One looks to the tribunal's reasons for "what is expressed and what is not": Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547 at [39]. 39 The riposte made by the Minister invites speculation as to what lay behind the tribunal's absence of satisfaction. That is something a court must not do. 40 It does not at all axiomatically follow that the tribunal shared the same reservations for the same reasons as the Minister's delegate about the claim made by the appellant. So to assume would be inconsistent with the tribunal's role of independent merits review. That is not to say that, approaching the matter afresh, the tribunal might not entertain a like reservation in which it was fortified by a failure on the part of an applicant for review to give evidence at a hearing. It is just that it is not appropriate to speculate. It is for the tribunal itself to give its reasons. Reading them as a whole, including paragraphs 17 and 18, this is something the tribunal has not done. 41 The learned primary judge faced the considerable difficulty, almost invariable in cases of this kind where the applicant is not only a layman but also not literate in English, of justly determining the judicial review application by reference to the grounds pleaded. The first ground of review before the Federal Circuit Court was treated, very fairly to the appellant, as alleging that the tribunal had failed to exercise the review jurisdiction consigned to it. In summarily disposing of this ground the learned primary judge concluded (at paragraph 26), inter alios, that the tribunal had explained why it could not reach the level of satisfaction required by the Act and that no legal error was revealed in those circumstances. For the reasons given, I respectfully differ from that conclusion. If, contrary to my view, that entails reading too much into the ground of review before the court below, I would have been prepared to grant leave to the appellant nonetheless to raise a failure to comply with s 430 of the Act as a ground of appeal. The error concerned is one which is patent on the face of the reasons and there is no suggestion that those in evidence are not the written statement made by the tribunal for the purposes of that section. 42 It follows that the tribunal has failed to discharge its duty according to law. The appeal must be allowed, the orders of the court below set aside and the matter remitted to the tribunal for the determination of the review application according to law. It will be a matter for the tribunal's principal member as to by whom the tribunal is constituted on that remission. The principal member will doubtless bear in mind the difficulties of perception that might perhaps attend the tribunal being constituted by the same member as before. 43 It will be necessary to hear the parties as to costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.