VAF v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT MERKEL J: 48 I have had the opportunity of reading the reasons for judgment of Finn and Stone JJ and gratefully adopt their Honours' outline of the facts and issues raised by the present appeal. I agree, for the reasons their Honours have given, that the first ground of appeal must be rejected. I also agree, for the reasons their Honours have given, that the "behaviour" of the appellant after his arrival in Australia, which is outlined in [25] of their Honours' reasons, is to be characterised as "information" for the purposes of s 424A(1)(a) of the Migration Act 1958 (Cth) ("the Act") and that the primary judge misapplied the views expressed in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 ("Al Shamry") concerning the operation of s 424A(3) of the Act. 49 The view expressed in Al Shamry at 34 ([17]-[18]) that the word "applicant" in s 424A means "applicant for review by the Tribunal of a Ministerial decision" and that the word "application" means "the proceeding before the Tribunal" has been cited with approval (see for example SAAY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 393 at [33]). As I am not satisfied that that view is clearly wrong, I propose to apply it in the present appeal. I have, however, arrived at a different conclusion to that reached by their Honours as to the operation of s 424A(1) and I will endeavour to briefly state my reasons for the conclusion at which I have arrived. 50 The critical issue on the appeal is whether the information concerning the appellant's behaviour after his arrival in Australia was considered by the Refugee Review Tribunal ("the Tribunal") to be a "part of the reason" for its decision to affirm the delegate's decision to refuse to grant the appellant a protection visa. As has been pointed out by Finn and Stone JJ at [29] of their Honours' reasons, although the issue, which is to be viewed prospectively, is whether the Tribunal considered that the information in question would be the reason or a part of the reason for its decision, the question of compliance is to be judged retrospectively in light of the Tribunal's actual decision. Plainly, the determination of that issue requires careful consideration of the Tribunal's statement of its reasons for the decision it made. 51 The immediate or ultimate reason for the Tribunal's decision was that it was not satisfied that the appellant was a person to whom Australia owes protection obligations or, put another way, it was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason: see Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 ("Paul") at 428 [97]-[98] per Allsop J (with whom Heerey J agreed). However, the reason for that conclusion was, in turn, based on particular reasons. As Allsop J stated at 429 [99]: "Section 424A is intended to be directed to information being the reason or a part of the reason for that conclusion." 52 His Honour observed (at 428-429, [99]-[100]) that, in order to ascertain the reason or part of the reason for the decision, "some unbundling of the immediate reason for the affirmation is required" and that "[i]n any given circumstance it may not be straightforward to identify from an expressed reasoning process whether information was the reason or a part of the reason for affirmation". Allsop J (at 429 [104]) construed s 424A in the light of its purpose of "ensuring that the claimant is fairly informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it." 53 In Al Shamry it was accepted that information that was one of the reasons for rejecting an applicant's credibility can be part of the reason for the decision to affirm the delegate's decision. In Paul Allsop J also accepted that the reasons underlying a credibility finding may constitute part of the reason for such a decision. His Honour stated (at 431 [114]) that: "…one needs to see from the decision what was the reason or a part of the reason for affirmation and, in the light of the reasoning process which in fact drew the Tribunal to that conclusion, assess what, in fairness, the claimant… needed to be appraised of in order that he or she could deal with issues that were of a relevance to the review as determined by the phrase 'would be the reason or a part of the reason'." [Emphasis in the original] and at 432 [116]: "The question as to whether information would be the reason or a part of the reason for affirmation is ultimately decided, in my view, by whether it can be characterised as sufficiently important to the reasoning process in the rejection of the appellant's claims, for fairness to warrant that the applicant be told if it so that he or she can understand and be able to meet the integers or elements that make up the Tribunal's reasons or conclusion thus far reached (hence 'would') for finding adversely to the applicant." 54 His Honour, by taking the approach set out above, eschewed a narrow view of what would constitute the reason or part of the reason for a decision to affirm the decision of the delegate. His Honour's observations may provide guidance for assessing whether particular information was part of the reason for the Tribunal's decision where, as was the case in Paul, it may not be straightforward to identify from the reasons themselves whether the information in question was part of the reason for the Tribunal's decision. 55 However, his Honour should not be regarded as having intended to lay down an exhaustive test for the circumstances in which s 424A is to apply. If his Honour's observations at 432 ([116]) were said to lay down such a test, that test would become a substitute for the words the legislature has used in the section itself. Thus in a case, of which Al Shamry is an example, where it is clear on the face of the reasons expressed by the Tribunal that the information in question was a part of the reason for the decision, Allsop J's observations cannot be employed to arrive at a different conclusion because to do so would be to impermissibly import into s 424A an additional criterion of "sufficient importance". On the same basis it would be impermissible to impose an additional criterion that the information must be an "integral" or "essential" reason for the decision in order for s 424A to apply. 56 As explained above, the ultimate question for the Tribunal in the present matter was whether it was satisfied that Australia owes protection obligations to the appellant. That question required consideration of whether the appellant has a fear of persecution for a Convention reason and whether that fear is well-founded. As was pointed out by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575, the determination of the latter question usually requires speculation about what would happen to the applicant in the future, based largely on what has happened in the past: "Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events." 57 Whether the Tribunal accepted the appellant's version of the past events on which his fear of persecution is based was critical to the outcome of his claim. In the present case the appellant's account of past events was not believed, and as a consequence the Tribunal concluded that the appellant does not have a well-founded fear of persecution. The adverse finding on credibility was the primary reason for the Tribunal's affirmation of the delegate's decision. 58 It must follow that the question arising on the present appeal is whether the information concerning the appellant's behaviour after his arrival in Australia was stated by the Tribunal to be a reason for the adverse general finding it made against him in relation to his credit. If the Tribunal did make such a statement it would follow that that information was considered by the Tribunal to be part of the reason for its decision. In such circumstances there would be no role for questioning whether the information was: · a more, or a less, significant part of the reason for its decision; · an integral or essential part of the reason for the decision; or · "sufficiently important" to the reasoning process to warrant that s 424A apply. 59 As I later explain, those questions might be relevant to the exercise of the Court's discretion to decline to grant relief if a breach of s 424A has occurred. 60 There is an additional difficulty with the Court, in ascertaining whether information is a part of the reason for a decision, engaging in an evaluation of the relative importance of the information to the reasoning process. Information that has been stated to be part of the reason for the decision might appear to be only a minor part of the reasoning, but had it been put to the applicant that information might have elicited a response which may have had an impact on the Tribunal's decision. Thus, there is an inherent problem in assessing the importance of the information in question without having the response the applicant would have given to it had he or she been apprised of the information and of its significance. As was observed by Megarry J in John v Rees at [1970] 1 Ch 345 at 402 "the path of the law is strewn with examples … of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change." 61 The approach set out above gives effect to the purpose of s 424A, which was stated in Al Shamry at 40 [39] to reflect a fundamental common law principle of natural justice (albeit in a restricted form) namely, "that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise." 62 As has been pointed out by Finn and Stone JJ at [34] the Tribunal's "Findings and Reasons" extend over 22 pages and deal in detail with the numerous matters and events relied upon by the appellant. Early in its "Findings and Reasons" the Tribunal referred to the appellant's conduct in not asking for help from "contacts" in Melbourne and in delaying making an application for a protection visa. The Tribunal considered that this was not the behaviour of a person who fears persecution in his country of nationality. In that regard it stated: "The [appellant's] attendance at the conference, and his meeting with the Trades and Labour Council provided him with contacts who could have been of assistance to him if he were fleeing Pakistan to escape persecution or death as claimed. He did not seek such assistance. The [appellant] arrived in Australia on a valid passport issued in his own name. Despite his claim to have fled Pakistan, he did not apply for a protection visa upon arrival in Australia, but did so only after he had attended the conference for which timely arrangements had been made, and only after his temporary business visa had expired. The Tribunal finds this behaviour of significance as it is not the behaviour of a person who fears persecution in his country of citizenship." 63 The Tribunal identified the factors and information that led it to reject the appellant's account of events. It made it clear that its credit finding against the appellant was arrived at on the basis of all of the matters stated to have been relied upon by it in reaching that finding. For example, the Tribunal stated: "The Tribunal finds that the [appellant] is not credible for all the above reasons. In summary, the Tribunal finds that the does not have a well-founded fear of persecution on the above bases." (p 31) "For all the above reasons the Tribunal does not accept that the [appellant] made arrangements to come to Australia as a result of political difficulties or a threat to his life." (p 35) "Given the implausibility of much of the [appellant's] evidence, the inconsistencies, and the preparedness of the [appellant] to vary his evidence to suit the circumstances as they arose, the Tribunal finds for these and all the above reasons that the [appellant] is not credible." (p 42) "Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol" (p 42) 64 In each of the above passages, one of the "reasons" referred to was the appellant's behaviour after entering Australia, which it stated was "significant". Plainly, that behaviour bore directly upon the subjective aspect of whether the appellant had a well-founded fear of persecution. Further, the behaviour, together with all of the other factors and information relied upon by the Tribunal, led it to reject the appellant's credit and hence his claim to have a well-founded fear of persecution. 65 The above passages from the Tribunal's decision, when coupled with the statement by the Tribunal that it found the appellant's post-arrival behaviour "of significance as it is not the behaviour of a person who fears persecution in his country of citizenship", has led me to conclude that the Tribunal considered that that behaviour was part of the reason for its decision. That is not a surprising outcome as the credit findings identified in the above passages are general findings as to credit and it appears that, in making those findings, the Tribunal intended to rely cumulatively upon all of the particular credit findings it made that were adverse to the appellant's credit. Accordingly, the appellant's post-arrival behaviour was a part of the reason for the Tribunal's decision and was information that was required to be disclosed, but was not disclosed, to the appellant in accordance with s 424A(1). 66 It then falls to be determined whether the breach of s 424A(1) gave rise to a jurisdictional error. If so, the Tribunal's decision will not be a privative clause decision and review of it is not prevented by s 474 of the Act: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. The cases demonstrate that not every breach of s 424A will result in a jurisdictional error and therefore invalidity of the decision such that s 474 does not apply to it. For example, in cases where the substance of the information was put to an applicant by the Tribunal, but not in the form mandated by s 424A(2), it has been held that no jurisdictional error occurred: see NAHV of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102; NANF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 292. However, in the present case, the breach of s 424A does not relate to the form in which the information in question was put to the appellant. Rather, the breach occurred because the information was not put to the appellant at all. 67 In Minister for Immigration and Multicultural and Indigenous Affairs v Awan ("Awan") (2003) 75 ALD 386 I considered the consequences of a failure by the Migration Review Tribunal to comply with s 359A(1) of the Act, which imposes requirements equivalent to those imposed on the Tribunal under s 424A. At 409 ([101]) I stated: "As explained above, s 359A(1) enacts an important aspect of the rules of natural justice, albeit in a somewhat more restricted form. For example, the rules of natural justice require disclosure of adverse information that could, rather than would, be prejudicial: see Kanda v Government of the Federation of Malaya [1962] AC 322 at 337 and Kioa v West (1985) 159 CLR 550 at 603, 629, 634; 62 ALR 321 at 361, 380 and 384. The observations to which I have referred in Aala, Miah and Plaintiff S157/2002; the more restricted form of s 359A(1); its mandatory nature and its central importance in ensuring a fair review by the tribunal; afford strong reasons for not construing s 474 as manifesting a legislative intent that a decision made in contravention of the requirements of s 359A(1) is validated by s 474. The above matters have led me to conclude that s 474 does not manifest a legislative intent that a decision made without compliance with s 359A(1), irrespective of how unfair that may have been, is nonetheless a valid decision." [Emphasis in the original] 68 Marshall J (at 399 ([61])) agreed with the above reasoning. See also VEAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 at [46] - [47]. 69 For the above reasons the Tribunal's failure to comply with s 424A(1) in the present case constituted a jurisdictional error resulting in the invalidity of the decision with the consequence that it is not a privative clause decision and may be reviewed by the Court. 70 There remains only the question of whether the Court should, as a matter of discretion, refuse relief. In Awan (at 410 [106]) I discussed the principles which govern the exercise of the discretion: "Generally, relief for a failure to comply with a requirement of procedural fairness is withheld only where the court concludes that compliance with the requirement 'could have made no difference': see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; 67 ALR 21 at 23-4. As was noted in Bax v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 55; BC200301216 at [18] such an outcome will be a rarity and it is no easy task to convince a court to adopt it. While the above observations were made in relation to refusal of relief where there has been a failure to comply with the common law requirements in respect of procedural fairness I see no reason for not applying them to the failure to comply with s 359A(1) that has occurred in the present case." 71 As explained above, there were many factors which, cumulatively, led the Tribunal to make an adverse finding in relation to the appellant's credit. Although the information in question may be viewed as one of the less significant of those factors the Tribunal did not itself state which factors were more or less significant in persuading it to reject the appellant's credibility. Thus, as in Awan and Al Shamry, it cannot be said that, had the information in question been provided to the appellant and had the appellant thereby been afforded an opportunity to provide a response to it, it "could have made no difference" to the outcome of the case before the Tribunal. 72 Accordingly, the appeal should be allowed with costs, the decision of the Tribunal should be set aside and the matter remitted to a differently constituted Tribunal. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

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