WAGP v Minister for Immigration and Multicultural and Indigenous Affairs

Federal Court of Australia (Full Court)|2006-06-30|Before: Mansfield JJ

introduction 1 There is a long history to this appeal. Ultimately, it turns upon whether the Refugee Review Tribunal committed jurisdictional error in rejecting the appellant's claims to be an Iraqi citizen. The appeal should turn upon whether the learned judge at first instance erred in concluding that the Refugee Review Tribunal did not commit jurisdictional error, but certain of the grounds of appeal raised matters which were not argued at first instance. The first respondent did not object to them being argued. 2 The appellant arrived in Australia on 2 November 2000. On 2 June 2001 he applied for a protection visa under the Migration Act 1958 (Cth) (the Act). That application was refused by a delegate of the first respondent on 27 June 2001. The delegate's decision was affirmed by the Refugee Review Tribunal (the First Tribunal) on 22 August 2001. The appellant claimed in this Court that the decision of the First Tribunal was infected with jurisdictional error. However, his application was unsuccessful both at first instance on 29 April 2002, and on appeal to the Full Court on 13 September 2002. The appellant then applied for special leave to appeal to the High Court from the decision of the Full Court. On 25 May 2004 he discontinued his application for special leave to appeal to the High Court. 3 On the same day, 25 May 2004, the appellant applied in the High Court for an order nisi to quash the decision of the First Tribunal. That matter was remitted to this Court for hearing and determination. On 26 November 2004, the First Tribunal decision was quashed by a judge of this Court by consent. The application for review of the decision of the delegate of 27 June 2001 was remitted to the Refugee Review Tribunal to be heard and determined according to law. 4 On 1 February 2005 the Tribunal (the Second Tribunal) again affirmed the decision of the delegate of the first respondent of 27 June 2001. The appellant claimed that the decision of the Second Tribunal should also be quashed for jurisdictional error. At first instance, on 28 October 2005, a judge of the Court dismissed that application. This is an appeal from that decision. 5 Shortly before the hearing of this appeal, the appellant sought leave to file and serve an Amended Application, together with an amended notice of appeal. At the commencement of the hearing, counsel for the appellant indicated that certain of the matters asserted in those documents were no longer pursued. He sought to delete certain of the paragraphs of those documents, and otherwise sought leave to amend the application and the notice of appeal in accordance with them. Counsel for the first respondent did not object to the proposed amendment. 6 In those circumstances, in our view, it is appropriate to order: (1) That the appellant have leave to amend the application filed on 8 March 2005 in matter No WAD 51 of 2005 by substituting the document entitled 'Minute of Proposed Substituted Application' filed on 8 May 2006 but excluding therefrom pars 22, 23 and 26;

(2) That the appellant have leave to amend the notice of appeal filed on 3 November 2005 by substituting the document entitled 'Minute of Proposed Substituted Notice of Appeal' filed on 8 May 2006 but excluding therefrom par 9. 7 For the reasons which appear below, in our view the appeal should be dismissed.

the claims 8 To explain why that is so, it is necessary to refer in a little detail to the nature of the claim and the way it was addressed by the Second Tribunal. While doing so we also identify the material, including the respective Tribunal's reasons, upon which the grounds of appeal are based. That is the course adopted by counsel for the appellant in his helpful submissions. 9 Put simply, the appellant claims that he is an Iraqi citizen, who had been expelled from Iraq in 1980 with his family when a young boy. He had then lived in Iran until 2000 when he came to Australia. He said he was no longer able to return to Iran because he was not a citizen of Iran and his green card had been cancelled. He feared returning to Iraq because he would be persecuted because of his perceived political beliefs (having been part of a family expelled from Iraq) and because of his religion. There was nothing to suggest that, if he were an Iranian citizen, he could not safely return and remain there. That was why the Second Tribunal described the central issue as being whether the appellant was in fact an Iraqi national or whether he was an Iranian national.

(a) The initial interview 10 The issue as to the appellant's nationality arose initially because of his record of interview upon his arrival in Australia. It took place on 14 November 2000. 11 At that time, the appellant is recorded as having said that he was an Iranian national of Persian ethnicity (rather than Iranian ethnicity). He is recorded as having said he was born in Khozestan in Iran. He said he had worked as a welder and later a turner in Iran. He had also served a period in the Iranian military service. He spoke Persian. He then claimed to fear returning to Iran because his life was in danger. He described how certain of his friends had left a bag with him, apparently perceived by the authorities to have some significant material in it. One of his friends fled to Iraq after problems with the Iranian government. He later returned to collect the bag some years later. The appellant's house was then raided by security forces and he was questioned. He decided to flee Iran because he was, apparently, being attributed with anti-regime political beliefs and was vulnerable to persecution.

(b) The protection visa 12 When the appellant lodged his application for a protection visa on 2 June 2001, his background (as reported by him) was quite different. 13 He then said he had been born in 1976 in Baghdad, and was a citizen of Iraq and a Shi'a Muslim. He did not have a right of residence in any other country, including Iran. He described how his family was forced to leave Iraq in 1980 because of their religion and fled to Iran where his father married a second wife who was an Iranian citizen. It is uncontentious that he then had ten years of education in Iran, was unemployed between about June 1989 and September 1991, and was self-employed from September 1991 until September 2000. The appellant claimed that his family, whilst in Iran, were issued with green cards, renewed on occasions. However, he said he did not have any rights in Iran and could not live a normal life there. He feared being deported to Iraq at any time. He therefore decided to leave Iran. He was able to acquire an Iraqi passport by payment of money and fled Iran illegally with the aid of a people smuggler. He transited in Abu Dhabi, where he was provided with a genuine Iranian passport into which his photograph was substituted, and arrived in Australia via Malaysia and Indonesia. He claimed that, because he and his family had been exiled from Iraq, under Iraqi law he would be hanged if he were to return there and that the then regime of Saddam Hussein would persecute him also by reason of his religion. He said he could not return to Iran because he is not a citizen of Iran and his green card had been cancelled. Whilst in Iran he said he had not been allowed to work legally and so worked casually in an illegal way as a labourer, street vendor and repairer. 14 At the time of his protection visa application, the appellant said he was uncertain what information he had given about his place of birth in his arrival interview, but recalled having given the story about looking after the bag of a friend and acknowledged that it was not true. He said he made it up because he was afraid of being deported to Iraq.

(c) The First Tribunal 15 At the hearing before the First Tribunal on 10 August 2001, the appellant again said that the story about the bag as the reason for his departure from Iran was not true. He

acknowledged having misled the interviewer at the arrival interview by saying he was born in Khozestan, Iran, because he was scared that he would then be sent back to Iraq if he said otherwise. However, he said that he was careful to avoid signing a paper saying what his nationality was and had argued with the interpreter as to what he should say in that regard. He did accept that he had orally said that his citizenship was Iranian, because he did not want to reveal his true nationality, but was not prepared to sign the document which inaccurately stated his nationality to be Iranian. He also told the First Tribunal that he had said that he was of Persian ethnicity, even though he was in fact an Arab, because he was scared of being returned to Iraq. He said he had fabricated the quite detailed information he had provided about his military service in Iran. He accepted that only Iranian citizens do military service in Iran. 16 The First Tribunal indicated to the appellant in the course of that hearing that she accepted that Iraqi Shi'ites who had been living in Iran may be subject to ill treatment if they entered or re-entered Iraq. Consequently, the First Tribunal member said then that the critical issue for determination was the nationality of the appellant. The then solicitor for the appellant agreed with that proposition. 17 The First Tribunal found that the appellant is a national of Iran. The appellant's claim to have left Iran because he feared persecution for some perceived political opinion being attributed to him relating to the bag was abandoned, so the First Tribunal did not accept that claim. Because the appellant was not accepted as being an Iraqi national in Iran, his claims to have been harassed or disadvantaged whilst in Iran were also rejected, as was his claim that he could be deported to Iraq if he were to return to Iran. That Tribunal concluded that the appellant did not have a well founded fear of Convention related persecution in his country of nationality, namely Iran. 18 The First Tribunal made specific findings about the appellant's claims concerning the document which he said he had declined to sign at the time of his arrival interview. It accepted that the appellant may have refused to sign a particular document confirming his nationality when he first arrived in Australia. The First Tribunal continued: '… I consider implausible his assertion that he refused to do this because he did not want to confirm he was a citizen of Iran. That assertion is not consistent with the fact that he apparently willingly signed the record of the first interview conducted with him with the assistance of an accredited interpreter, in which were contained his claims to have been an Iranian national, born in Iran. He was unable clearly to explain to me during the Tribunal hearing why he was willing to sign one document but not the other. I am unable to establish why he was unwilling to sign the Statutory Declaration in November 2000, but am not satisfied that it was because he was an Iraqi national.'

(d) The Second Tribunal 19 Prior to the hearing before the Second Tribunal, the appellant through his then migration agent and solicitor submitted a further statutory declaration addressing the circumstances of the arrival interview. It included the following: 'I do remember that I had an argument with the interpreter when she said I should sign something saying I had been born in Iran and was an Iranian citizen. She said I had told them at the beginning of the interview that I was from Iran so I should sign something saying that. I got very angry and the person interviewing me had to calm me down. As far as I understood at that time, I never signed a document that said I had been born in Iran and was an Iranian citizen.' The appellant did, however, in that statutory declaration acknowledge having said at the arrival interview that he was born in Iran and that he had undertaken military service in Iran. He said those things were untrue. He said he had said those things because other Iranians with whom he had travelled to Australia told him what to say after he arrived, as he would have a better chance of staying in Australia. He had picked up the knowledge about military service from discussions with them. He also accepted that he had said he had a welder's licence and a military discharge card. 20 The Second Tribunal also had regard to what the appellant acknowledged having said in his arrival interview as to his Iranian nationality, birth place, education and military service and employment. It also acknowledged he had said that he spoke only Persian, and his description of the bag incident being the reason why he had fled Iran. It noted the different version given in the application for a protection visa. 21 As the Second Tribunal noted, before the delegate of the first respondent, before the First Tribunal and at the Second Tribunal, the appellant maintained his claim to have been an Iraqi national who had been expelled from Iraq with his family in 1980. 22 At the hearing before the Second Tribunal on 18 January 2005, the appellant was again asked about the earlier version of events. He was invited to comment upon the fact that his explanation in his more recent statement that he had given the version of Iranian nationality on advice from other Iranians with whom he had travelled to Australia was a new or recent story. In the course of that evidence, the appellant claimed to the Second Tribunal that, towards the completion of the arrival interview, he had told the interpreter that he was an Iraqi national and that the interpreter was angry with him and asked why he had not said that he was an Iranian. The record continues: 'I put to the applicant that he had never previously stated that he said that he was an Iraqi at the arrival interview. He claimed that he wrote on the paper that he was Iraqi. I asked the applicant if there was any reason why he had never said that at the arrival interview he wrote that he was Iraqi. The applicant claimed that he said this at the delegate's interview and during the previous Tribunal hearing.' 23 The transcript of the First Tribunal hearing was before the Court. It does not report such an exchange of information, in particular a claim by the appellant that at the arrival interview he had said that he was ultimately an Iraqi national. The transcript of the delegate's interview was available, but counsel for the appellant did not seek to make use of it. 24 The Second Tribunal also identified the central issue as being whether the appellant is an Iranian national or an Iraqi national. 25 The Second Tribunal then recorded the information referred to above. In particular it noted that the appellant reiterated at the second Tribunal hearing that he had refused to sign the document stating that he was an Iranian national and that he later signed the same document stating that he was an Iraqi national. It noted what it described as a 'shift' in his evidence so that, for the first time, he appeared to be claiming that he had said at the end of his arrival interview that he was an Iraqi national and that he had written that on the form which he had refused to sign. 26 The Second Tribunal concluded that the document was the 'Effective Protection Statutory Declaration' dated 21 June 2001, provided shortly after the application for the protection visa. From that point the appellant consistently asserted that he was a national of Iraq. It continued: 'There is no evidence on the departmental file that the applicant had previously refused to sign this or any other form. However, I am prepared to accept that the applicant refused to sign an effective protection Statutory Declaration around the time of his arrival interview. That said, I do not accept that the applicant wrote that he was an Iraqi on this form. In my view, if the applicant had done so, he would have told the Tribunal as previously constituted. Furthermore, I do not accept that the applicant's refusal to sign a form stating that he was an Iranian national constitutes evidence that he is not an Iranian national. The applicant may well have refused to sign a form stating that he was an Iranian national because he thought that signing the form would facilitate his removal to Iran.' 27 The Second Tribunal then addressed the appellant's contentions as to why he had misled the department officials during his arrival interview. It considered that it was inherently unlikely that, if the appellant were an Iraqi who feared being returned to Iraq by the Iranian authorities and he feared being persecuted in Iraq, he would not have referred to those fears during his arrival interview. It had regard to the detailed information provided at the arrival interview. It had regard to the 'fairly elaborate story' to account for his reasons for leaving Iran and his fear of returning there. It had regard to the recent claim that he had said he was Iranian on the basis of advice from other Iranians with whom he travelled to Australia, and the time at which that claim was first advanced. It had regard to the tape recordings of both the departmental interview and the hearing before the First Tribunal. It concluded: 'Overall, I am led to conclude that the applicant has no satisfactory explanation for what was said during the arrival interview. I am of the view that the fact that the applicant has now advanced a completely new explanation for this demonstrates his propensity to say anything he thinks will help his case, with little regard for the truth.' 28 It referred to other examples in the appellant's evidence supporting that conclusion. It also had regard to his claims about how he had been treated during his earlier interviews so that he had not had the chance to answer questions fully and responsibly. The Second Tribunal, having listened to the recording of those interviews, regarded the appellant's claims as inconsistent with the content of those recordings. There were other features of his evidence to which it referred. It concluded: 'Given the applicant's overall lack of credibility, his failure to provide a cogent explanation for his claim to be an Iranian at the arrival interview and his unawareness that Iraqi Shi'as form the majority of the population of Iraq, I conclude that the applicant is not Iraqi, but an Iranian national. I am of the view that the applicant, having been initially excluded from making a protection visa application, claimed to be an Iraqi in an attempt to create for himself the profile of a refugee.' 29 Immediately before that conclusion, which led to the Second Tribunal not being satisfied that the appellant is a person to whom Australia has protection obligations so as to satisfy the criterion for a protection visa set out in s 36(2) of the Act, the Tribunal referred to the fact that the appellant had given evidence during the hearing through an Arabic interpreter. It said: 'The applicant did not claim that his demonstrated ability to speak Arabic constitutes evidence that he is an Iraqi national. However, given that the applicant has in the past used a Persian interpreter, I consider it relevant to make a finding in relation to this particular issue. There could be a number of explanations for the applicant's ability to speak Arabic. For example, during his arrival interview the applicant claimed that he was born in Khuzestan in Iran. Khuzestan is a province in the south of Iran with a large Arab population [reference given]. In my view, there would be nothing remarkable about an Iranian national born and raised in Khuzestan being ableto speak Arabic. Other explanations for the applicant's ability to speak Arabic are also open to speculation. In my view, the applicant's ability to speak Arabic does not constitute evidence that he is of Iraqi nationality. An ability to speak Arabic is not inconsistent with Iranian nationality.

the missing document is found, but not considered 30 The form to which the appellant referred is that which he declined to sign at the arrival interview. It was not available to the First Tribunal. That Tribunal made enquiries to see if it could be identified but it could not. It was not in the relevant file. 31 Subsequently, further searches by officers of the first respondent found a copy of a statutory declaration form in the Persian language relating to the appellant on the batch file of persons who arrived in Australia with the appellant. That was after the order by consent quashing the decision of the First Tribunal; it was not the reason for that order. Upon its location, the solicitor of the Australian Government Solicitor who became aware of it, advised that a copy of that statutory declaration should be placed on the appellant's file before it was sent to the Second Tribunal. 32 However, for reasons which do not appear, that document was not placed on the appellant's file before it was sent to the Second Tribunal. So it was not before the Second Tribunal. It is common ground that the person nominally responsible for having failed to have included that document in the material that was sent to the Second Tribunal was the Secretary. 33 The document is in Arabic and it appears to be dated 14 November 2000. On the front page, adjacent to certain of the Arabic script appears the following: 'Refused to sign' with a signature of the interviewing officer. A translation of that document records that the appellant said that he was of Iranian nationality and had nationality of no other country. That is the document which, apparently, he refused to sign. In the notes appearing at the bottom of that document, and under the signature of the interviewing officer appears the following:

'(Reason over page)' The back page of the document is simply not available and has apparently been destroyed.

CONSIDERATION OF Grounds of Appeal 34 There were four grounds of appeal argued by counsel for the appellant.

(a) The procedural fairness ground 35 The first was that the Tribunal committed jurisdictional error by denying procedural fairness to the appellant by proceeding to assess the appellant's creditworthiness without having regard to the missing document (subsequently identified) and by making the findings about his credit on the basis upon which it did. 36 It may be accepted that, in conducting the review, the Second Tribunal was obliged to accord procedural fairness to the appellant: see e.g. Muin v Refugee Review Tribunal (2002) 190 ALR 601; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 80 ALJR 228. 37 However, in this matter, there is nothing to indicate that the Tribunal itself was aware of the missing document at the time of its decision or prior to its decision. The evidence is to the contrary. 38 It was the Second Tribunal's function, in deciding the appellant's claim, to have regard to the evidence before it and to accord him procedural fairness, relevantly so that he was given the opportunity to be heard on the matters before the Tribunal. It is not suggested that the appellant was not given that opportunity. Indeed, counsel for the appellant acknowledged in the course of submissions that the Tribunal could not have done more than it did in terms of according the appellant procedural fairness. The 'glitch' (to use the word used in submissions) in the flow of information from the Secretary so that the missing document, after it had been located, was not sent to the Second Tribunal when making its decision was not something within its control or of which it was aware. 39 In those circumstances, in our view, no failure on its part to accord procedural fairness to the appellant has been demonstrated. 40 In any event, as the learned Judge at first instance pointed out, the Second Tribunal assumed in the appellant's favour that an examination of the available part of the missing document would show that he refused to sign it. In assessing the appellant's credit, the Second Tribunal was prepared to accept the appellant's claim that he had refused to sign a statutory declaration around the time of his arrival interview. It did not accept that he wrote that he was an Iraqi on that form. It had regard to the fact that he had refused to sign the form stating that he was an Iranian national, but did not consider that that amounted to evidence that he was not an Iranian national. Its view about his credibility was based on other material. It also had regard to uncontroverted facts that the appellant stated he was born in Iran and was of Persian ethnicity at the time of his arrival interview. It noted the variety of reasons why the appellant had said that he had reported at his arrival interview that he was an Iranian national, including the recent suggestion (made at the hearing of the Second Tribunal) that he had been advised to do that by Iranians who arrived in Australia with him. It had regard to the detailed information the appellant had provided on matters such as his employment history, his military service, and his supposed reasons for leaving Iran. It also had regard to the recording of that interview to reject his claim that he did not have the opportunity to answer information in the way in which he wished.

(b) The Section 424A(1) ground 41 The second ground of appeal was that the Tribunal had not complied with s 424A(1) of the Act. This does not appear to have been a matter raised before the learned Judge at first instance. 42 The appellant claimed that the Tribunal was obliged to give him a notice pursuant to s 424A of the Act that the fact that he was able to speak both Arabic and Persian was information which would be a reason or part of the reason for affirming the decision under review. The Tribunal did not do so. The way in which the Tribunal addressed that information is set out in [29] above. 43 In our judgment, the Tribunal was not obliged to give notice to the applicant under s 424A of the Act in respect of that information. That is simply because his ability to speak both languages was not, and would not have been, in the view of the Tribunal, a reason or part of the reason for affirming the decision that is under review. The Tribunal noted the fact of him speaking the two languages. It was not a matter brought to its attention as significant by the appellant or by his migration agent at the hearing. It nevertheless suggested why that fact might be of significance. It did not in any way bolster the conclusion about the appellant's credibility. It was not a fact which was used in any way adversely to him. The fact did not go to the assessment of the appellant's credibility which, for the reason explained above, was the critical element of the decision making process. 44 The observations of Weinberg J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [164], in our view, go to a different point.

(c) The misapplication of the law ground 45 The third ground of appeal involves the assertion that the Tribunal misdirected itself in law by failing to ask 'what if I am wrong?' and so failed to consider that the appellant's nationality might in fact be Iraqi. He contended that the Tribunal should have weighed its degree of satisfaction on the issue whether the appellant was an Iraqi or an Iranian, against the persecution the appellant would suffer if in fact he is an Iraqi and is forced to return to Iraq after being removed from Australia to Iran. 46 In our judgment, the submission in this matter is in reality no more than an attempt to have the Court re-visit the merits of the decision. In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, their Honours explained the correct approach in the following terms: 'It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution. In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.' 47 The same may be said of the Second Tribunal's conclusion in this matter. As its conclusions set out at [27]-[28] above indicated, the Second Tribunal expressed its conclusion as to the appellant's credibility with considerable confidence. It set out in detail the reasons for that conclusion. That led to the Second Tribunal being satisfied that the appellant was Iranian rather than Iraqi. In those circumstances, it did not err in assessing whether there is a real chance that he is of Iraqi nationality, and that therefore if he were to return to Iran he might be returned to Iraq where he might suffer persecution. It assessed that there was no real chance of that happening because it was satisfied that the appellant is Iranian. Its approach has not been demonstrated to involve any error of law.

(d) The failure to have regard to the missing second document 48 Finally on the appeal, the appellant argued that the Tribunal had erred by not having regard to the missing letter, in effect in breach of s 418(3) of the Act. This too was not a matter argued at first instance. 49 Section 418(3) provides: 'The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar [of the Tribunal] 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.' 50 Counsel for the first respondent accepted that the Secretary had failed to comply with s 418(3) by forwarding to the Tribunal the missing document (or at least so much of it as was able to be located) prior to the Second Tribunal hearing and its decision. 51 In our judgment, despite that failure, the Second Tribunal has not been shown to have committed jurisdictional error in reaching its decision. That is because the obligation under s 418(3) is not imposed upon the Refugee Review Tribunal, and the Secretary's failure to comply with that obligation does not vitiate the Tribunal's decision. 52 In Muin each of Gaudron, Gummow and Hayne JJ addressed the issue. Their Honours indicated that the failure of the Secretary to comply with that section did not involve any failure on the part of the Tribunal so as to commit jurisdictional error. The obligation is upon the Secretary. 53 Gaudron J said at [46], 'there is nothing in the Act to suggest that the secretary's compliance with s 418(3) is 'either a pre-condition to the tribunal's conduct of review proceedings or to its making of a decision on review'. Gaudron J was there referring to an argument that the Tribunal decision should be quashed for jurisdictional error. Her Honour then proceeded to address whether breach of s 418(3) by the Secretary might nevertheless entitle the then appellant to injunctive relief against the Secretary or the Commonwealth from acting on the Tribunal's decision. That is not an issue which arises on this appeal. 54 Gummow J at [173] said that it was unnecessary to decide the point, as did Hayne J at [251]. Gummow J at [179]-[180] observed that at least part of the reason for s 418(3) was to facilitate the Tribunal considering, as it was obliged to do so by s 424, whether to make a determination more favourable to the then appellant on the papers. His Honour at [183] said it was 'highly doubtful' that the failure of the Secretary 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'. Hayne J at [251] said that the want of compliance with s 418(3), or a failure to make a decision under s 424(1), would not entitle the then applicant to have the Tribunal decision quashed. At the time to which that decision relates, ss 424 and 425 were not in their present form, but we do not think the changes affect that reasoning.

55 Gleeson CJ, McHugh, Kirby and Callinan JJ held that there had been no breach of s 418(3), and so did not need to address the significance of its breach to the validity of the Tribunal's decision, save that Gleeson CJ at [21] said that, as Gaudron and Gummow JJ had pointed out, a failure to comply with s 418(3) did not entitle the then appellant to the relief he sought. 56 Consequently, Muin does not decide in a manner binding upon us that the breach of s 418(3) by the Secretary does not affect the validity of a subsequent Tribunal decision. The views of the three judges who addressed the issue are obviously of great significance. 57 The significance of the Secretary's failure to comply with s 418(3) to the valid exercise of the Tribunal's review function arose also in Applicants S487/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1309. Sackville J found at [26] that no breach of s 418(3) had been made out. His Honour at [32] considered, in any event, that any such failure by the Secretary 'would not establish that the RRT's decision was without legal effect. That is because the Secretary's compliance with s 418(3) of the Migration Act was not a precondition to the exercise of RRT's review functions and there was no obligation on the RRT to consider the documents described in s 418(3) as part of the review process.' That conclusion was founded upon the observations of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Muin to which we have referred. 58 An appeal to the Full Court (Moore, Branson and Emmett JJ) was dismissed: S487 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 125. Their Honours at [11] said simply that the approach at first instance was correct for the reasons given. 59 That decision was based upon the conclusion that there had been no failure to comply with s 418(3). Hence, the observations about the consequences of a failure to comply with s 418(3) are not strictly binding so that it should be followed unless we are satisfied the decision is plainly wrong: see e.g. SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 at [7]-[10] per Moore J, [123]-[128] per Weinberg J and [195] per Allsop J. Both at first instance, and on appeal, the issue was nevertheless carefully considered. The conclusion was based upon an analysis of the observations of members of the High Court in Muin. It is not, therefore, lightly to be dismissed. 60 An analysis of the Act, in any event, supports the conclusion. Section 414(1) obliges the Tribunal to review a validly instituted application. In doing so, it sits in the place of the original decision-maker; it is a true merits review: s 415. Its obligation to undertake the review arises independently of s 418. Section 418 provides for the Registrar of the Tribunal to notify the Secretary of a review application, so that the Secretary must then (a) give the Registrar a statement setting out the findings of fact of the decision-maker, which refers to the evidence on which those findings were based, and gives reasons for the decision (under subs (2)), and (b) give the Registrar the other documents referred to in subs(3).

It is implicit that that material will be given to the member of the Tribunal who constitutes it for the purpose of a particular review: s 421, as it is with information an applicant for review provides to the Registrar under s 423. 61 Sections 424 and 425 as in force relevant to the Muin decision were repealed and substituted by ss 424-425A: Migration Legislation Amendment Act (No 1) 1998 (Cth), s 3 and Sch 3 Pt 1. Schedule 3 also made other amendments to Pt 7 Div 4 of the Act. Those amendments applied to review applications made after their commencement, or to those made before their commencement but not yet completed at that time: Sch 3, Pt 2, cl 20 and 21. The essence of s 424(1) as previously in force is now reflected in s 425(2)(a). There is no need for an invitation to a hearing if the Tribunal considers it should review the decision in the visa applicant's favour on the written material before it. That material may now extend to that received from the Secretary under s 418(3), that provided by the applicant under s 423, additional information procured by the Tribunal under s 424 and the visa applicant's comments upon it under ss 424A and 424B. 62 The essential question remains whether the failure by the Secretary to comply with s 418(3) will result in the Tribunal - even though it has conducted its review in accordance with Div 4 of Pt 7 and has provided the visa applicant with procedural fairness (in this matter it is not necessary to consider the significance of s 422B, introduced by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)) - committing jurisdictional error, or in some way being disempowered from making a valid review. 63 In our judgment, the Secretary's failure to comply fully with s 418(3) does not have that effect. It is in Div 2 of Pt 7 of the Act. The obligation to conduct the review arises upon the making of a valid application, not upon the receipt of material given under s 418(3). Moreover, there are in Div 4 of Pt 7 (ss 422B - 429A) detailed procedures prescribing how the Tribunal is to conduct its review. The Tribunal will have received the information from the Secretary prescribed in s 418. It will have identified the evidence on which the findings are based. If it considers that any of that information would be the reason or part of the reason for affirming the decision under review, the visa applicant is given notice of that view and invited to comment upon it: ss 424A and 424B. The applicant is entitled to be invited to attend a hearing to give evidence and to make submissions: s 425. 64 The obligation under s 418(3) is upon the Secretary, not upon the Tribunal. The obligation is upon the Secretary to form a view as to the relevance of each document in the Secretary's possession or control to the review of the decision by the Tribunal. 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. More accurately, it might be asked rhetorically how a decision of the Secretary that a particular document is not relevant might be challenged. At the point where the Tribunal receives documents forwarded by the Secretary under s 418(3), the Tribunal may not (despite the Secretary's view of relevance) consider them to be relevant, or at least it may not consider them to contain information of the character referred to in s 424A. The Tribunal is not obliged to give weight to all or any of the material provided by the Secretary under s 418(3); cf per Gaudron J in Muin at [48]. Those considerations fortify, in our view, the conclusion to be drawn from the place s 418(3) occupies in the Act as discussed in the preceding paragraph. It would be surprising if it were intended that a breach of s 418(3) by the Secretary, perhaps through inadvertence (as here) or through an error of judgment, should result in the Tribunal's decision being tainted with jurisdictional error when it had fulfilled the procedures prescribed by Div 4 of Pt 7 and any additional procedural fairness obligations imposed on it. 65 There may be some analogy between the obligation imposed upon the Secretary under s 418(3) with that imposed upon a prosecuting authority to disclose to the defendant all material which may be of relevance to the defence, including material which may be helpful to the defendant: See R v Ulman-Naruniec (2003) 143 A Crim R 531 at [136]-[137]. The breach of that obligation may lead to a conviction being quashed: see e.g. Grey v R (2001) 184 ALR 593. But it is not quashed because the court committed jurisdictional error; rather it is quashed because the accused has been unfairly prejudiced and may have lost a fair chance of acquittal: Grey v R at [26]-[27]. 66 The significance of the failure to comply with an obligation to provide information will of course depend upon the particular legislative context. 67 In Muin, one claim advanced was that Secretary and the Commonwealth should be restrained from acting on the decisions of the Tribunal where the Secretary had not complied with s 418(3). Both Gaudron J at [47]-[57] and Gummow J at [180]-[183] rejected that contention. Their Honours did so because, under the Act as then in force, the Tribunal was not obliged to consider the documents provided under s 418(3) and the Secretary's compliance with s 418(3) is not a precondition to the Tribunal's exercise of its review powers. In this matter, there is no separate application for relief against the Secretary or the Commonwealth. Once a decision of the Tribunal has been made without jurisdictional error, it would be difficult to sustain an argument that its enforcement by the Secretary or the Minister should be restrained in the face of s 474 (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476) and in the light of the positive obligations imposed on 'officers' as defined by provisions such as ss 188, 189, 196 and 198 of the Act.

conclusion 68 For those reasons, none of the grounds of appeal have been made out. The appeal must be dismissed. The appellant should pay to the first respondent the costs of the appeal. 69 The Court records its appreciation to counsel for the appellant, who appeared pro bono and obviously put extensive work into the submissions. I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Moore, North & Mansfield.

Solicitor for the Respondent: Australian Government Solicitor

Migration Legislation Amendment (Procedural Fairness) Act 2002(Cth)

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Judgment (19 paragraphs)

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Legislation Cited (2)

Cases Cited (9)

Cited By (8)