FEDERAL COURT OF AUSTRALIA NAMO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 266 MIGRATION - appeal from Federal Magistrate – claim by appellant of breach of natural justice – Magistrate considered application for review on basis of decision in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 – no consideration of jurisdictional error by Magistrate – breach of natural justice not protected by s 474 of the Migration Act 1958 (Cth) following High Court decision in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 – consideration of appeal where lower court's approach based on NAAV – whether matter should be remitted to Magistrate for re-consideration of application for review in accordance with reasoning of High Court in S157 Migration Act 1958 (Cth) s 474 Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1108 referred to SBAU v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1076 referred to Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 applied Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 144 discussed VBAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 205 discussed SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74 referred to NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 19 followed NAMO OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N1150 OF 2002 TAMBERLIN J SYDNEY 28 MARCH 2003 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1150 OF 2002 BETWEEN: NAMO OF 2002 APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: TAMBERLIN J DATE OF ORDER: 28 MARCH 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The orders made by the Magistrate are set aside and the matter is remitted for further hearing and determination. 3. Costs are the appellant's costs in the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1150 OF 2002 BETWEEN: NAMO OF 2002 APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: TAMBERLIN J DATE: 28 MARCH 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate who dismissed an application for review of a decision of the Refugee Review Tribunal ("the RRT") which in turn affirmed a decision of a delegate for the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") not to grant a protection visa. 2 The application was heard by the learned Magistrate who delivered judgment on 15 October 2002. The appellant was not represented at the hearing before the Magistrate. The grounds contained in the application for review were assertions that the RRT erred in law in not quashing the respondent's decision to refuse the appellant a protection visa and that there had been an error in law in not sufficiently weighing the arguments advanced by the appellant to the effect that he would be persecuted if deported to Iran. The Magistrate pointed out that no submissions were received from the appellant prior to the hearing, nor was there any clarification of the grounds of appeal. The appellant sought an adjournment on the basis that he was seeking legal advice and was ill but in a separate ex-tempore judgment the adjournment application was denied. decision of magistrate 3 The Magistrate noted that the appellant's claim rested on a fear of persecution because of participation in student activities in Iran in July 1999, and that he claimed to be a wanted political activist arising out of membership of a now defunct Marxist organisation. Before the RRT, the appellant claimed that he had left Iran in July 1999 to escape the consequences of his alleged involvement in university demonstrations and that he lived for two years in Turkey before leaving for Australia in August 2001. 4 The Magistrate noted that the RRT had assessed the evidence and concluded that it was inconsistent and implausible; the most telling inconsistencies related to the appellant's residence in Turkey. 5 The appellant claimed in his initial airport interview to have left Turkey in about July 1999 where as in fact records from the Turkish government indicated that he had not left until a date considerably later. The RRT relied on this perceived inconsistency, and other inconsistencies in the evidence, to form an adverse view as to the appellant's credibility. The appellant contends that the initial interview was erroneous and that he had asked for but was denied access to the tape recording of that interview prior to the RRT hearing. The tape was therefore not before the RRT but the written record of the interview was available and it was on this document that the RRT relied to make the principal finding of inconsistency. 6 The Magistrate records that at the hearing the appellant complained to him of mistaken conclusions based on errors that had appeared in the record of previous interviews. These were said to have arisen out of the quality of the translation and others from the quality of assistance given to him. The appellant complained of the lack of fairness before the RRT and submitted that the RRT had drawn unfair conclusions against him but recognised the difficulties which arose out of the claimed conflicting statements. 7 The Magistrate, after noting these assertions by the appellant, proceeded to refer to the decision in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 from which the Magistrate concluded that: " … it is clear that s 474 of the Migration Act has so widened the powers of the Tribunal that, relevantly, only a failure to exercise its decision making powers in a bona fide manner now provides grounds for review." 8 The Magistrate was of the view that there was no suggestion of an inviolable limitation upon the powers not being addressed. He then refers to the decision of Sackville J in Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1108 summarising the effect of NAAV. He proceeded to quote in some detail, from the judgment of Mansfied J in SBAU v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1076 at [25], [31] and [32]. At those references his Honour noted that as a consequence of the Full Court decision in NAAV: "The Tribunal no longer commits jurisdictional error by wrongly identifying the applicable law, or by wrongly applying the applicable law, or by asking itself the wrong question, or by not addressing all the claims of a visa applicant or by failing to accord procedural fairness to a visa applicant, or by failing to comply with procedural prescriptions …." 9 The quotation from Mansfield J continues and makes the observation that it was the duty of the Court to determine whether it was persuaded that the decision of the Tribunal results from a bona fide attempt to perform the function of reviewing the decision of the delegate of the Minister. In the quotation the view is expressed that the role of the Court is to address the questions whether the Tribunal approached its task in good faith. 10 Immediately after the reference to the above authorities the Magistrate reasoned as follows at [13]: "I have read the decision of the Tribunal and listened to the submissions of the applicant with these matters in mind. I can find nothing which I have seen on the papers or have heard from the applicant that would indicate that the Tribunal has pre-judged any issues or entered upon its decision with a closed mind. To the extent that there may have been some errors in its findings on fact these are not matters which go to its jurisdiction. I am satisfied that the applicant has been unable to demonstrate reviewable error in this case." 11 These observations are directed to the nature of task undertaken by the RRT and are also directed to the genuineness of the task attempted by the RRT. His Honour then went on to dismiss the application with costs. THE APPELLANT'S CASE 12 The appellant submits that the Magistrate fell into error in his construction of s 474 of the Migration Act 1958 (Cth) ("the Act"). It is argued that the decision of the RRT failed to comply with the principles of natural justice, such that the decision is not protected by s 474 of the Act, given the High Court decision in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2. The appellant contends that the error in the approach taken by the Magistrate in his construction of s 474 underlined his failure to consider whether the matters complained of by the appellant gave rise to a jurisdictional error on the part of the RRT. 13 The appellant's attack on the decision of the RRT is grounded in the contention the decision of the RRT was largely based on findings as to credibility. A critical element in these findings was the discrepancy which the RRT found between the statements in the initial interview at the airport and later statements made by the appellant. Prior to the hearing before the RRT the appellant had sought access to the tapes recording the initial interview at the airport. This were refused. The tapes were not before the RRT when it reached its decision. 14 The appellant says that if access had been provided to the tapes, these would have disclosed information which would have met the conclusion of inconsistency reached by the RRT. There is no specification or evidence before me as to the respect in which it is said that tapes recording the airport interview would contradict specific aspects of the conclusion reached by the RRT or establish consistency with the subsequent statements made by the appellant. 15 Counsel for the respondent rightly points out that the tapes were not before the RRT. Nor were they before the Magistrate. However, I do not consider that this meets the case sought to be advanced by the appellant. 16 A further submission for the appellant is that he was deprived of natural justice at the hearing before the RRT because he made it clear that there were inaccuracies and inconsistencies in the records and that they could have been explained. There is a general reference to these matters being raised generally in the reasons for judgment of the Magistrate but there is no consideration of any specific aspects of these submissions. 17 The appellant's case is said to be one of a lack of procedural fairness because the RRT did not investigate and call for the tapes and it is said had this been done then any inconsistencies would have been resolved. He contends that as a result of the breach of procedural fairness, he did not receive a fair hearing before the RRT and thus was not able to properly advance his case. The appellant further submits that in the light of the law as it now stands, the Magistrate failed to properly consider whether there had been a breach of natural justice on the part of the RRT in the present case which would go to jurisdiction. reasoning on appeal 18 In my view it is evident that in this case, especially having regard to [13] of the judgment delivered by the Magistrate, that his Honour dealt with the application on the basis of the law as it previously stood according to the Full Federal Court in NAAV and that the controlling consideration in deciding to dismiss the application was that it had not been shown that there was a failure to make a bona fide attempt to perform the function of reviewing the decision of the delegate. This is evident from the reference by the Magistrate to reading the decision of the RRT "with these matters in mind". It is also evident from the reference to the issue of whether the RRT had pre-judged any issues or entered upon its decision with a closed mind. These matters go to the bona fides of an attempt to perform the review function. Moreover, when reference is made by the Magistrate to his satisfaction that the appellant has been unable to demonstrate "reviewable error" in this case, the reference is to what was "reviewable error" on the law as it then stood prior to the subsequent High Court decision in S157. 19 Since the decision in S157 there have been several decisions made examining the scope of s 474 of the Act: see Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 144 and VBAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 205. 20 In VBAC, Ryan J decided that the judgments in S157 did not mean that every failure to follow procedural requirements would be outside the protection of s 474 as being beyond jurisdiction but only such failures as were essential to the validity of the decision. In that case his Honour held that a failure by the RRT to have a further hearing in addition to allowing the applicant further information in writing did not constitute jurisdictional error because it did not arise from any identifiable provision of the Act. 21 In Lobo, Gyles J decided that the decision in S157 was confined so far as its impact on NAAV is concerned with the two cases before the Court involving failure to provide procedural fairness, notwithstanding the general language used by the majority in that case at [76]-[78]. 22 In S157 the High Court held, in a case involving a breach of natural justice, that as a matter of statutory construction, s 474 of the Act does not manifest an intention to remove an obligation on the RRT to afford procedural fairness to the parties: see Gleeson CJ at [37], Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [76], [77], [83] and [96]. Their Honours said at [96]: "Decisions which are not protected by s 474, such as that in this case, where jurisdictional error is relied upon, will not be within the terms of the jurisdictional limitations just described; jurisdiction otherwise conferred upon federal courts by the law specified in s 76(1) in respect of such decisions will remain, to be given full effect in accordance with the terms of that conferral." 23 As a result of the High Court's judgment in S157, the question whether there has been a breach of natural justice is one that must be determined by the Court, if that ground is advanced by an applicant. 24 In the present case it is apparent that the Magistrate approached the questions before him on the basis of the principles enunciated by the majority in NAAV. There is a reference in the Magistrate's decision to the fact that there may have been some unspecified errors in the findings of fact by the RRT but it is said that these do not go to its jurisdiction. There is no detail as to what errors may have occurred and there is no finding on this question. In addition, the reference to the inability of the appellant to demonstrate "reviewable error" is clearly directed to reviewable error as the law stood prior to the decision of the High Court in S157. 25 In considering the substance of the appeal before this Court, it is useful to make reference to the issue as to the nature of an appeal from a Magistrate's decision which was based on the decision in NAAV. This issue was considered by Mansfied J in SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74. In that case his Honour held that because the Magistrate's decision had been based on the law as it previously stood in NAAV, then in light of the decision in S157, the matter should be remitted to the Magistrate for consideration in accordance with law. His Honour examined the question as to whether he should conduct a further hearing himself but did not consider it appropriate because he was sitting as a Full Court. 26 This approach to the decision of a primary Judge in a case where the primary decision had been based on the reasoning in NAAV was adopted by the Full Court in NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 19 in circumstances where an examination of the merits of the application required a detail and lengthy examination of the material. The Court considered that it was a task more properly undertaken by a primary Judge rather than a Full Court. Therefore the Court remitted the matter to the primary Judge for consideration in accordance with law. The Court considered that the appropriate order was the costs of the appeal should be the appellant's costs in the cause and this is an appropriate order in the present case. I consider that the approach adopted by the Full Court in NADH should be adopted in this case in relation to remittal where in substance the applicant seeks to mount a natural justice case based on refusal of access to what is said to be relevant material. 27 In the present case, I am of the view that the Magistrate has decided the matter having regard to principles which subsequently have been held to be erroneous because it is clear that the Magistrate decided the case on the basis of the law as it stood on 15 October 2002 as formulated by the majority in the Full Court decision in NAAV which has now been relevantly overruled. 28 The appropriate order in this case is to set aside the decision of the Magistrate and to remit the matter for decision in accordance with law. 29 Accordingly, the appeal is allowed. The orders made by the Magistrate are set aside. The matter is remitted for decision in accordance with these reasons. The costs of this appeal shall be the appellant's costs in the cause. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 28 March 2003 Counsel for the Appellant: S Prince Counsel for the Respondent: T Reilly Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 20 March 2003 Date of Judgment: 28 March 2003