FEDERAL COURT OF AUSTRALIA WAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 364 Kioa v West (1995) 159 CLR 550 cited Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1 referred to Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 referred to WAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 316 affirmed WAAF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 316 considered WAAC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS WAD 163 of 2004 NICHOLSON J 8 APRIL 2005 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 163 OF 2004 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: WAAC APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: NICHOLSON J DATE OF ORDER: 8 APRIL 2005 WHERE MADE: PERTH THE COURT ORDERS THAT: The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAD 163 OF 2004 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: WAAC APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: NICHOLSON J DATE: 8 APRIL 2005 PLACE: PERTH REASONS FOR JUDGMENT 1 This is an appeal from the decision of a Federal Magistrate made on 28 June 2004 dismissing an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') made on 10 September 2001 confirming a decision of a delegate of the respondent (WAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 316). The delegate's decision refused an application by the appellant for a protection visa pursuant to the provisions of the Migration Act 1958 (Cth) ('the Act'). factual background 2 The appellant arrived in Australia by boat as an unlawful non-citizen on 18 December 2000. He was initially interviewed by an officer of the Department of Immigration and Multicultural and Indigenous Affairs ('the Department') on 29 December 2000. He claimed he was a citizen of Iran born in Ahwaz, Khozistan, Iran. 3 In April 2001 the appellant provided information in the Farsi language to a migration agent, Dr Al Jabiri, that he was born in Iran and was a citizen of Iran. 4 On 1 June 2001 the appellant made an application for a protection visa. The appellant was assisted by a migration agent with a firm of solicitors in making his application. The appellant then claimed that he was a citizen of Iraq, born in Alashar, Basra, Iraq. The appellant was interviewed by a delegate of the respondent on 6 June 2001. 5 On 27 June 2001 the delegate's decision was made refusing to grant a protection visa to the appellant. The delegate found that the appellant was born in Iran and is a citizen of Iran. 6 On 2 July 2001 the appellant applied to the Tribunal for review of the delegate's decision. He was again assisted by a firm of solicitors in making his application. 7 By letter dated 13 July 2001 the Tribunal wrote to the appellant pursuant to s 424A of the Act to advise that it had information which would, subject to any comments he might make, be the reason or part of the reason for deciding he was not entitled to a protection visa. The Tribunal advised the appellant of the nature of the information, why it was considered relevant, and invited his comments by 20 July 2001. A copy of the letter was sent to the appellant's solicitors. The matter put to the appellant in the letter was the difference between his claim at interview on 29 December 2000 that he had been born in Ahwaz, Khozistan, Iran and his later claim on 1 June 2001 that he was born in Iraq, and the period of time between the two. The appellant and his advisers provided responses to the Tribunal's s 424A letter. 8 The appellant gave oral evidence to the Tribunal at a hearing conducted on 19 July 2001, and gave further oral evidence at the continuation of the hearing on 24 July 2001. 9 At the further Tribunal hearing on 24 July 2001 the appellant's adviser informed the Tribunal that he had only found out at the hearing that an original Green card (the appellant's mother's) could not be sent, and that it was also the first time he had become aware that the appellant had an original card to travel which he claimed had been issued to him as an Iraqi. The appellant stated that it would take 20 to 25 days to obtain the travel card from Iran. 10 The Tribunal member advised the appellant and his solicitor that he was prepared to grant a further 20 days to enable the appellant to obtain the travel card he claimed had been issued to him in Iran. The appellant's solicitor agreed that was reasonable. In the reasons of the Tribunal it was recorded as follows: 'I put to the [appellant] that I noted on his file that he had first been represented by a solicitor from the same firm his current solicitor was from. I said that I knew the solicitor concerned as he had appeared before me on several occasions and I had always found him to be very thorough. I said that I was of the opinion that solicitor would have raised the issue of identity with him and asked if there was any evidence that would support his claims such as a card or document. I said that since that person had represented him at the beginning of June, almost two months previously, and I would take that into account when and if his current representative sought time to provide further evidence.' 11 On 10 August 2001 the appellant's solicitors requested an extension of time to provide written submissions to the Tribunal. On 13 August 2001 the Tribunal advised the appellant's solicitors that they could have until 20 August 2001. 12 By letter dated 14 August 2001 the appellant's solicitors requested that the Tribunal exercise its powers under s 427 of the Act to appoint an independent cultural assessor to investigate whether or not the appellant was an Iraqi. The Tribunal refused this request. 13 On 20 August 2001 the appellant's solicitors provided written submissions to the Tribunal. The appellant's solicitors did not provide any further documents or material to the Tribunal and did not seek any further time to do so. 14 On 10 September 2001 the Tribunal made a decision affirming the delegate's decision. The Tribunal found that the appellant's nationality was Iranian. 15 The relevant chronology which emerges from the above circumstances is as follows: 1.6.2001 Application made for protection visa. 21.6.2001 Delegate's decision. 2.7.2001 Application to Tribunal for review. 13.7.2001 Section 424A notice. 17.7.2001 Hearing commenced adjourned part heard. 24.7.2001 Hearing resumed part heard. 14.8.2001 Application to appoint cultural assessor. 17.8.2001 Notice refusing request to appoint cultural assessor. 10.9.2001 Tribunal decision. review hearings 16 On 2 October 2001 the appellant lodged an application for review of the Tribunal's decision with the Western Australian Registry of the Federal Court ('the application'). The grounds of the application were stated to be: 'I am an IRAQI who can't go back to my country so I apply to Federal Court.' 17 On 12 April 2002 his Honour Lee J ordered that the proceedings be transferred to the Federal Magistrates Court of Australia pursuant to s 32AB of the Federal Court of Australia Act 1976 (Cth). 18 On 11 July 2002 his Honour Scarlett FM made orders that the application be dismissed and that the appellant pay the respondent's costs. 19 By a notice of appeal dated 30 July 2002 the appellant appealed from the whole of the judgment of his Honour Scarlett FM given on 11 July 2002. The grounds of appeal reflected the grounds of review set out in the former ss 476(1)(a), (e) and (g) of the Act. 20 The appeal was heard by his Honour Carr J on 7 March 2003. Prior to the hearing of the appeal, the High Court had delivered its decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 in which the Court held that the expression 'decision[s] … made under this Act' in the definition of 'privative clause decision' in s 474(2) of the Act must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of jurisdiction conferred by the Act. Thus a decision involving jurisdictional error was not 'a privative clause decision' as defined in s 474(2) of the Act (at [76]). His Honour Carr J held that without the hindsight provided by Plaintiff S157/2002, his Honour Scarlett FM had unwittingly erred in law by taking too narrow a view of what might constitute reviewable error on the part of the Tribunal (at [29]). His Honour considered that the appropriate course was to remit the matter back to the Federal Magistrates Court for rehearing or further hearing according to law, and his Honour so ordered. 21 Before Carr J two documents were tendered on behalf of the appellant. The first was a document translated as the appellant's Iranian travel card issued to him as a 'National of Iraq' for travel from Qom to Tehran from 23/10/2000 to 18/11/2000. The second was a document translated as an authority for seizure of the appellant's identification card on his departure from Iran and in which he was described as an Iraqi national. It was not necessary that any findings then be made in respect of these documents. 22 By an 'Amended Application Under Section 39B of the Judiciary Act 1903' dated 28 October 2003 ('the amended application'), the appellant sought review of the Tribunal's decision made on 10 September 2001 on the ground that 'the Tribunal made a jurisdictional error in exercising its statutory power by denying the [appellant] procedural fairness and making an erroneous finding that affected the Tribunal's exercise of power'. The amended application then set out five particulars of the alleged breach of procedural fairness and the alleged erroneous finding. 23 There was a further hearing of the amended application before his Honour McInnes FM on 29 October 2003. On 28 June 2004 his Honour ordered that the amended application be dismissed with costs. In his reasons his Honour said: '22. It was submitted [by the respondent] that having regard to the chronology of events there was no breach of procedural fairness by the RRT in not allowing the applicant further time to provide evidence and material to the RRT. There had been 48 days from the further tribunal hearing on 24 July 2001 until delivery of the decision on 10 September 2001 and that this in fact was more than the time sought by the applicant or his solicitor and no further request was made for time to provide the further material evidence. 23. In my view the respondent's submissions are correct. I cannot see any jurisdictional error arising from what might be claimed as procedural fairness in relation to the issue of allowing the applicant further time to provide the material. It was clearly open to the advisers of the applicant to seek and obtain further time prior to the delivery of the RRT decision. In any event, the RRT provided the time requested by the then applicant's advisers and otherwise complied with the requirements of procedural fairness.' grounds of appeal 24 By a notice of appeal dated 16 July 2004, the appellant appealed from the whole of the judgment of his Honour McInnes FM given on 28 June 2004 on the following principal ground: '3. The learned Federal Magistrate ought to have held that the Tribunal denied the appellant procedural fairness by unreasonably limiting the time allowed to the appellant to provide acceptable documentary evidence to establish that he was a national of Iraq and not an Iranian national when his nationality was the critical fact of his claim for a protection visa and the principal reason for the Tribunal's refusal of his application.' Although other grounds were stated, the appellant accepts that the appeal falls to be resolved on the issue stated in the above ground and the related issue of materiality. Procedural fairness 25 The appellant's contention that he was denied procedural fairness by the Tribunal is based upon the claim that the Tribunal unreasonably limited the time allowed to provide acceptable documentary evidence to establish that he was a national of Iraq and not an Iranian national. 26 The requirements of procedural fairness will depend upon the circumstances of the particular case: see Kioa v West (1995) 159 CLR 550 per Mason J at 584 – 585. 27 The respondent submits that the relevant circumstances surrounding the appellant's request to the Tribunal to be allowed further time to provide documentary evidence are as follows: (a) At his interview on 29 December 2000, the appellant had claimed that he was born in Ahwaz, Khozistan, Iran and that he was a citizen of Iran. (b) The appellant was aware that at the time of making his protection visa application on 1 June 2001 that his nationality was a major issue in light of the claims he now made that he was a citizen of Iraq. In his written statement accompanying his protection visa application, the appellant stated he would try and contact his family to ask them to send him documents to prove his identity. (c) On 27 June 2001 the appellant's protection visa application was refused because the delegate found that the appellant was born in Iran and was a citizen of Iran. (d) The appellant was in receipt of assistance from his solicitors in making his protection visa application and in seeking review of the delegate's decision by the Tribunal. (e) At the further Tribunal hearing on 24 July 2001, the appellant's solicitors asked him how long it would take to obtain the travel card from Iran, and the appellant stated that it would take 20 to 25 days. (f) The Tribunal granted the appellant a further 20 days (i.e until 13 August 2001) for him to obtain the travel card, and the appellant's solicitors agreed that that was a reasonable time. (g) The appellant's solicitors subsequently sought an extension of time from the Tribunal to provide written submissions, and the Tribunal granted an extension until 20 August 2001. (h) The Tribunal did not make its decision until 10 September 2001, but no further material or evidence was received by the Tribunal. There is nothing to suggest that any further time was sought by the appellant or his solicitors to provide any further evidence or material to the Tribunal prior to its decision on 10 September 2001. 28 Given the above circumstances, the respondent submits procedural fairness did not require that the Tribunal provide the appellant with further time beyond 20 August 2001 to provide any further evidence or material upon which he wished to rely in support of his claim that he was a citizen of Iraq. In any event it is contended the appellant was in fact provided with further time as the Tribunal did not make its decision until 10 September 2001. Accordingly it is submitted that his Honour was correct in concluding that there was no jurisdictional error arising from the appellant's claim as to lack of procedural fairness in relation to the issue of allowing him further time to provide material. Further it is submitted there is no error in his Honour's reasoning that it was clearly open to the appellant's solicitors to seek and obtain further time prior to the delivery of the Tribunal's decision, and that in any event, the Tribunal had provided the time requested by the appellant's solicitors and otherwise complied with the requirements of procedural fairness. 29 The appellant submits that in assessing the circumstances his Honour failed to weigh up that: (a) It was not until the close of the Tribunal hearing on 24 July 2001, that the appellant was informed what was acceptable corroborative evidence of his claims that he was an Iraqi national; (b) The Tribunal's reliance on the appellant having received two months counsel from the solicitor whom the Tribunal had 'always found to be very thorough' was misplaced and illusory in the light of the position the Tribunal had taken at the hearing on what was acceptable corroborative evidence; (c) The solicitor's letter of 14 August 2001 to the Tribunal requesting the appointment of a cultural assessor because of the difficulty in obtaining documentary evidence of nationality underlined the need for adequate time to respond to the Tribunal's demand for acceptable corroborative evidence. 30 In response to this the respondent submits as follows. As to (a), it is clear from the evidence that the appellant was aware from the time of making his application for a protection visa that he was required to provide evidence of his conflicting claim that he was born in Iraq. As to (b), these circumstances do not go to the ground of procedural fairness. As to (c), the fact is that no further time was requested by or on behalf of the appellant in respect of the opportunity to provide corroborative evidence. 31 I agree with the submissions for the respondent. I do so because the circumstances establish that the appellant had a very reasonable opportunity to provide the required evidence. The time allowed was only drawn to a close upon the appellant's solicitor agreeing the opportunity allowed was reasonable. Over and above this, further time in fact existed before the Tribunal made its decision. His Honour's conclusion that there was no jurisdictional error on the part of the Tribunal as a result of a claimed lack of procedural fairness by reasons of the Tribunal unreasonably limiting the time for the appellant to provide further documentary evidence, was a conclusion that was reasonably open to his Honour having regard to the particular circumstances. Accordingly, there was no appellable error in his Honour so concluding. 32 As I hold this view, it is not necessary for me to consider whether, if there was procedural unfairness, practical injustice was established: see Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 per Gleeson CJ at [37] – [38], McHugh and Gummow JJ at [106], Hayne J at [122] and Callinan J at [149]. conclusion 33 For the reasons set out above there was no jurisdictional error on the part of the Tribunal as alleged by the appellant. Likewise, there was no appellable error by his Honour McInnes FM in dismissing the application before him. The appeal should be dismissed. 34 Having in mind the acceptance in the High Court (Gleeson CJ and Hayne J on a special leave application on 4 February 2005) of what was said in WAAF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 316 at [35], no order as to costs is appropriate. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson. Associate: Dated: 8 April 2005 Pro Bono Counsel for the Appellant: LB Price Counsel for the Respondent: PR Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 March 2005 Date of Judgment: 8 April 2005