FEDERAL COURT OF AUSTRALIA SXXB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 537 MIGRATION – application for review of Refugee Review Tribunal decision refusing protection visa – hearing conducted by Tribunal under s 425 – Tribunal reconstituted under s 422 following hearing – decision made by reconstituted Tribunal – whether failure to give the applicant a further hearing before reconstituted Tribunal was a denial of procedural fairness Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) Plaintiff S157/2002 v Commonwealth of Australia (2003) 77 ALJR 454; [2003] HCA 2 cited NAXN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 71 cited NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781 cited Liu v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 113 FCR 541; [2001] FCA 1362 applied Minister for Immigration & Multicultural & Indigenous Affairs v Eshetu (1999) 197 CLR 611 cited Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 660; [2004] HCA 62 cited NADG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 893 cited SXXB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and GILES SHORT MEMBER REFUGEE REVIEW TRIBUNAL and PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL SAD 6 of 2005 MANSFIELD J 4 MAY 2005 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SAD 6 OF 2005 BETWEEN: SXXB APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT GILES SHORT MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 4 MAY 2005 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application is refused. 2. The applicant pay to the first respondent costs of the application to be taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SAD 6 OF 2005 BETWEEN: SXXB APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT GILES SHORT MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT JUDGE: MANSFIELD J DATE: 4 MAY 2005 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This application under s 39B of the Judiciary Act 1903 (Cth) is for an order to quash a decision of the Refugee Review Tribunal made on 10 November 2004. The Tribunal affirmed a decision of a delegate of the respondent of 12 December 2003 refusing to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act) on 7 November 2003 shortly after his arrival in Australia. 2 The applicant claimed to be entitled to a protection visa as a refugee from Sudan. At this point it is necessary to note only briefly the foundation for his claim to be a refugee. It was that, for reasons of his political opinion or his perceived political opinion as a member of the Political Liberation Front of Sudan and later as a member of the Umma party, if he were to return to Sudan he would be persecuted by Sudanese authorities, in particular the Sudanese Security Forces. In essence, the Tribunal did not believe the applicant's claims. It noted various inconsistencies in his evidence from time to time, certain features which it regarded as inherently unlikely, and certain aspects which were inconsistent with independent information about Sudan. 3 The applicant's entitlement to the relief sought depended upon him establishing jurisdictional error on the part of the Tribunal in making its decision: Plaintiff S157/2002 v Commonwealth of Australia (2003) 77 ALJR 454; [2003] HCA 2 (Plaintiff S157/2002). Although the application to the Court in this matter contained six grounds of alleged jurisdictional error, ultimately only one was pursued at the hearing, and then only in a limited way. The applicant contended that the Tribunal had committed jurisdictional error by failing to accord him procedural fairness in making its decision. The alleged failure was a failure to give the applicant an opportunity to appear to give evidence and to make submissions as required by s 425 of the Act. The circumstances in which that claim is made are a little out of the ordinary. 4 The application to the Tribunal was made on 6 January 2004. On 12 March 2004 the Tribunal informed the applicant that it was unable to reach a decision favourable to him on the material then before it. Pursuant to s 425 of the Act, it invited the applicant to attend a hearing to give evidence and make submissions. The hearing took place on 4 May 2004. At the completion of the hearing, the Tribunal as then constituted raised with the applicant some matters of concern to the Tribunal. The applicant was given the option of saying at the hearing anything further he wished to say on those matters, and alternatively to receive a copy of the recording of the hearing so that, in consultation with his migration agent, he could make a further submission in writing to the Tribunal. The applicant chose the latter course. He was given two weeks within which to make a further submission to the Tribunal. 5 No further submission was received after that date. 6 The Tribunal was then reconstituted, apparently for one of the reasons specified in s 422 of the Act. The applicant has accepted that the Tribunal was properly reconstituted. It is the conduct of the Tribunal as reconstituted which gives rise to the contention. 7 On 24 August 2004 the Tribunal as reconstituted wrote to the applicant requesting the provision of a certain document under s 424 of the Act, and giving the applicant an opportunity to comment upon certain information which the Tribunal then regarded as the reason, or part of the reason, for affirming the decision of the delegate under s 424A of the Act. In the letter the applicant was informed: 'The Member who constituted the Tribunal for the purpose of the hearing in relation to your application on 4 May 2004 has stopped being a Member of the Tribunal and the review of your application has been allocated to another Member for the purpose of finishing the review. In accordance with section 422 of the Migration Act 1958 (the Act) the Member now reviewing your application may have regard to the record of the proceedings before the Tribunal as previously constituted including the tapes of the hearing on 4 May 2004.' 8 The applicant sought, and was granted, additional time within which the respond to that letter. He ultimately responded on 12 October 2004. 9 The decision of the Tribunal was made then on 10 November 2004. 10 In essence, the applicant contended that, because there had been a change in the composition of the Tribunal, in the particular circumstances s 425 of the Act required the Tribunal as newly constituted to give to the applicant a further opportunity under s 425 of the Act to give evidence and to make submissions, notwithstanding the earlier hearing on 2 May 2004. The contention was based upon the proper construction of s 425 in its context in the Act. In the face of s 422B, the applicant did not contend that he had any additional entitlement to a hearing derived from the common law principles of procedural fairness. He also accepted the validity of s 422B of the Act; cf NAXN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 71 at [9] and [23] per Allsop J. See also the consideration of s 357A of the Act by Lindgren J in NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781 at [50]-[88]; s 357A is relevantly in the same terms as s 422A but applies to review under the Act by the Migration Review Tribunal. 11 A similar issue was considered by the Full Court in Liu v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 113 FCR 541; [2001] FCA 1362 (Liu). The issue was described by the Court (Black CJ, Hill and Weinberg JJ) at 543, [3] in the following terms 'If the Tribunal member who constitutes the Tribunal for the purposes of a particular review stops being a member after there has been an oral hearing, and the Tribunal is reconstituted by another member to finish the review, is the second member required to invite the applicant to appear and give evidence and present arguments in accordance with s 425 of the Act?' 12 The Court, recognised that s 425 of the Act gives rise to an important substantive right to a visa applicant to have the opportunity to appear before the Tribunal. However, the Court concluded that s 425 does not in the circumstances give rise to a right to a further hearing before the Tribunal as reconstituted. The court at 553, [47] determined that the right granted by s 425 is qualified by the discretion given to the Tribunal under s 428, and so was not an absolute right. Section 428(1) empowers the Tribunal to authorise a person other than the decision-maker to take evidence from an applicant for a protection visa, and s 428(5) provides expressly that a record of evidence given by an applicant in such circumstances, if received by the Tribunal, results in the applicant being taken to have been given an opportunity to appear before it to give evidence for the purposes of s 425. 13 The gist of the Court's reasoning is reflected at 553-554, [49] as follows: 'The power under s 428 is discretionary and it may be exercised in a range of circumstances, not all of which will necessarily require the Tribunal to provide, as a matter of fairness, an applicant with a right to appear before it. It might, for example, be perfectly appropriate for the Tribunal to authorise another person to hear an applicant if the applicant was in a remote location and nothing turned on credibility. In such a case, the applicant's narrative, as set out in the record, may be all that is needed to satisfy the requirements of a fair procedure. In a different case, where credibility was centrally in issue and where, in any event, the person could reasonably attend before the Tribunal, the sound exercise of discretion might well be agreed to produce a different result. Indeed, s 420 of the Act directs the Tribunal to act according to substantial justice and the merits of the case, and to pursue the objective of providing a mechanism of review that is, among other things, fair and just. But the fact that the exercise of the discretion to authorise another person to take evidence from the applicant in a particular case may be open to criticism provides no reason to read down the express words of s 428(5). This conclusion, in our view, stands in the path of the appellants' argument that the right to a hearing is compromised if a reconstituted Tribunal does not hear an applicant personally.' 14 In Liu, an alternative argument was addressed that, if the Tribunal as reconstituted had failed to have regard to the full record of the earlier hearing, s 425 operated to oblige it to offer a further hearing. The argument was based upon s 422(2) of the Act. Section 422 obliges the Principal Member of the Tribunal to direct the reconstitution of the Tribunal in certain circumstances for the purposes of finishing a particular review. It is common ground that that is what occurred here. Section 422(2) provides: 'If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.' The argument was that partial reference only to the record of proceedings did not satisfy s 422(2), so s 425 was again enlivened. The Court rejected that contention. It said at 554, [50], that the discretionary power to examine the record of an applicant's hearing conferred by s 422 of the Act, and the possibility that the discretion might not be properly exercised, did not govern the interpretation of s 425. 15 It was further argued in Liu that, in the particular circumstances, the Tribunal as reconstituted was bound to give the applicant a further opportunity for a hearing as the transcript of the earlier hearing appeared to be defective or incomplete. There were certain aspects of the written record of the earlier hearing which appeared to be a little inaccurate or incomplete. Reference was made to s 427(3) which empowers the Tribunal to require the production of material, so that under s 427(3) the Tribunal should have required the production or presentation of a more complete and accurate transcript of the earlier hearing. That contention also failed. It did so for the same fundamental reason, namely that the possibility of an improper exercise of a discretion under s 427(3) could not serve to expand the content of s 425 of the Act. 16 Counsel for the applicant accepted that I should follow Liu if it applied in the present circumstances. He submitted that Liu was distinguishable from the present circumstances ultimately only because the Tribunal had on 24 August 2004 given to the applicant in accordance with s 424A notice of particular information that it considered would be a reason or part of the reason, for affirming the decision under review. Section 424A(1)(c) obliges the Tribunal to invite the applicant to comment upon that information. It required any comment to be in writing. The contention was that, because the information the subject of that notice included repeated reference to evidence the applicant had given at the hearing on 2 May 2004, the Tribunal was not entitled to require the respondents to that notice to be given in writing, and so it was obliged to re-follow the procedure prescribed by s 425 of the Act. A separate ground to distinguish Liu, based upon being a decision which predated the High Court decision in Plaintiff S157/2002 was not persisted with. 17 The short answer to the contention, in my judgment, is that s 424A obliges the Tribunal to give particulars of adverse information to which it applies 'in the way that the Tribunal considers appropriate in the circumstances' and to invite the applicant to comment on it. Section 424B obliges the invitation given under s 424A to specify: 'the way in which the additional information or comments may be given, being the way the Tribunal considers is appropriate in the circumstances.' Section 424B(2) specifically contemplates that the information may specify the means of response otherwise than at an interview. It is thus a matter for the discretion of the Tribunal as to how the response may be given. There is clearly no obligation on its part to give a further oral hearing, and no entitlement on the part of the visa applicant to a further oral hearing. 18 Once that step is taken, in my view the reasoning of the Full Court in Liu applies equally to the present contention. The fact that the discretion might be improperly exercised as to how the response must be given to a notification under s 424A cannot serve to expand the content of s 425 of the Act. 19 Nor does s 420 of the Act of itself create an entitlement to a hearing. It operates in an exhortatory manner to describe to the Tribunal generally the approach which it should adopt in conducting a review in accordance with Div 4 of Pt 7 of the Act but does not itself establish procedural rights: Minister for Immigration & Multicultural & Indigenous Affairs v Eshetu (1999) 197 CLR 611 at [108]-[109]. 20 Counsel for the applicant contended that the review had not been completed because the Tribunal as reconstituted sent to the applicant the notification and invitation under s 424A of the Act following the hearing on 2 May 2004. Reliance was placed upon the decision of the High Court in Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 660; [2004] HCA 62 (NAFF). In my judgment, NAFF does not assist the applicant in this matter. There the Tribunal had indicated at the completion of the hearing under s 425 that the process of review was incomplete. The Tribunal member had indicated an intention to seek further comments from the visa applicant on matters to be identified by the Tribunal. However, without further communication, the decision on the review was then given. By way of contrast, in this matter the Tribunal as originally constituted towards the end of the hearing had identified matters of concern about the applicant's evidence and had given the applicant the choice as to how he would address those concerns. He was given a specified time to do so. He did not take up that opportunity. When the Tribunal was reconstituted, the applicant was given a further opportunity to address particular concerns of the Tribunal by the letter under s 424A, and he took up that opportunity. 21 Just as importantly, as the applicant did not contend that Liu was wrongly decided or had been qualified in its application by NAFF in any way, the issue in this case is as to the nature and extent of the obligation imposed by s 425 where there has been a completed hearing and thereafter the Tribunal has been reconstituted under s 422. For the reasons I have given, Liu applies directly to the present circumstances. I am bound to follow it. See also NADG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 893 at [21] per Branson J. 22 Counsel for the applicant made a supplementary contention that it was unclear whether the Tribunal had in fact received the record of the evidence given by the applicant at the hearing on 2 May 2004 in accordance with s 428(4) of the Act, so that s 428(5) did not deem the Tribunal as reconstituted to have given the applicant an opportunity to appear before it to give evidence for the purpose of s 425. The submission was only faintly pressed. No particular features of that record of interview were suggested to have been overlooked by the Tribunal or to have been misunderstood by it. In my judgment, from the Tribunal's recitation of the evidence before it, as well as from the content of the notification given under s 424A on 28 April 2004, it is quite clear that the Tribunal had received in evidence the record of the hearing of 2 May 2004 and had careful regard to it. The contention is rejected. 23 For those reasons the application must be dismissed. I also order the applicant to pay to the first respondent her costs of the application. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 2 May 2005 Counsel for the Applicant: M Clisby Solicitor for the Applicant: MW Clisby Counsel for the Respondent: K Tredrea Solicitor for the Respondent: Sparke Helmore Date of Hearing: 8 April 2005 Date of Judgment: 4 May 2005