FEDERAL COURT OF AUSTRALIA SZGZH v Minister for Immigration & Citizenship [2007] FCA 486 MIGRATION – failure by Tribunal to give notice in writing to an applicant of medical opinion concerning the applicant obtained by the Tribunal during an adjournment of the Tribunal hearing Migration Act 1958 (Cth) ss 416, 420, 422B, 424A, 425, 425A, 426, 427(1)(b), 437 and 438 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 SZGZH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 2455 OF 2006 GRAHAM J 4 APRIL 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 2455 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZGZH Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAHAM J DATE OF ORDER: 4 APRIL 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal from the judgment of Nicholls FM of 29 November 2006 in matter number SYG 2211 of 2005 in the Federal Magistrates Court of Australia be allowed. 2. The orders made in the Federal Magistrates Court of Australia on 29 November 2006 be set aside. 3. A writ of prohibition issue directed to the first respondent prohibiting him from acting upon the second respondent's decision of 29 June 2005 handed down on 21 July 2005. 4. Writs of certiorari and mandamus issue directed to the second respondent quashing the second respondent's decision of 29 June 2005 handed down on 21 July 2005 and requiring redetermination of the appellant's Application for Review according to law. 5. There be no order as to costs in respect of the proceedings in the Federal Magistrates Court of Australia or in respect of the appeal in this Court. 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 NSD 2455 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZGZH Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: GRAHAM J DATE: 4 APRIL 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Section 420 of the Migration Act 1958 (Cth) ('the Act') makes provision for the 'way of operating' of the Refugee Review Tribunal ('the Tribunal') as follows: '420(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case.' 2 In relation to the conduct of a review there are a number of matters which are dealt with in ss 416, 437 and 438 and in Divisions 4 and 7A of Part 7 of the Act. Sections 425, 425A and 426, all of which fall within Division 4 of Part 7, deal with the extending of invitations to applicants for review 'to appear' and the content of such invitations. The sections use expressions such as '… must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review', '… must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear' and '… must notify the applicant … that he or she is invited to appear before the Tribunal to give evidence …'. (emphasis added) 3 It is implicit from the terms of s 425(1) that not only must an appropriate invitation be extended but also it should be followed by a corresponding hearing at which the opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review will be afforded to the applicant, subject to the provisions of s 425(3). However, any shortcomings of the Tribunal in respect to the provision of a corresponding hearing will fall to be determined according to the rules of natural justice, the content of which must be ascertained in the context of the relevant statutory power and the limitations on the natural justice hearing rule imposed by the Act under s 422B. 4 What is required by procedural fairness is a fair hearing not a fair outcome. The particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 592 at 598 [25]-[26]). 5 Under s 427(1)(b) of the Act the Tribunal is empowered to adjourn a review from time to time. 6 In the instant case the Tribunal extended an invitation to the appellant 'to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons'. The appointed time for the hearing was 1.30 pm on Thursday 2 June 2005. 7 A hearing took place on 2 June 2005 which was attended by the appellant who gave oral evidence with the assistance of a Bengali speaking interpreter. The appellant was accompanied by his adviser Md Zahirul Hoq Mollah but he did not stay for the whole of the hearing. There is no evidence to indicate when, precisely, the hearing commenced, although it may be observed that it was appointed to commence at 1:30 pm. There is evidence to suggest that it concluded at 4:01 pm. 8 In response to the question 'Why did you leave that country?', referring to Bangladesh, the appellant said in his Visa Application of 14 December 2004: 'I forced to leave Bangladesh because I targeted by present BNP Coalition government and the muslim fundamentalist. I am the activist of Bangladesh Awami League. Student wing chatra leage (sic). I am a secular and free thinker. I am the wanted person for police because of fales (sic) charge. I will tell all later.' 9 During the course of the Tribunal hearing it would appear that the appellant became rattled by a question which related to an allegation by him that he had been charged on 13 August 2001 with an offence in relation to certain conduct said not to have taken place until 14 August 2001. When asked to explain the apparent inconsistency the appellant apparently said that 'he was not feeling very well at that moment so he mixed it up'. 10 The Tribunal's decision on the appellant's Application for Review dated 29 June 2005 was handed down on 21 July 2005. The Tribunal Member affirmed the decision of the Minister's Delegate not to grant the appellant a Protection Visa. In the 'FINDINGS AND REASONS' section of the Tribunal's decision the Tribunal recorded that: 'Having had the opportunity to take oral evidence from the applicant, the Tribunal found him to be a thoroughly unconvincing witness. At times his evidence was illogical, implausible and inconsistent. At other times he was evasive and hesitant, and finally he demonstrated a lack of knowledge about his party. It thus finds that he was not a credible witness.' 11 Later the Tribunal recorded: 'In his oral evidence, the applicant claimed that a false case had been filed against him on 13 August 2001 in relation to events that occurred on 14 August 2001. When the Tribunal put to the applicant that it was illogical for the case to be filed before the events which were the subject of the case even occurred, the applicant stated that the case was filed the day before the incident because it was planned that he would be arrested. … The Tribunal … does not find it plausible that the case would have been filed before the events which were to be the subject of the case had even occurred as there would be no basis for the case had it been filed then.' 12 The Tribunal continued towards the end of its reasons by saying: 'The Tribunal has considered all the documents submitted by the applicant to support his case but in light of his lack of credibility and the documentary evidence about the availability of fraudulent documents from Bangladesh referred to in the Independent Evidence, it has decided to give them no weight. Thus, given the applicant's lack of credibility, the Tribunal finds that he was not a member of the Awami League's Chhatra League, is not secular or a free-thinker and did not experience any of the problems in Bangladesh he claims. It finds that his claims are utter fabrication. Consequently, the Tribunal finds that the applicant does not have a well-founded fear of persecution in Bangladesh for any Convention reason.' 13 It is no part of the Court's function to determine the correctness or otherwise of the conclusions which were reached by the Tribunal Member. What is important is the procedure which was followed in reaching those conclusions. 14 The 'FINDINGS AND REASONS' section of the Tribunal's decision were recorded on about five pages of typed script. On three separate occasions within those findings and reasons reference was made by the Tribunal Member to the appellant's assertion of ill health which had been summarised earlier by the Tribunal Member in the manner indicated above at [9]. The following passages are recorded in the 'FINDINGS AND REASONS': 'During the hearing the applicant claimed that he was not feeling well due to back pain, chest pain and a runny nose, and that he had been sick and mentally upset when he prepared his protection visa application. On the basis of the prescription and written referral the applicant submitted at the hearing and the Tribunal's conversations with Dr Deva, the Tribunal accepts that the applicant consulted a doctor on the morning of the hearing, was prescribed medication and referred for a lumbar spine examination. However, there is no medical evidence before the Tribunal to indicate that the applicant was afflicted with a condition either when he prepared his protection visa application or during the hearing which affected his ability to accurately recall information or give oral evidence and present arguments. The Tribunal did not detect anything in the applicant's manner at the hearing either before or after he claimed to have been unwell which suggested that he was experiencing any physical or mental discomfort during the hearing. On the contrary, he appeared very focussed and composed throughout even when serious problems with his evidence were put to him. Further, if the applicant was unwell and was thus having difficulty recalling matters, the Tribunal expects that he would have said so immediately in response to the Tribunal's questions. However, the applicant only claimed to have been unwell when problems with his evidence were put to him. Therefore, the Tribunal does not accept that the applicant's ability to recall past events, give oral evidence at the hearing and present arguments or provide accurate information in his protection visa application was affected by some physical or mental condition.' 15 Immediately after these observations in the Tribunal Member's decision the Tribunal's finding that the appellant was a 'thoroughly unconvincing witness' was made. 16 Later, in addressing a claim by the appellant that a case had been filed against him on 13 August 2001 because the BNP had come to power, which appeared to be inconsistent with reports indicating that the BNP did not come to power until after October 2001, the Tribunal Member continued by saying: 'The applicant did not seem confused at all when giving his evidence … However, when the Tribunal put to him that this was not consistent with the letters he had submitted and that the BNP was not in power at the time the case was allegedly filed … he claimed he was unwell …. The Tribunal has not accepted that any illness affected the applicant's ability to give evidence. …' 17 Later, when the Tribunal put to the appellant that it expected him to be able to state four of the aims and objectives of the Awami League of which he claimed to be a member, rather than just two, the Tribunal Member recorded the following: 'Only when the Tribunal put to him that it expected him to be able to state what the aims and objectives were did he say he forgot the others and was not mentally well. The Tribunal has not accepted that the applicant's ability to give evidence was impaired by any condition. …' 18 It is important to record that part of the Tribunal Member's decision appearing under the heading 'Tribunal hearing' and the subheading 'Applicant claims unwell' which was as follows: 'Asked how he had felt before the hearing had started, the applicant said he was not feeling well and had been to a doctor who had given him a report. The Tribunal asked the applicant why he was only presenting the report at that point when the Tribunal had put problems about his evidence to him and not at the beginning of the hearing. The applicant responded that he had not faced this type of "interview" before and did not realise "the situation would be bad". Asked if he told his agent that he was not feeling well and had been to the doctor, the applicant said he had not. The Tribunal queried why he did not think to tell his agent or the Tribunal that he was not feeling well given he claimed to fear for his life and was coming to a hearing to decide his fate. He replied that he "did not realise before" and it was the first time he was facing the Tribunal. Asked why he was not feeling well, the applicant stated that he had back pain. The Tribunal questioned how that affected his ability to recall past events, the applicant repeated that he had backpain which was getting worse, chest pain and a runny nose. The Tribunal again asked how that affect his ability to recall past events, to which he replied that he was not feeling well and so could not recall exact dates. The applicant presented the Tribunal with a prescription dated 2 June 2005 from Dr M K Deva and a referral dated 2 June 2005 from Dr M Kumaradeva for a lumbar spine examination indicating that the applicant had a history of back pain. The addresses on both documents were the same, the signatures of the doctor on each document appear the same thus it seemed to the Tribunal that they were the same doctor but that the doctor's name had been written differently on the two documents. The Tribunal asked what the medication was that had been prescribed, the applicant replied that he did not know what it was for, he said he had back pain and the doctor asked him to have a chest x-ray. The Tribunal asked the applicant how else he would be affected in giving evidence by the backpain besides not being able to recall dates, he stated that he was not feeling very well, felt pressure on his chest, and the pain affected him. The Tribunal then adjourned the hearing and Dr Deva was contacted. Dr Deva was informed that the applicant was attending a Tribunal hearing and had indicated that he had pain which affected his ability to recall matters and give evidence. Dr Deva stated that he was not convinced about the applicant's pain. He said he had seen the applicant about 3 months before and prescribed some medication but the applicant had returned that day seeking something stronger. Dr Deva stated that he was not convinced the pain was genuine and even if he had back pain it would not affect his thinking. The Tribunal resumed the hearing after speaking to Dr Deva and informed the applicant of the content of the conversation with Dr Deva. Asked if he wanted to tell the Tribunal anything he wanted it to take into account when assessing whether his ability to give evidence was affected, the applicant stated that the doctor had not made a final decision about the pain but said the applicant had to get an xray before he could say whether the pain was genuine or not.' 19 The 'prescription dated 2 June 2005 from Dr M K Deva' and the 'referral dated 2 June 2005 from Dr M Kumaradeva for a lumbar spine examination' were plainly documents issued by the same person, namely Dr M K Deva of 662 Bourke Street, Redfern. It is quite obvious that Dr Deva had forms provided for use by him when referring patients to 'REDFERN XRAY' which showed his second name 'Kumara' as part of his surname. In the circumstances, it would have been inappropriate for the Tribunal Member to draw any inferences adverse to the appellant from the production of the two forms which showed Dr Deva's name expressed differently. 20 What is important is that the Tribunal Member's decision was plainly affected by Dr Deva's response to the Tribunal Member who, when seeking information specifically about the appellant, was told by Dr Deva 'that he was not convinced about the applicant's pain' and that 'he was not convinced the pain was genuine' and further Dr Deva's opinion that even if the appellant had back pain it would not affect his thinking. 21 In my opinion the conclusion is inescapable that the Tribunal was bound to give particulars of the information gleaned from Dr Deva to the appellant in writing inviting his comment upon it in accordance with s 424A(1) of the Act. 22 Under s 424A of the Act it is incumbent upon the Tribunal to give notice in writing to an applicant of 'particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review'. 23 The question which arises in the instant case is whether the information obtained by the Tribunal Member from Dr Deva during the adjournment of the hearing referred to above, which was apparently discussed orally with the appellant following the resumption of the hearing, was information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. 24 On 17 August 2005 the appellant filed an Application seeking constitutional writ relief in respect of the decision of the Tribunal in the Federal Magistrates Court of Australia. On 29 November 2005 the appellant filed an Amended Application in the Federal Magistrates Court. In that Amended Application the grounds expressed were as follows: 'That the RRT decision was effected (sic) by jurisdictional error: a. The Tribunal conducted the hearing in bad faith … b. The Tribunal erred in law not asking the applicant the right questions. … c. The Tribunal breached s424A of the Migration Act 1958 Particulars: The Tribunal failed to disclose all information relating to the applicant and his application for protection, which was a reason or part of the reason to affirm decision that was under review.' 25 The Tribunal had in fact sent a letter providing information that may be the reason or part of the reason for deciding that the appellant was not entitled to a Protection Visa. That letter dated 3 June 2005 made no mention of the information obtained by the Tribunal from Dr Deva. The Tribunal's letter elicited a written response from the appellant dated 16 June 2005 but it is unnecessary, for present purposes, to make reference to the information that was given and the responses which were provided. 26 At the hearing before Federal Magistrate Nicholls on 19 September 2006 the appellant sought to read an Affidavit which purported to annex a transcript of the hearing before the Tribunal on 2 June 2005. Counsel for the respondent Minister objected to the Affidavit. The Federal Magistrate decided that the transcript in the form attached to the Affidavit should not be admitted into evidence. However, he gave the appellant an opportunity to provide a transcript in an admissible form with the proper evidentiary context. He also gave the Respondent Minister leave to file any further Affidavit and transcript in reply. The appellant did file an Affidavit of an experienced legal secretary who was competent in transcribing material. Her transcript produced from two tapes generated by the Tribunal was filed with the Federal Magistrates Court on 9 October 2006. That transcript was plainly incomplete in that it makes no mention of the questions which appear to have rattled the appellant and no mention of the discussion with Dr Deva which the Tribunal Member in her reasons indicated had been the subject of discussion with the appellant upon the resumption of the Tribunal hearing. The transcript which became part of the evidence before the Federal Magistrate included on pages 22-3: Member: '… That concludes the hearing. I will be calling the Hearing Officer to turn off the tapes.' Interpreter: 'Can I get a copy of the cassette.' Member: 'Yes, ask the Hearing Officer.' Member: 'Can you make a copy of the tapes as he would like a copy of the tapes.' 27 There is some mention made of the appellant's alleged inability to think clearly as a result of back pain said to have been experienced by him. At page 9 of the transcript the following appears: Member: '… I am asking you to explain that obvious inconsistency, you made no mention of the Beanibazar College in your protection visa application.' Appellant: '… I didn't mention in my application because at that time I was very sick, I thought I will add it later bit (sic) it is my mistake. He was mentally sick at the time.' Member: 'When were you mentally sick when you wrote this application?' Appellant: 'When I applied to DIMA.' Member: 'Do you have any medical evidence that you were sick at the time you wrote the protection visa application?' Appellant: 'I don't have a medical certificate because at that time I was mentally upset.' 28 In relation to the aims of the Awami League the transcript recorded at pages 19 – 20: Member: 'I put to you that if you were a member of the Student Wing of the Awami League and if you were an Executive Member and Organising Secretary with many responsibilities as is claimed in the letter from the Chatra League you would have been able to tell me those four aims of the Awami League.' Appellant: 'I told you before that I am mentally upset, mentally not very well. I can't remember everything.' 29 On page 20 the transcript records: Member: '… I do have concerns whether you have been a truthful witness and I have some concerns about the documents you have provided which I have put my issues and concerns to you. … Is there anything you want to say about that?' Appellant: 'Your comments might be true but my two comments is genuine.' Member: 'Ok now is this something that I can keep or did you want me to make copies.' Appellant: 'You can keep it.' Member: 'I will give you back your prescription and you xray material …' 30 The Minister elected not to put on any evidence in the Federal Magistrates Court in the form of a transcript of what transpired at the Tribunal hearing. 31 Federal Magistrate Nicholls dismissed the appellant's Application with costs fixed in the amount of $7,200. 32 The Federal Magistrate dealt with the s 424A issue in respect of the appellant's claims of mental difficulties which were attributed to his claims of back pain in paragraphs [44] and [45] of his reasons for judgment as follows: '44. It is clear on a plain reading of the Tribunal's decision record that this issue was relevant to the Tribunal's concern, as Dr. Allars has submitted, as to whether it should continue with the hearing, not whether it went to the applicant's credibility or his claims more generally. As such that it could not be said that the information obtained from the relevant doctor was information which formed a part of the reason for affirming the delegate's decision. The Tribunal's concern was quite properly whether the applicant's ability to present his claims, both in his protection visa application, and the hearing, was affected by his claimed medical condition. It was open to the Tribunal, as it did, to accept the applicant's evidence as it related to having consulted the doctor and being prescribed medicine. But it was equally open to find that there was no evidence before it that this, or any relevant medical condition, existed as at the time of the making of the application for a protection visa. Nor, critically, whether such an condition (given that it related to a "lumbar spine examination") would have prevented, or more properly affected, the applicant's ability to give evidence at the hearing. 45. Further, the Tribunal was entitled, in all the circumstances, to take into account the applicant's demeanour at the hearing and that the applicant only raised the issue of the medical evidence after the Tribunal had put to him questions relating to problems with his evidence. Further, and in my view critically, the presentation by the Tribunal of this issue coming as it does at the beginning of its "Findings and Reasons", clearly shows a separation in the Tribunal member's mind between the need to focus on whether it was fair to continue the hearing, and the separate issue once it had settled that question, of the applicant's credibility. I cannot see that the Tribunal's findings on the credibility of the applicant's claims was related, even in part, to the medical evidence provided by the applicant. The two issues are clearly separate in the Tribunal's analysis. I should also note that the claims as to his condition were made by the applicant himself (particularly the claim as to his mental condition as at the time of making the protection visa application) and all information provided by the applicant to the Tribunal as such fell within 424A(3)(b). In all therefore I agree with Dr. Allars's submission and this aspect of the complaint is also not made out.' 33 What has not been addressed by his Honour in the above analysis is the relevance of Dr Deva's opinion concerning the appellant's ability to think clearly as a result of his alleged pain and Dr Deva's doubt as to whether the alleged pain was genuine. Such information was specifically about the appellant. It was not given by the appellant to the Tribunal for the purpose of the Application, rather, it was obtained by the Tribunal. It cannot be said that it was obtained purely and simply to enable the Tribunal to determine whether or not it was reasonable to adjourn the hearing before it. On three separate occasions in the Tribunal's 'FINDINGS AND REASONS' the Tribunal made findings that the inconsistencies in the appellant's account of past events and other matters could not be explained by some physical or mental condition which impaired his ability to give evidence. Such a finding materially affected the Tribunal's assessment of the appellant and his claims in respect of his alleged fear of persecution and the foundation for it. 34 Given the view which I have formed in respect of the Tribunal's failure to give particulars in writing to the appellant of information in accordance with s 424A(1)(a) of the Act, it is unnecessary to consider in greater detail the other issues raised in the Notice of Appeal. Suffice it to say that apart from the s 424A issue I have been unable to discern any relevant jurisdictional error on the part of the Tribunal. 35 In the circumstances, the appeal should be allowed, the orders in the Court below set aside and constitutional writ relief granted. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 4 April 2007 The Appellant appeared in person. Counsel for the First Respondent: Mr P L Carr Solicitor for the First Respondent: DLA Phillips Fox The Second Respondent did not appear. Date of Hearing: 7, 8 March 2007 Date of Judgment: 4 April 2007