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Minister for Immigration and Citizenship v SZIAI [2009] HCA 39Last Updated: 24 September 2009

Immigration – Refugees – Review by Refugee Review Tribunal (“RRT”) – Whether failure to make certain inquiries was unreasonable or constituted failure to conduct review within meaning of Migration Act 1958 (Cth), s 414 – Whether failure to inquire constituted jurisdictional error.

 Immigration – Refugees – Review by RRT – Where RRT received allegation that documents provided by visa applicant were “fake & forged”, invited applicant to comment in writing, but failed to invite him to further hearing – Whether such failure amounted to denial of procedural fairness, breach of Migration Act 1958, s 425, or failure to conduct review within meaning of Migration Act 1958, s 414 – Whether allegation of forgery raised new “issue” within meaning of Migration Act 1958, s 425.

HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

 NISTER FOR IMMIGRATION AND CITIZENSHIP APPELLANT

 AND

 SZIAI AND ANOR RESPONDENTS

Minister for Immigration and Citizenship v SZIAI
[2009] HCA 39
23 September 2009
S37/2009

ORDER

 1. Appeal allowed.

1.  Set aside orders 1 to 5 of the orders made by the Federal Court of Australia on 8 September 2008, and in lieu thereof order that:

(a) order 2 of the orders made by the Federal Magistrates Court of Australia on 18 June 2008 be set aside; and

 (b) the appeal be otherwise dismissed.

1.  Appellant to pay the costs of the first respondent’s appeal to this Court.

On appeal from the Federal Court of Australia

 Representation

 S J Gageler SC, Solicitor-General of the Commonwealth with G T Johnson and G R Kennett for the appellant and for the Attorney-General of the Commonwealth intervening (instructed by Australian Government Solicitor)

 N J Williams SC with A M Mitchelmore for the first respondent (instructed by Dobbie and Devine Immigration Lawyers Pty Ltd)

Submitting appearance for the second respondent.

Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Migration Act 1958 (Cth), ss 414, 424, 424A, 425.

FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ.

Introduction

1. The functions, powers and duties of the Refugee Review Tribunal (“the Tribunal”) are set out in Pt 7 of the Migration Act 1958 (Cth) (“the Migration Act“). When the Tribunal receives a valid application for the review of an “RRT-reviewable decision” under the Migration Act, it must review that decision[1]. The class of “RRT-reviewable decisions” includes decisions by delegates of the Minister for Immigration and Citizenship (“the Minister”) refusing the grant of protection visas[2]. In the exercise of its review function, the Tribunal may obtain such information as it considers relevant[3]. In this sense it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act[4].
2. In this case the Federal Court, on appeal from the Federal Magistrates Court, quashed a decision of the Tribunal on the erroneous basis that it had committed jurisdictional error by unreasonably failing to undertake its own inquiries into certain matters. Those matters related to the authenticity of documents, provided by the applicant for review, which had been impugned by third party information of which the applicant had been given notice, and to which he had replied in writing[5]. The Minister’s appeal against the decision of the Federal Court must be allowed. A contention that the Tribunal had a duty to invite the applicant for review to an additional hearing to deal with the third party information is rejected.

Factual and procedural history

1. On 11 February 2008, the Tribunal affirmed a decision of a delegate of the Minister to refuse a protection visa to SZIAI, a citizen of Bangladesh. SZIAI claimed to have converted from the Sunni Muslim faith to become an Ahmadiyya Muslim. He said he had been an active Ahmadi and had been the subject of threats, including threats to his life, from Sunni Muslims. He claimed to have a well-founded fear of persecution if he were to return to Bangladesh.
2. In coming to its decision, the Tribunal had regard to a letter from the Ahmadiyya Muslim Association Australia Inc (“the Association”) responding to an inquiry from the Tribunal about whether SZIAI was known to the Ahmadiyya Muslim Jamaat in Bangladesh (“AMJ Bangladesh”)[6]. The Tribunal had sent to the Association copies and translations of certificates produced to it by SZIAI and signed by persons purportedly associated with the Ahmadiyya Muslim Jamaat at Khulna. One of the certificates said that SZIAI had joined the Jamaat there on 1 January 2000. Both certificates said that he had taken a responsible role in the Jamaat and was always engaged in its activities. Both certificates bore mobile telephone numbers, apparently those of their authors.
3. The Association responded to the Tribunal by letter dated 10 January 2008 advising that it had received information from the AMJ Bangladesh. It enclosed a letter signed by Mobasherur Rahman, the National Ameer of the AMJ Bangladesh. That letter said, inter alia:

“Please refer to your letter No 386 dt 25.11.07 regarding [SZIAI]. For your kind information on enquiry our Khulna Jamaat informed me that they could not find out any such name in their record. Both the certificates submit by him are fake & forged. Moreover as you know local Ameer/Presidents can only issue certificates for transfer of a member from one local Jamaat to other Jamaats within the country. Only National Ameer can issue a certificate for international travel/transfer of a member.”

1. On 14 January 2008 the Tribunal, acting under s 424A of the Migration Act, sent a lengthy letter to SZIAI’s solicitors inviting him to “comment on information that the Tribunal considers would, subject to any comments you make, be the reason, or a part of the reason, for affirming the decision under review.” A number of matters were identified. One of those matters was the letter from the National Ameer. A copy was enclosed. The Tribunal said in its letter that the advice from the National Ameer might lead it to conclude that there was no truth to SZIAI’s claims of fear of persecution by reason of his religion if he were to return to Bangladesh.
2. SZIAI’s solicitors wrote back to the Tribunal on 29 January 2008 saying:

“We refer to the RRT’s recent correspondence, inviting comment in relation to information received that suggests that the applicant is not an Ahmadi.
We are instructed to inform the RRT that the applicant disagrees with the information forwarded and states that he is an Ahmadi. He cannot, however, otherwise prove that to be so.
If you have any enquiries please contact me.”

1. In its reasons for decision the Tribunal referred to the correspondence from the Association and the letter from the National Ameer. It set out what it had said to SZIAI in its letter of 14 January 2008 and noted the response. Having regard to the information referred to in its letter of 14 January 2008, the Tribunal concluded that SZIAI was not a witness of the truth and that there was no truth to the claims he had made in support of his application for a protection visa.
2. An application for judicial review was dismissed by the Federal Magistrates Court on 18 June 2008[7]. SZIAI appealed to the Federal Court. On 8 September 2008, Flick J ordered that the appeal be allowed, the orders made in the Federal Magistrates Court be set aside, the decision of the Tribunal be quashed and the matter be remitted to the Tribunal to be determined according to law[8]. Special leave to appeal against his decision was granted by this Court on 13 February 2009. It was granted upon the undertaking by the Minister that he would not seek to displace the costs orders in favour of SZIAI in the Federal Court and that he would bear the reasonable costs of SZIAI of this appeal, including the costs of the special leave application.

The reasoning in the Federal Court

1. Flick J correctly eschewed any suggestion that the power of the Tribunal to make inquiries imposed upon it any duty or obligation to do so[9]. However he also said that “jurisdictional error may be exposed by a failure to inquire and that such a failure may render a decision manifestly unreasonable”[10]. The circumstances in which a Tribunal decision would be set aside on such grounds might be “a confined category of case”[11].
2. His Honour was evidently satisfied that the case before him fell within such a category. The authenticity of the certificates had been placed in issue by the information which the Tribunal had obtained from the Association. The issue to which they were directed was “centrally relevant to the decision reached”. He held with “considerable reservation” that the Tribunal should have made an inquiry of the authors of the certificates[12]. He concluded that the Federal Magistrates Court had erred in not holding that the Tribunal’s decision was vitiated by reason of its failure to make inquiries.

The issues

1. The questions raised by the grounds of appeal and by a notice of contention filed on behalf of SZIAI were:
   1. Whether the Tribunal had committed jurisdictional error by not making its own inquiries in relation to the allegation that the certificates provided by SZIAI were forgeries.
   2. Whether the Tribunal denied procedural fairness, failed to comply with s 425 of the Migration Act, or failed to conduct the review required by s 414 in failing to invite SZIAI to a further hearing following receipt of the allegation that the two documents provided by him to the Tribunal were “fake & forged”.

The jurisdiction of the Federal Magistrates Court

1. The statutory jurisdiction of the Federal Magistrates Court is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution“[13]. The Tribunal’s decision was a “migration decision”[14]. The Federal Magistrates Court could therefore grant relief by way of prohibition or mandamus and, ancillary to such relief, could issue certiorari to quash the decision. However it could only do those things if the Tribunal was shown to have committed jurisdictional error[15].
2. The scope of judicial review in respect of the decision of the Tribunal thus differed from that provided by s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act“) where the grounds of review are laid out without confinement to “jurisdictional error”. Some of the decisions relied upon in the Federal Court turned upon the application of s 5.
3. It has, however, been said in this Court[16] with reference to s 75(v) and jurisdictional error, that where a statutory power is conferred the legislature is taken to intend that the discretion be exercised reasonably. The argument in the present appeal proceeded on the footing that “Wednesbury unreasonableness”[17] could give rise to jurisdictional error.

Tribunal inquiry and jurisdictional error

1. SZIAI complained that failure by the Tribunal to inquire rendered its decision “manifestly unreasonable”. That complaint involves several steps and assumptions. Was there an obligation or duty imposed by the Migration Act to make the inquiries in question? If so, was there deficiency in process which was so linked to the decision reached as to make it manifestly unreasonable?
2. It was not contended at any stage of this litigation that the Tribunal was obliged to exercise the power conferred by s 424 of the Migration Act to “get any information that it considers relevant” and no other specific source of such an obligation was identified. Rather, reliance was placed upon what was said to be the “inquisitorial” nature of proceedings in the Tribunal.
3. It has been said in this Court on more than one occasion that proceedings before the Tribunal are inquisitorial, rather than adversarial in their general character[18]. There is no joinder of issues as understood between parties to adversarial litigation. The word “inquisitorial” has been used to indicate that the Tribunal, which can exercise all the powers and discretions of the primary decision-maker,[19] is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the Tribunal as a contradictor. The relevant ordinary meaning of “inquisitorial” is “having or exercising the function of an inquisitor”, that is to say “one whose official duty it is to inquire, examine or investigate”[20]. As applied to the Tribunal “inquisitorial” does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal’s functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to “review the decision” which is the subject of a valid application made to the Tribunal under s 412 of the Act.
4. The observation in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[21] that the Tribunal was “bound to make its own inquiries and form its own views upon the claim which the appellant made”[22] was informed by the context, which concerned the requirements, in the circumstances, of procedural fairness. The Court held that procedural fairness had required the Tribunal to tell the applicant the substance of certain allegations made against him by a third party and to ask him to respond to them[23].
5. The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.
6. Observations by Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs[24], which were said by his Honour to be tentative and unnecessary for the decision in the case, may support such a proposition. However, Wilcox J was dealing with the grounds of review provided by s 5 of the ADJR Act; in particular s 5(1)(e) and s 5(2)(g), which he described as concerned with the manner of exercise of the power in question. Nevertheless, the inquiry under these provisions, as he framed it, was ultimately directed to the unreasonable exercise of a power within the meaning of par (g) of s 5(2).
7. The discussion by Wilcox J in Prasad has been adopted or cited in a number of later cases in the Federal Court. The decisions, not all of which were founded upon the ADJR Act, were collected by Kenny J in Minister for Immigration and Citizenship v Le[25]. In the course of deciding to grant prohibition and certiorari in Ex parte Helena Valley/Boya Association (Inc)[26], the Full Court of the Supreme Court of Western Australia cited Prasad as authority for the necessity for a decision-maker to make inquiries in order to discover appropriate material if it be readily available.
8. The proposition which may emerge from Prasad has not been the subject of full consideration in this Court, whether in litigation under the ADJR Act, or any other statutory regime or under s 75(v) of the Constitution. Some observations by Mason CJ in Chan v Minister for Immigration and Ethnic Affairs[27] have been taken as an indication of a need for decision-makers to make inquiries in relation to claimed changes in the political circumstances in the home country of a person seeking protection as a refugee. However, the legal consequences of a failure to inquire were not discussed in that judgment. In Minister for Immigration and Ethnic Affairs v Teoh[28], Mason CJ and Deane J accepted the correctness of the approach in Prasad in “an appropriate case”[29]. Teoh was not such a case as reliance was not placed on the ground of review under the ADJR Act which was considered in Prasad. McHugh J also made reference to Prasad and other Federal Court decisions to similar effect. But, like Mason CJ and Deane J, he found them inapplicable in Teoh[30]. In Abebe v The Commonwealth[31], Gummow and Hayne JJ rejected a submission that the Tribunal in that case should have made further inquiries. They did so on the basis that “[n]o plausible and possible line of inquiry was suggested”[32]. They did not think it necessary to consider the premise of the submission, namely that the Tribunal was under an obligation to make further inquiries. Nor was it necessary to consider the limits of so-called Wednesbury unreasonableness[33].
9. Mason CJ and Deane J in Teoh also rejected the proposition that failure by a decision-maker to initiate inquiries could constitute a departure from common law standards of natural justice or procedural fairness[34]. It is difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law. The facts of this case, in any event, even considered without reference to s 422B of the Migration Act, do not show a basis for a complaint of want of procedural fairness.
10. Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction[35]. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
11. The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the Tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the Tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error.
12. No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the Tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.

Conclusion

1. For the preceding reasons this appeal should be allowed and the decision of the Federal Court set aside.
2. A constitutional point raised about the validity of s 422B of the Migration Act does not need to be considered, having regard to the conclusions reached above on the procedural fairness arguments.
3. HEYDON J. The crucial controversies between the parties in this Court turned on two arguments advanced by the first respondent (“the respondent”).

The respondent’s first argument: failure to make inquiries

1. The first argument related to a failure of the Refugee Review Tribunal (“the Tribunal”) to make certain inquiries of Mr Nuruzzaman, Mr Hossain and the Ahmadiyya Muslim Association Australia Inc[36]. Mr Hossain signed a so-called “certification” dated 7 August 2006 produced to the Tribunal by the respondent as evidence of his involvement in the activities of an Ahmadiyya Muslim Jamaat in Bangladesh. Mr Nuruzzaman signed another so-called certification of the same date produced by the respondent for the same purpose. These certifications were frequently called “certificates” in argument, and that description will be employed below.
2. On 10 January 2008 the Ahmadiyya Muslim Association Australia Inc informed the Tribunal that it had received certain information about the respondent. The information was contained in a letter of 8 January 2008 from the National Ameer of the Ahmadiyya Muslim Jamaat, Bangladesh. The letter said: “our Khulna Jamaat informed me that they could not find out [the respondent's] name in their record.” The letter also said: “Both the certificates submit by him are fake & forged.” The respondent submitted that the failure of the Tribunal to make the inquiries was an error going to jurisdiction.

The respondent’s second argument: new “issues”

1. The second argument of the respondent was that an alternative jurisdictional error had been committed by the Tribunal. The argument pointed to the Tribunal’s duty under s 425(1) of the Migration Act 1958 (Cth) (“the Act“). It provides:

“The Tribunal 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.”

In isolating the point of the respondent’s second argument, it is necessary to bear in mind the procedural background.

The background

1. The original decision of the appellant’s delegate refusing the respondent the protection visa he sought was made as long ago as 18 August 2005. This appeal is the culmination of the respondent’s third attempt to have that decision reviewed in his favour. The first attempt was an application to the Tribunal followed by an oral hearing on 16 November 2005. It resulted in the Tribunal affirming the delegate’s decision on 8 December 2005. However, that decision of the Tribunal was quashed by consent orders made by the Federal Magistrates Court. A second hearing then took place on 13 September 2006 before a differently constituted Tribunal. On 26 October 2006 that Tribunal affirmed the delegate’s decision. However, the respondent again enjoyed success in the Federal Magistrates Court: the second Tribunal’s decision was quashed. A third hearing then took place before a differently constituted Tribunal on 9 November 2007. On 19 February 2008 that Tribunal upheld the delegate’s decision. In essence it rejected all the respondent’s claims on credibility grounds. Although an application for judicial review to the Federal Magistrates Court failed, the respondent succeeded in obtaining an order from the Federal Court of Australia allowing an appeal. From that order this appeal is brought.
2. On what basis, then, did the respondent contend that the Tribunal should have given him a hearing additional to the third hearing he received on 9 November 2007? The basis is that a new “issue” arose after that hearing. At that hearing the Tribunal had before it Mr Nuruzzaman’s certificate (sent on 25 August 2006) and Mr Hossain’s certificate (handed over at the hearing). The Tribunal questioned the authenticity of the certificates. It questioned the failure of the respondent to produce a letter from the Ahmadiyya Muslim Association Australia Inc confirming his faith and practice as an Ahmadi. It requested the respondent’s consent to its contacting that Association. Five days later, on 14 November 2007, the respondent’s representatives conveyed that consent (although they also submitted that the Tribunal was biased – an allegation not now persisted in). Accordingly, on 15 November 2007 the Tribunal sent a letter to the Ahmadiyya Muslim Association Australia Inc enclosing the certificates and asking various questions. On 10 January 2008 that Association responded, enclosing the letter of 8 January 2008 from the National Ameer of the Ahmadiyya Muslim Jamaat, Bangladesh, alleging that Mr Nuruzzaman’s certificate and Mr Hossain’s certificate were “fake & forged”. The new “issue”, creating a duty on the Tribunal to invite the respondent to a further hearing, was said in written submissions to be whether the certificates were in truth “fake & forged”. In oral argument it was submitted that another new “issue” had arisen from the 8 January 2008 letter – whether or not the respondent’s name was in the Khulna Jamaat records.

Failure to make further inquiries of Mr Nuruzzaman, Mr Hossain or the Ahmadiyya Muslim Association Australia Inc

1. Whatever the general duty of the Tribunal to make inquiries, and whatever the impact of that duty might be on the conduct of the Tribunal in other circumstances, in the circumstances of this case there is no doubt that the Tribunal was not obliged to make any more inquiries than it did. Hence it is not necessary to seek to formulate that duty in terms capable of application in other circumstances.
2. The third Tribunal decision. The Tribunal was not obliged to make any more inquiries than it did for the following reasons. The third Tribunal decision occupied 28 closely typed pages. The operative part of it began by analysing in detail the way in which the respondent had put his case before the appellant’s delegate. That case was that though he had been brought up as a Sunni Muslim, he had converted to the Ahmadi faith on 1 January 2000. He said he was a member of the Ahmadiyya Muslim Jamaat (Qadiani) and had “regularly followed all rituals performances with utmost respect”. He was disowned by his family and close relatives. He and his family had been threatened with death. He had been badly injured by Sunni extremists. He had been subjected to false charges. An essential precondition to acceptance of the case so presented turned on the extent to which the respondent had practised his new faith.
3. The Tribunal then analysed in detail the respondent’s evidence at the first and second hearings. It recorded one event before the second hearing which later assumed significance. The respondent produced an undated certificate from Mr Nuruzzaman “of the Ahmadiyya Muslim Jamaat in Khulna stating that he knew the [respondent], that the [respondent] had taken the bai’at (oath) at the Ahmadiyya Muslim Jamaat on 1 January 2000 ‘by my assistance’ and that from that time he had ‘engaged with all activities of our Jamaat’.”
4. The third Tribunal decision then recorded that after the second hearing the Tribunal requested that the respondent provide the following:

“A letter, preferably in the form of a Statutory Declaration, from the Imam or other senior person at the Ahmadiyya mosque which you attend. This letter should state that you are known to the writer of the letter as a practising member of the Ahmadiyya faith, and should also state how long you have been attending the mosque and/or other activities in connection with the Ahmadiyya religion.”

On 12 October 2006 the respondent’s solicitors replied in the following terms:

“Our client has been unable to obtain the information requested in the RRT’s letter dated 13 September 2006. We note our client’s claim that the mosque is not in the practice of issuing such letters for persons who enter Australia however, merely because the mosque will not issue a letter does not mean that our client is not of the Ahmadiyya faith. The applicant has provided evidence that he was practising his Ahmadiyya faith in Bangladesh. Furthermore, a friend has confirmed that the applicant attends a mosque.”

1. The Tribunal’s reasons for decision then described in detail what had happened at the third hearing. In that hearing the Tribunal revealed considerable doubt about many aspects of the respondent’s claims. It was sceptical about his failure to mention Mr Nuruzzaman in his original application to the delegate or in the first hearing. It inquired how his wife could have been ignorant of his faith if he had attended the Ahmadi mosque every Friday and other Ahmadi meetings. It told the respondent that he had told his story a number of times, and each time it was different. It commented on his failure to get a letter from the Ahmadi mosque he claimed to attend in Australia supporting his case even though it had verified that other applicants for refugee status were Ahmadis. In connection with Mr Nuruzzaman’s certificate, it contended that forged or fraudulently obtained documents were readily available in Bangladesh.
2. The respondent’s criticisms of the letters of 8 and 10 January 2008. In this Court, counsel for the respondent, in his customary careful way, contended that the Tribunal’s conclusion that the respondent was not a genuine Ahmadi was based on its acceptance of what the National Ameer of the Ahmadiyya Muslim Jamaat, Bangladesh, said in his letter of 8 January 2008 enclosed with the Ahmadiyya Muslim Association Australia Inc’s letter of 10 January 2008. It is certainly true that the Tribunal said in its reasons for decision more than once that it relied on “the information referred to in the Tribunal’s letter dated 14 January 2008″, and that letter referred to the National Ameer’s letter of 8 January 2008. Counsel criticised the letters of 8 and 10 January 2008, and the Tribunal’s reasoning, in several ways.
3. First, he said that the Tribunal’s letter of 15 November 2007 to the Ahmadiyya Muslim Association Australia Inc had asked two questions. One was whether the respondent was “known to the Ahmadiyya Muslim Jamaat Bangladesh.” The other was whether the respondent was known to the congregation of the Ahmadi mosque at Marsden Park, which the respondent claimed to attend every Friday. Counsel submitted to this Court that the Association’s reply of 10 January 2008 did not answer either question.
4. Secondly, counsel said that the inability of the Khulna Jamaat in Bangladesh to find the respondent’s name in its records had to be analysed in the light of such questions as whether records of attendance at prayers were kept, and whether they were kept well.
5. Thirdly, counsel contended that the 8 January 2008 letter revealed a misunderstanding about whether the certificates of Mr Nuruzzaman and Mr Hossain were in para materia with the certificates mentioned in the letter which could be issued in order to effectuate a transfer of a member of a Bangladeshi Jamaat to a Jamaat outside Bangladesh.
6. Then counsel said that while a reference to the name of the respondent in the records of the Khulna Jamaat might establish that he was an Ahmadi, an absence of reference to his name did not establish that he was not. Counsel said that the Tribunal failed to understand this.
7. Finally, counsel submitted that “the material before the Tribunal standing alone did not provide a rational foundation for acceptance” of what it said were “two bare assertions”, namely that the certificates were “fake & forged”, and that since the respondent was not listed in the records of the Khulna Jamaat, he had not attended it.
8. The criticisms considered. It is convenient to start with the last criticism. The Tribunal’s conclusions were not arrived at by reference to “the material before the Tribunal standing alone”. They were arrived at by examination of what was said in the respondent’s original application, as well as what happened at each of the three hearings. They were also arrived at in the light of the response given by the solicitors for the respondent to the Tribunal’s letter of 14 January 2008. That letter was long and detailed: it filled seven closely typed pages and contained numerous material enclosures. It set out many alleged inconsistencies and difficulties in the respondent’s position. It called for written comments on the problems identified. In particular, it drew attention to the letter of 8 January 2008, which was one of the enclosures. In the plainest terms it identified the damaging impact which that letter had on the respondent’s overall credibility as well as his particular claim to have been converted. It set 29 January 2008 as the time by which the respondent’s comments should be received, but it indicated that an extension could be requested.
9. The respondent’s solicitors were experienced in the particular field. They did not complain of any shortage of time within which to reply. On 29 January 2008 they duly sent a response. But it was brief. The response merely conveyed the respondent’s disagreement with the information forwarded. The response did not deal at all with the many points made which were distinct from the questions arising from the 8 January 2008 letter. Nor did it deal with that letter. In particular, although the arguments advanced by counsel for the respondent in this Court varied in their power, none of them were drawn to the Tribunal’s attention. Counsel accepted that “some inference” was available from this circumstance. In truth, a very strong inference is available, when the circumstances of the three hearings and the many difficulties being experienced by the Tribunal are borne in mind. The inference is that the Tribunal’s points were not answered because the respondent’s representatives had been unable to obtain from the respondent any instructions enabling them to be answered, and because they were incapable of answer.
10. Further, the course which the respondent now says the Tribunal should have taken was not a course which his representatives asked the Tribunal to take in the letter of 29 January 2008. Although the respondent had noted at the 9 November 2007 hearing that Mr Nuruzzaman’s certificate bore a telephone number which could be used to contact him, it did not seem that he urged that Mr Nuruzzaman actually be contacted. The correctness of the course which the respondent now advocates is diminished by the hindsight attached to it.
11. The respondent’s contention that the Tribunal should have made a further inquiry of the Ahmadiyya Muslim Association Australia Inc is without merit. It is plain that the Association viewed itself as having nothing to add to what it said on 10 January 2008. Its letter of that date needs to be read in the light of what it said in an earlier letter to the Tribunal dated 12 December 2004. It said:

“When any person approaches the National Ahmadiyya Association, for being attested as an Ahmadi, he is asked to provide his antecedents such as his name with parentage, his previous address, the name of ‘Jamaat’ (branch of the Association) to which he belonged, date of joining the Association – if not an Ahmadi by birth, and other information which he may like to supply to help verify his religious status. The information supplied by him is passed on to the National Amir of his country, who then obtains verification from the Amir/President of the local ‘Jamaat’ to which he claims to have belonged. A letter of verification of being an Ahmadi is issued by us, on the basis of information thus obtained. This procedure is followed in all cases unless I happen to know an applicant personally.”

It then said: “There is no other way to have the claim of a person of being an Ahmadi verified.” The letters of 8 and 10 January 2008 revealed that a process of that kind had come to a dead end. Perhaps someone could have asked the Ahmadiyya Muslim Jamaat in Bangladesh why it thought that the certificates were “fake & forged”. But the respondent did not submit that the Tribunal should ask this, and in any event the respondent was in at least as good a position as the Tribunal to put the question. On his case, he was a victim of religious persecution, and he would have been seeking the assistance of senior office holders in the religious denomination being persecuted to avoid that persecution.

1. If the respondent thought that the Association’s answer in its letter of 10 January 2008 was incomplete or rested on a misunderstanding of the Tribunal’s letter of 15 November 2007, those thoughts were not conveyed to the Tribunal with a view to further action on its part. And the respondent’s contention that the issue of whether Mr Nuruzzaman and Mr Hossain had forged their certificates could be resolved by asking them whether they had in fact done so must be rejected. Those questions would not have been likely to receive illuminating answers. The only useful way forward was for the respondent to procure better material, from Bangladesh and Australia, demonstrating that his claims about his faith and practice were well-based. His representatives informed the Tribunal in their letter of 29 January 2008 that this was beyond his capacity.
2. The question of whether the Tribunal should have made further inquiries must be assessed bearing in mind that it was for the respondent to demonstrate that his claims were genuine; it was not for the Tribunal to try to achieve a demonstration that he had failed to achieve. The respondent had procured the certificates in the first place. Those certificates purported to be from gentlemen who knew the respondent. The respondent, it could be assumed, would know whether Mr Nuruzzaman or Mr Hossain could provide any useful information in relation to the letter of 8 January 2008. The respondent was in at least as good a position as the Tribunal to contact those gentlemen. He was represented by solicitors. Despite the letter of 8 January 2008, the respondent did not ask the Tribunal to contact either gentleman. It was not unreasonable for the Tribunal to proceed on the basis that if any further evidence was to be provided in support of the certificates, it would come from the respondent.
3. The failure of the Tribunal to make the inquiries of which the respondent complains was not a jurisdictional error.

Section 425

1. In relation to pleadings filed in conventional litigation, lawyers are familiar with the difficulties that arise in practice in distinguishing between allegations of material fact (which must be pleaded), some kinds of particulars of those allegations (which must be pleaded), other kinds of particulars (which need not be pleaded, but must be supplied in correspondence if requested), and evidence of the material facts so pleaded and particularised. It can be difficult to distinguish between the issues which disagreements about the relevant allegations throw up. Now a proceeding in the Tribunal seeking review of a decision by a delegate of the Minister refusing an application for a visa is not conventional litigation and is not subject to any rules of pleading. But similar difficulties can arise in distinguishing between sub-questions or sub-controversies within an issue and controversies about separate issues. In particular cases much debate could take place about how broadly or narrowly issues should have been, or were, perceived.
2. The first “new” issue: forgery. This appeal is not a suitable occasion on which to explore these problems in general or exhaustive terms. The question whether the certificates were “fake & forged” was not a new issue which arose in a distinct way after the third hearing. In one sense it was arguably only a sub-issue of the general question: was the respondent converted to the Ahmadi faith as he claimed? It was clear from at least the third hearing that the Tribunal had the utmost scepticism about the respondent’s position on that question. But it is not necessary to examine the proposition that forgery was only a sub-issue of the issue as to whether the respondent had been converted. That is because if it is assumed in the respondent’s favour that a wholly unforeseen claim that the certificates were forged which emerged after the third hearing might raise a new issue triggering s 425 – a proposition open to debate – the claim that the certificates were forged in this case was not wholly unforeseen at that third hearing. At the third hearing the Tribunal drew attention to what it regarded as the belated emergence of Mr Nuruzzaman’s asseverations – first in an undated certificate, then in the certificate dated 7 August 2006. The Tribunal also referred, while Mr Nuruzzaman’s certificate and the fabrication of the respondent’s claim to be Ahmadi were under debate, to the supposed ready availability of forged or fraudulently obtained documents in Bangladesh. The respondent in this Court appealed to a distinction between “a general proposition that in a particular country forged documents might be obtained and a specific proposition that these documents were fake and forged.” But the context in which the Tribunal asserted the general proposition indicated that it had in mind the application of it to the particular certificates. It was to meet the supposed ready availability of forged or fraudulently obtained documents in Bangladesh that the Tribunal requested the respondent’s consent to contacting the Ahmadiyya Muslim Association Australia Inc. That was because, as the Tribunal told the respondent, that Association “had told the Tribunal that they would verify a person’s claims with the Ahmadiyya Jamaat to which he claimed to have belonged in Bangladesh so they were able to confirm whether someone was a genuine Ahmadi or not”. That was a reference to the letter of 12 December 2004 quoted above[37].
3. Far from the forgery of the certificates being a fresh issue which arose after the third hearing, it was a live issue at that hearing. Indeed the material which eventually stated in terms that the certificates were forged came to light because of the Tribunal’s concern to bypass the possibility of further forgeries being perpetrated to support the genuineness of the certificates which the Tribunal suspected had been forged.
4. The second “new” issue: the presence of the respondent’s name in the Khulna Jamaat records. The second “new” issue which the respondent contended arose from the 8 January 2008 letter – whether or not the respondent’s name was in the Khulna Jamaat records – was not a new issue. The Tribunal’s reference during the third hearing to the letter of 12 December 2004 from the Ahmadiyya Muslim Association Australia Inc to the Tribunal makes it clear that the question of the status of the respondent with his Jamaat in Bangladesh, to which the Jamaat’s records were relevant, was a live one at the third hearing. It was not a new issue raised after it.
5. The Tribunal was right to give the respondent particulars of the 8 January 2008 letter (pursuant to s 424A(1)(a) of the Act), right to ensure by its very detailed and frank letter of 14 January 2008 that the respondent understood why it was relevant (pursuant to s 424A(1)(b)), and right to invite the respondent to comment on the 8 January 2008 letter (pursuant to s 424A(1)(c)). But the Tribunal was never asked by the respondent to give a fourth oral hearing. Of course, if s 425 imposed a duty, the failure to demand compliance with it would not negate its existence. But that failure does suggest that the application of s 425 to the circumstances of this case was not obvious. And, in truth, no obligation to give a fourth oral hearing, as distinct from an invitation to supply a written response, arose under s 425.

Conclusion

1. The appeal should be allowed.

[2] Migration Act, s 411(1)(c).

[3] Migration Act, s 424.

[4] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at 999 [43] per Gummow and Hayne JJ, Gleeson CJ agreeing at 992 [1]; 207 ALR 12 at 21-22, 13; [2004] HCA 32.

[5] SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372; (2008) 104 ALD 22.

[6] The term “Jamaat” is an Arabic word which means “Assembly”.

[7] [2008] FMCA 788.

[8] [2008] FCA 1372; (2008) 104 ALD 22.

[9] [2008] FCA 1372; (2008) 104 ALD 22 at 25 [18], referring to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; 207 ALR 12.

[10] [2008] FCA 1372; (2008) 104 ALD 22 at 25 [19].

[11] [2008] FCA 1372; (2008) 104 ALD 22 at 27 [25].

[12] [2008] FCA 1372; (2008) 104 ALD 22 at 28 [27].

[13] Migration Act, s 476(1).

[14] Migration Act, s 5 (“migration decision”) read with s 474(2).

[15] Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 508 [82]; [2003] HCA 2; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57.

[16] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 100-101 [40] per Gaudron and Gummow JJ; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 at 221 [30] per Gleeson CJ, Gummow and Heydon JJ; [2003] HCA 56; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 ; [2003] HCA 30; (2003) 77 ALJR 1165 at 1177-1178 [67]- [69] per McHugh and Gummow JJ, 1194 [174] per Callinan J; [2003] HCA 30; 198 ALR 59 at 75-76, 98-99; [2003] HCA 30.

[17] After Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

[18] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at 164 [40]; [2006] HCA 63; Minister for Immigration and Citizenship v SZKTI [2009] HCA 30 at [27], n 19.

[19] Migration Act, s 415(1).

[20] Shorter Oxford English Dictionary, 3rd ed (1973), vol 1 at 1079. See also “inquisitorial system” in Black’s Law Dictionary, 8th ed (2004) at 809, defined as the civil law system of proof-taking “whereby the judge conducts the trial, determines what questions to ask, and defines the scope and the extent of the inquiry”.

[21] (2005) 225 CLR 88; [2005] HCA 72.

[22] [2005] HCA 72; (2005) 225 CLR 88 at 99 [26].

[23] [2005] HCA 72; (2005) 225 CLR 88 at 100 [29].

[24] [1985] FCA 47; (1985) 6 FCR 155 at 167-170.

[25] [2007] FCA 1318; (2007) 164 FCR 151 at 174-176 [65]- [67].

[26] (1989) 2 WAR 422 at 445. Cf Bezzina Developers Pty Ltd v Deemah Stone (Qld) Pty Ltd [2008] 2 Qd R 495 at 511 [53]-[54]; Love v State of Victoria [2009] VSC 215 at [253]- [254].

[27] [1989] HCA 62; (1989) 169 CLR 379 at 391; [1989] HCA 62.

[28] (1995) 183 CLR 273; [1995] HCA 20.

[29] [1995] HCA 20; (1995) 183 CLR 273 at 290.

[30] [1995] HCA 20; (1995) 183 CLR 273 at 321.

[31] (1999) 197 CLR 510; [1999] HCA 14.

[32] (1999) 197 CLR 510 at 578 [194].

[33] Their Honours were in dissent, but their observations were not relevant to the point of their dissent.

[34] [1995] HCA 20; (1995) 183 CLR 273 at 290.

[35] See authorities collected in Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at 453 [189], n 214; [2001] HCA 51.

[36] Some documents give the relevant body that title. Others call it the Ahmadiyya Muslim Association of Australia Inc. For consistency, the title in the text will be employed below.

[37] See above at [50].

Minister for Immigration and Citizenship v SZJGV; Minister for Immigration and Citizenship v SZJXO [2009] HCA 40 (30 September 2009)

Last Updated: 30 September 2009

Immigration – Refugees – Review by Refugee Review Tribunal (“RRT”) – Where RRT not satisfied that visa applicants engaged in Falun Gong-related activities in Australia otherwise than for the purpose of strengthening claims to be refugees – Where RRT drew adverse inferences about visa applicants’ credibility from visa applicants’ participation in Falun Gong-related activities in Australia – Whether Migration Act 1958 (Cth), s 91R(3) permitted RRT to use evidence of conduct in Australia to make findings adverse to visa applicants’ claims to be refugees.

HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, CRENNAN, KIEFEL AND BELL JJ

 Matter No S577/2008

 MINISTER FOR IMMIGRATION AND CITIZENSHIP APPELLANT

 AND

 SZJGV & ANOR RESPONDENTS

 Matter No S578/2008

 MINISTER FOR IMMIGRATION AND CITIZENSHIP APPELLANT

 AND

 SZJXO & ANOR RESPONDENTS

Minister for Immigration and Citizenship v SZJGV
Minister for Immigration and Citizenship v SZJXO
[2009] HCA 40
30 September 2009
S577/2008 & S578/2008

ORDER 

Matter No S577/2008 

1. Appeal allowed.
2. Set aside orders 1 to 4 of the orders made by the Full Court of the Federal Court of Australia on 19 June 2008, and in lieu thereof order:

(a) Set aside order 3 of the orders made by the Federal Magistrates Court of Australia on 15 May 2007 and in lieu thereof order that the first respondent to the application in that Court pay the applicant’s costs of the application. 

(b) Appeal otherwise dismissed. 

1. Appellant to pay the first respondent’s costs of the appeal to this Court.

Matter No S578/2008 

1. Appeal allowed.
2. Set aside orders 2 to 5 of the orders made by the Full Court of the Federal Court of Australia on 19 June 2008, and in lieu thereof order:

(a) Set aside order 2 of the orders made by the Federal Magistrates Court of Australia on 2 July 2007 and in lieu thereof order that the first respondent to the application in that Court pay the applicant’s costs of the application. 

(b) Appeal otherwise dismissed. 

1. Appellant to pay the first respondent’s costs of the appeal to this Court.

On appeal from the Federal Court of Australia 

Representation 

S J Gageler SC, Solicitor-General of the Commonwealth with D H Godwin for the appellant in both matters (instructed by DLA Phillips Fox) 

G T Johnson with D Jordan for the first respondent in both matters (instructed by Fragomen Glogal) 

Submitting appearance for the second respondent in both matters 

Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports. 

Migration Act 1958 (Cth), s 91R(3). 

FRENCH CJ AND BELL J. 

Introduction 

1. The first respondents to these two appeals each applied unsuccessfully to the Minister for Immigration and Citizenship (“the Minister”) for protection visas under the Migration Act 1958 (Cth) (“the Migration Act“). They were also unsuccessful before the Refugee Review Tribunal (“the Tribunal”) which affirmed the decisions. The Federal Magistrates Court dismissed their applications for judicial review of the decisions of the Tribunal. They succeeded, however, in persuading the Full Court of the Federal Court that the Tribunal had erred by taking into account, adversely to them, and contrary to s 91R(3) of the Migration Act, conduct in which they had engaged in Australia.
2. The first respondents’ success before the Full Court turned upon the construction of s 91R(3) which provides:

“For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.”

1. The question posed by these appeals is whether s 91R(3) prohibits a decision-maker, in making the determination contemplated in par (a), from drawing inferences adverse to a visa applicant based on the applicant’s conduct within Australia unless the condition referred to in par (b) is satisfied.
2. The factual and procedural history leading to these appeals and the background to the enactment of s 91R(3) have been set out in the judgment of Crennan and Kiefel JJ. The appeals should be allowed and orders made in the terms which they propose. Our reasons for coming to that conclusion depend primarily upon the construction of par (a).

The construction of s 91R(3) 

1. The construction of s 91R(3) begins with the ordinary and grammatical sense of the words having regard to their context and legislative purpose. That purpose in this case, as shown in the reasons of Crennan and Kiefel JJ, was to overcome the effects of decisions of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v Mohammed[1] and Minister for Immigration and Multicultural Affairs v Farahanipour[2]. Those decisions concerned cases in which the applicant for a protection visa had deliberately engaged in conduct within Australia calculated to strengthen his claim for protection under the Refugees Convention[3] by enhancing the risk of persecution if he were to be returned to his country of origin[4]. In each case the Full Court held that although such bad faith conduct might well lead to adverse findings about an applicant’s credibility, it did not automatically bar the claim for a visa which would have to be assessed by reference to Australia’s obligations under the Refugees Convention.
2. Section 91R is concerned with the application of the criteria in Art 1A(2) of the Refugees Convention to determining whether a person is a refugee within the meaning of that Article and to whom Australia owes “protection obligations” within the meaning of s 36 of the Migration Act. The first two sub-sections of s 91R are closely related. Section 91R(1) limits the range of circumstances in which apprehended harm will be characterised as persecution for the purposes of Art 1A(2). Section 91R(1)(b) requires that such persecution involve serious harm to the person and s 91R(2) sets out a non-exhaustive list of instances of serious harm.
3. Section 91R(3) stands apart from the two preceding sub-sections. Unlike them, it does not define limits to be applied, for statutory purposes, to the criteria in Art 1A(2). Rather it operates as an awkwardly framed command to the world by the use of “disregard” in an imperative sense. Section 91S, which concerns “membership of a particular social group” as an occasion of apprehended persecution in Art 1A(2), is drafted along similar lines. The command in s 91R(3) is clearly directed, although not expressly, to the Minister (and therefore to the Minister’s delegates) determining applications for protection visas and to the Tribunal in reviewing such decisions. It is in its character as a command to administrative decision-makers that it must be construed. It is not directed to the courts, for the courts are not involved in determining such cases on their merits. But a court, upon judicial review, may be required to determine whether the command, where applicable, has been applied in accordance with its terms properly construed.
4. Section 91R takes its place in a legislative scheme providing means by which Australia can comply with its obligations as a Contracting State under the Refugees Convention. A necessary condition for the grant of a protection visa under the Migration Act is that the applicant is, relevantly, “a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”[5]. The “protection obligations” are not defined but refer to those of Australia’s substantive obligations under the Refugees Convention which can be characterised as protective in nature and imposed with respect to refugees as individuals. They include obligations concerning “the status and civil rights to be afforded to refugees who are within Contracting States” conferred by Chs II-IV and those obligations imposed by Ch V (Arts 25-34)[6]. The substantive obligation of most immediate relevance to a refugee applying for a protection visa in Australia is that imposed by Art 33(1) of the Refugees Convention which provides:

“No Contracting State shall expel or return (‘refouler‘) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

1. The legislative purpose of s 91R(3) as disclosed in the Second Reading Speech is to ensure that an applicant for a protection visa in seeking to demonstrate a well-founded fear of persecution within the meaning of Art 1A(2) cannot place any reliance upon, nor gain any advantage from, conduct engaged in within Australia for the purpose of strengthening his or her claim to meet the criteria of classification as a refugee under Art 1A(2)[7]. Neither that purpose nor Australia’s protection obligations under the Refugees Convention require that such conduct be disregarded where it is adverse to an applicant’s credibility. Such a result would be irrational. A construction of s 91R(3) to avoid that result may properly encompass a departure from the literal or natural and ordinary meaning of the text[8]. If the language be so intractable that it requires a word or words to be given a meaning necessary to serve the evident purpose of the provision, then such a course may be permissible as a “realistic solution” to the difficulty[9]. In the 12th edition of Maxwell’s On the Interpretation of Statutes the approaches which can be taken in dealing with statutory language whose ordinary meaning is plainly at odds with the statutory purpose were explained[10]:

“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning.” (footnote omitted)

This approach is reflected in decisions of the Courts of the United Kingdom. In Inco Europe Ltd v First Choice Distribution[11], Lord Nicholls of Birkenhead restated the need for the Court to correct obvious drafting errors. He referred to the third edition of Cross’ Statutory Interpretation[12]:

“In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.”

The limits of the judicial role, as pointed out by Lord Nicholls, require that the courts “abstain from any course which might have the appearance of judicial legislation.”[13] Three matters of which the court must be sure before interpreting a statute in this way were the intended purpose of the statute, the failure of the draftsman and parliament by inadvertence to give effect to that purpose, and the substance of the provision parliament would have made. The third of these conditions was described as being of “crucial importance”. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation[14].

1.  The construction of s 91R(3) in accordance with its legislative purpose begins with a consideration of the nature of the ministerial determination with which par (a) is concerned. In this respect there are two ways of reading par (a). The first way is to read “whether” as introducing alternatives in the sense of “whether or not”. That reading would apply the command of the sub-section to all processes of reasoning which could lead to determinations favourable or unfavourable concerning the existence of an asserted well-founded fear of persecution within the meaning of Art 1A(2). It accords with the natural and ordinary meaning of “whether” as “[i]ntroducing a disjunctive dependent question or its equivalent expressing doubt, choice, etc between alternatives”[15]. It would require the decision-maker to disregard, for all purposes relevant to a determination of the existence of a well-founded fear of persecution, any conduct engaged in within Australia, however probative of the falsity of an applicant’s claim, unless the condition in par (b) were satisfied. The creation of false documents to support a claim would be an example of such conduct. Such an outcome is improbable and inconvenient to a degree that would be irrational.
2. The Solicitor-General of the Commonwealth submitted that the words “in determining” in par (a) refer to a process undertaken after findings of primary fact have been made and said:

“So after all the facts are found once and for all, what the direction in the section requires is that conduct in fact engaged in by the person in Australia be disregarded, that means simply left out of account, in determining whether, which we would say means as a basis for determining that, such fear of persecution as a person may in fact have is to be characterised in terms of Article 1A(2) as well-founded.”

1. The proposition that s 91R(3) is concerned with the process of determination after the primary facts have been found does not meet the textual difficulty generated by the ordinary meaning of the word “whether”. However, the Solicitor-General’s submission does lead to consideration of an alternative construction, which is to read “whether” as “that”: not introducing alternatives, but indicating only processes of reasoning leading to a favourable determination. The usage is awkward and probably reflects a misuse of the term “whether” in par (a). But such misuse is not entirely without precedent[16]. In this case, the substituted text corrects what would be an obvious drafting error were “whether” to be construed according to its ordinary and natural meaning. On the alternative construction, par (a) hypothesises the existence of a chain of reasoning leading to a determination in favour of the applicant where that determination is based in whole or in part upon inferences drawn from conduct engaged in by the person in Australia. The command in s 91R(3) therefore requires that the decision-maker not apply any such chain of reasoning unless the condition in par (b) is satisfied with respect to the relevant conduct. We consider that to be the correct construction. It meets the purpose of the sub-section and avoids absurd results. Upon that construction the appeals must be allowed.
2. As to what is necessary to satisfy the condition in par (b), we agree with Crennan and Kiefel JJ that an applicant seeking to rely upon conduct engaged in in Australia must show that the conduct was not engaged in solely to strengthen his or her claim. By way of example, conduct in Australia may reflect a continued commitment by the applicant to religious practices followed or political opinions held and expressed in his or her country of origin. It could not be said to have been engaged in solely to strengthen the claim to be a refugee. It might then be relied upon by a decision-maker to infer prior commitment to a particular religious practice or political opinion in the country of origin.

Conclusion 

1. For the preceding reasons the construction adopted by the Full Court of the Federal Court in these appeals was erroneous. The appeals should be allowed and orders made as proposed in the joint judgment of Crennan and Kiefel JJ.
2. HAYNE J. The facts and circumstances giving rise to these appeals are set out in the reasons of Crennan and Kiefel JJ. I need not repeat them.
3. Section 91R(3) of the Migration Act 1958 (Cth) is cast as a direction to disregard certain conduct “[f]or the purposes of the application of this Act and the regulations to a particular person … in determining whether the person has a well-founded fear of being persecuted” for a Convention reason[17]. The sub-section does not identify who is to disregard that conduct. Instead, it specifies the occasion for disregarding the conduct, and identifies that occasion as being “determining whether the person has a well-founded fear of being persecuted”. The sub-section describes what is to be disregarded as “any conduct engaged in by the person in Australia”. Paragraph (b) of s 91R(3) qualifies the generality of that direction to disregard conduct in Australia. More particularly, the direction to disregard conduct in Australia does not apply if the person satisfies the Minister that the person engaged in the conduct “otherwise than for the purpose of strengthening the person’s claim to be a refugee”.
4. The central question in these appeals is whether, if the qualifying provision of par (b) does not apply, the direction to disregard any conduct engaged in by the person in Australia is to be given its literal application. It was not disputed that if par (b) does not apply, conduct of the visa applicant in Australia cannot be used to support the conclusion that the criteria for a protection visa are met. The conduct cannot be used to strengthen the person’s claim to be a refugee. But, if a visa applicant’s conduct in Australia shows, or tends to show, that the person does not meet the criteria for a protection visa, is that conduct to be disregarded?

18 The appellant submitted (in effect) that to construe s 91R(3) as requiring disregard of conduct in Australia that shows or tends to show that protection obligations are not owed to the person in question would be at odds with the evident purpose of the Migration Legislation Amendment Act (No 6) 2001 (Cth) which inserted subdiv AL of Div 3 of Pt 2 (ss 91R to 91X) in the Migration Act. That subdivision made particular provisions about protection visas. It may be accepted that an important purpose of these provisions was to confine the class of persons eligible for protection visas. And subject to whatever qualification may follow from the confinement worked by subdiv AL, it may also be accepted that stating the criterion for grant of a protection visa in s 36(2)[18] by reference to whether Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol reveals that the provisions of the Migration Act which deal with protection visas are to be construed in a way that will enable performance of those international obligations.

1. The task of construing s 91R(3) must begin with its text. In describing the occasion for the disregard required by the sub-section as the occasion of “determining whether” the person has a well-founded fear of being persecuted for a Convention reason, the drafter of s 91R(3) may have had, at the forefront of consideration, the use of conduct in Australia in aid of the conclusion that the person had a well-founded fear. Certainly the qualification provided by par (b) of s 91R(3) points in that direction. But the drafter did not frame the direction to disregard conduct in Australia as a prohibition against using that conduct in aid of one outcome of the determination rather than another. Instead, the drafter stated the occasion for disregarding conduct in Australia as the occasion of determining an issue (whether the applicant has a well-founded fear). By fixing upon the determination of the issue as the occasion for the disregard (rather than upon use of the conduct in aid of a particular outcome of the determination) s 91R(3), in its terms, requires disregard of conduct in Australia that was not engaged in for purposes other than strengthening the claim, regardless of whether the decision-maker would use the conduct for or against the visa applicant.
2. Are the words of s 91R(3) susceptible of another construction? In particular, read in their context and with proper attention to the purposes of the statute as a whole, can the words of the provisions yield the meaning for which the appellant contended in this case? It is well established that “the manifest intention of a statute must not be defeated by too literal an adhesion to its precise language”[19].
3. If, as the Minister submitted, a purpose of subdiv AL was to confine the class of persons eligible for protection visas, reading s 91R(3) literally would not give full effect to that purpose. It would not do that because, although conduct in Australia engaged in only for the purpose of strengthening a claim to a protection visa is to be disregarded if it would in fact strengthen the claim, so too is that conduct to be disregarded even if it would show, or tend to show, that the applicant was not entitled to protection. But the language of s 91R(3) is intractable[20]. It is not possible, in my opinion, to read the language as permitting regard to be had to conduct in Australia, engaged in for the sole purpose of strengthening a claim to a protection visa, if, or to the extent that, it is conduct that shows or tends to show the claim should not be accepted.
4. The Minister did not submit, either in this Court or in the Full Court of the Federal Court[21], that s 91R(3) should be read as prohibiting regard to physical acts undertaken in Australia but permitting consideration of the purpose motivating the conduct. It is therefore not necessary to consider whether the provision could be construed in that way.
5. It was not submitted on behalf of the Minister, or suggested in any way during argument, that the drafter of s 91R(3) had made a mistake or that to read s 91R(3) literally would produce an operation of the Migration Act that warranted the description “capricious” or “irrational”[22]. It is neither capricious nor irrational to disregard certain matters no matter whether they would work for or against the visa applicant. It is neither absurd nor irrational to direct the mind of the decision-maker principally to what the visa applicant did outside Australia by excluding from consideration certain kinds of conduct in which the applicant engaged while in Australia.
6. Absent demonstration that reading the sub-section as it is written leads to capricious or irrational results, there can be no basis for a submission that the words of the sub-section should be recast. The Minister did not submit that s 91R(3) should be read as if the word “that” were substituted for “whether”. Nothing that is said in The Oxford English Dictionary treatment of “whether”, or in any edition of Fowler’s Modern English Usage, supports the view that the word “whether” was misused by the drafter when “that” was intended. The caution which Fowler urged in the entry “doubt(ful)” in the first edition[23] was against usage “contrary to idiom to begin the clause that depends on [doubt or doubtful] with that instead of the usual whether, except when the sentence is negative”. And it is this caution which Sir Ernest Gowers repeated in the second edition[24]. It is altogether too large a step to suggest that this idiomatic distinction in use between “whether” and “that” after “doubt” could support the view that the drafter of s 91R(3), through ignorance or mistake, used “whether” in the command provided by s 91R(3) when “that” was intended. Moreover, even recasting the sub-section in the manner suggested does not lead to the solution proffered. The question which the decision-maker must determine (however it is described) can be determined for or against the visa applicant. Only by assuming that the legislature intended the disregard to work always and only against the visa applicant does the asserted meaning follow.
7. Each appeal should be dismissed with costs.
8. CRENNAN AND KIEFEL JJ. These appeals were heard together. They concern the interpretation of s 91R(3) of the Migration Act 1958 (Cth) (“the Act“) which provides:

“For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.”

1. The evident intention of s 91R(3) is that applicants for protection visas should not be able to make their case for refugee status stronger by evidence of conduct which they have engaged in for that purpose, since their arrival in Australia. The Refugee Review Tribunal (“the Tribunal”) found that in each of these cases that was the reason why the first respondent had undertaken Falun Gong-related activities in Australia. The Tribunal used the evidence of the first respondents’ engagement in these activities, and its findings about their motivation for doing so, to cast doubt upon their claims. A Full Court of the Federal Court held that the terms of s 91R(3) did not permit the Tribunal to have regard to the conduct for that purpose. For the reasons which follow, on its proper construction s 91R(3) does not require a person’s engagement in such conduct, and the reason for it, to be disregarded by a decision-maker for all purposes in connection with the determination of an application for a protection visa.

SZJGV 

1. The first respondent to the first appeal, SZJGV, is a citizen of China who arrived in Australia on 25 January 2006. He applied for a protection visa on 2 February 2006. He claimed to have been a practitioner of Falun Gong in China since 1997 and for that reason to fear persecution if he were to return to China. He said that he had participated in protests against the treatment of Falun Gong practitioners and their families and that he had been interrogated and harassed by the Chinese authorities. His application was refused by a delegate of the Minister and that decision was affirmed by the Tribunal.
2. The Tribunal found that the first respondent had not been a Falun Gong practitioner in China as claimed. It gave as its reasons for that conclusion the first respondent’s lack of detailed knowledge about Falun Gong or Falun Gong exercises, such as would be expected of a person who had been a practitioner since 1997. The Tribunal was unpersuaded by the first respondent’s evidence about his practice of Falun Gong in Australia since April or May 2006, which was after the delegate’s refusal but before the Tribunal hearing. That evidence pointed to the fact that he had only recently been taught how to perform some Falun Gong exercises. The Tribunal found that the first respondent’s interest in Falun Gong was “a recent invention designed to assist him in his endeavour to remain in this country by strengthening his claims …”. The Tribunal considered that s 91R(3) of the Act applied and said that it would disregard the first respondent’s Falun Gong-related activities in Australia.
3. It followed, in the Tribunal’s view, from its rejection of the first respondent’s claim to have been a Falun Gong practitioner in China, that he did not participate in protests and was not harassed by the authorities in that country. It said that, in reaching this conclusion, it took into account some additional reasons.
4. The first reason the Tribunal identified was that the claims were inconsistent with independent information concerning the likely reaction of the Chinese authorities to any protests after July 1999. That information suggested that had the first respondent participated as claimed, he would have been arrested and detained. The second reason involved the shifting nature of aspects of the first respondent’s evidence and an important contradiction in it, which led the Tribunal to the view that he had exaggerated his evidence. The third reason is of particular importance. The Tribunal said that his evidence overall showed a tendency to exaggerate and to tailor it. The Tribunal said that:

“In reaching this view the Tribunal has had regard to his lack of knowledge about Falun Gong, his recent attempts to construct a profile of a Falun Gong practitioner for himself and the contradictions, inconsistencies and the gradual shifts in his evidence regarding his protest activity in China.”

In view of his lack of credibility the Tribunal said that it did not accept that the first respondent suffered any harm amounting to persecution in China by reason of his Falun Gong activities. It said that it was not satisfied that he had a well-founded fear of persecution for a Convention reason and that he was not therefore a refugee. 

SZJXO 

1. The first respondent to the second appeal is also a Chinese national who claimed to have practised Falun Gong since 1997. He arrived in Australia on 22 April 2006. He claimed to have been arrested and detained by police on four occasions in China for staging collective practice exercises, to have been verbally and physically abused and that the police had visited his house and harassed his family. His application for a protection visa was refused by the Minister’s delegate and that decision was affirmed by the Tribunal.
2. There was evidence before the Tribunal that the first respondent had attended Falun Gong practice sites in Australia since May 2006. He submitted to the Tribunal photographs of himself participating in demonstrations in Australia, which involved protests against China and against its treatment of Falun Gong prisoners. He claimed that if he returned to China he would be imprisoned for his involvement with Falun Gong including his participation in protests in Australia.
3. The Tribunal was not satisfied that the first respondent had been a Falun Gong practitioner in China. It considered that his claims lacked credit, in particular because his evidence did not disclose that the Falun Gong faith had importance to his life, it was devoid of significant supporting detail and it did not appear to arise from first-hand experience. The Tribunal did not consider that the first respondent’s involvement in Falun Gong activities since his arrival in Australia meant that he had become a practitioner. It was not satisfied that the reason for his involvement was other than to strengthen his claim to be a refugee and, in accordance with s 91R(3), it proposed to disregard it. In its conclusions concerning the prospect that the first respondent might suffer harm in the future in China, the Tribunal nonetheless referred to that conduct, saying that, given its findings about his motives for his contacts with Falun Gong in Australia, there was no reason to believe that he would practise Falun Gong if he returned to China or have any significant involvement with it there.

The appeals to the Federal Court 

1. Both respondents unsuccessfully sought review in the Federal Magistrates Court, but did not raise any issue concerning the application of s 91R(3). On the appeals to the Federal Court, which were heard together with another matter, the first respondents submitted that despite acknowledging the applicability of s 91R(3), the Tribunal had had regard to the conduct of the first respondents in Australia in determining their claims. In each case the Tribunal had relied upon that conduct in concluding that the first respondents were not refugees. The first respondents argued that if s 91R(3) required a decision-maker to disregard an applicant’s conduct in Australia, then it must be disregarded for all purposes.
2. A Full Court of the Federal Court (Spender, Edmonds and Tracey JJ) agreed with this argument[25]. Their Honours accepted that s 91R(3) could only be applied once primary findings of fact had been made, as the Minister had submitted. It would be necessary for the Tribunal to determine whether the conduct had occurred and, if it had, whether s 91R(3) applied. Their Honours continued[26]:

“Once, however, the adjudication process has commenced and primary facts have been found which include conduct engaged in by the applicant in Australia, then s 91R(3) is engaged. Once engaged, s 91R(3) precludes the decision-maker from having regard to ‘any conduct’ engaged in by the applicant in Australia unless the decision-maker is satisfied that the conduct was engaged in for purposes other than strengthening the applicant’s claim to be a refugee.”

It followed, in the view of the Court, that since s 91R(3) applied in these cases, the conduct could not lawfully be brought into account[27]. The Court said[28]:

 ”Decision-makers are, subject to the proviso in para (b), required to disregard ‘any’ conduct in Australia by an applicant. The conduct is to be disregarded in determining ‘whether’ an applicant has a well-founded fear of persecution for a Convention reason. The conduct may suggest that such a fear is or is not well-founded. In either case it must be disregarded. If the Tribunal brings the conduct into account it will contravene s 91R(3).”

1. The Full Court held that in each case the Tribunal had fallen into jurisdictional error by having regard to the conduct of the first respondents. This was so even though in SZJGV the first respondent’s conduct was used for the limited purpose of assessing the credibility of his claim to be a Falun Gong practitioner[29]. In SZJXO the Court held that the conduct had wrongly been used to determine whether there was any reason to believe that the first respondent would be persecuted should he return to China[30].

The history of s 91R(3) 

1. A statutory criterion for a protection visa is that an applicant be a non-citizen “to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”[31]. A person who falls within the definition of a “refugee” in Art 1A(2) of the Convention relating to the Status of Refugees[32] is such a person. A refugee is there defined as a person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” is unable or unwilling to avail himself of the protection of his country of nationality.
2. Section 91R was introduced into the Act in 2001[33]. As its heading suggests, it is concerned with the element of persecution in the Convention definition. Sub-section (1) concerns the reasons for persecution mentioned in Art 1A(2) of the Convention. It requires, inter alia, that persecution involve serious harm to the person. Sub-section (2) gives examples of what may amount to “serious harm” for the purpose of the preceding sub-section. Sub-section (3) is concerned with the person’s conduct outside their country of nationality as it relates to their claim to have a well-founded fear of persecution.
3. A person who becomes a refugee after leaving their country of nationality or habitual residence is called a refugee “sur place”[34]. A person may become a refugee sur place for different reasons. There may be a change in the conditions of that country after their departure from it, which results in that person developing a well-founded fear of persecution if they were to return to it. A person may also become such a refugee as a consequence of their own activities after their departure because those activities may come to the attention of the authorities in that country[35].
4. Prior to the introduction of s 91R(3), differing views had been expressed about the extent to which the conduct, in Australia, of an applicant for a protection visa could bear upon their claim to refugee status. In some jurisdictions the potential for abuse led to the implication of a requirement of good faith on the part of an applicant seeking protection in accordance with the Convention. On this view, a person who purposefully creates circumstances designed to engage Convention protection is not considered to be a genuine refugee to whom the Convention applies[36]. In other jurisdictions bad faith, whilst considered relevant to credibility, is not considered to automatically disentitle a person to protection on the basis of a well-founded fear of persecution[37]. In Australia the different approaches were taken up, to an extent, in decisions of the Federal Court.
5. In Somaghi v Minister for Immigration, Local Government and Ethnic Affairs[38] Gummow J (with whom Keely and Jenkinson JJ agreed on this point) did not go so far as to suggest that a person who deliberately engages in conduct designed to create the circumstances which might engage Convention protection should be denied the potential status of refugee. His Honour considered that evidence of the actions taken should be excluded from a consideration of a claim to that status. His Honour said that[39]:

“… it should be accepted that actions taken outside the country of nationality or, in the case of a person not having a nationality, outside the country of former habitual residence, which were undertaken for the sole purpose of creating a pretext of invoking a claim to well-founded fear of persecution, should not be considered as supporting an application for refugee status. The fear of persecution, to which the Convention refers, in such cases will not be ‘well-founded’.”

1. Some years later a different view was expressed by Lee J in Mohammed v Minister for Immigration and Multicultural Affairs[40], which was upheld by a Full Court on appeal[41] and followed by the majority in Minister for Immigration and Multicultural Affairs v Farahanipour[42]. Lee J said[43]:

“Consistent with the terms of the Convention, and the obligations undertaken by a contracting state thereunder, recognition of refugee status cannot be denied to a person whose voluntary acts have created a real risk that the person will suffer persecution occasioning serious harm if that person is returned to the country of nationality. In some cases, albeit extraordinary, fraudulent activity by an applicant for refugee status may, in itself, attract malevolent attention from authorities in the country of nationality, giving rise to a well-founded fear that serious harm will occur if that person is returned.”

1. In the Explanatory Memorandum to the 2001 Act it was said that the provision that became s 91R(3) was inserted to deal with sur place claims[44]. It was said that difficulties had arisen in Australian courts where it had been found that a person had acted while in Australia with the specific intention of establishing or strengthening their claim to refugee status[45]. The provision was said to be designed to maintain[46]:

“… the integrity of Australia’s protection process by ensuring that a protection applicant cannot generate sur place claims by deliberately creating circumstances to strengthen his or her claim for refugee status.”

1. The Second Reading Speech confirmed that actions taken after arrival in Australia “will be disregarded unless the minister is satisfied that the actions were not done just to strengthen claims for protection.”[47] In exceptional cases, where a person had acted “purely to strengthen their claims”, an application might nonetheless be granted in the exercise of ministerial discretion[48].

The proper construction of s 91R(3)[49] 

1. The question about s 91R(3) which arises on these appeals, and which must be resolved by construing that provision, concerns the extent of its operation. More particularly, the question is whether sub-s (3) operates to prevent a decision-maker drawing upon evidence about conduct engaged in by an applicant for a protection visa, since their arrival in Australia, and views formed by the decision-maker about the reason why that person engaged in the conduct, to make findings adverse to that person’s claim to refugee status.
2. The statement that the context, general purpose and policy of a statutory provision may be the surest guides to construction[50] is apposite to s 91R(3). Those considerations provide a better guide to the intended operation of sub-s (3) than does resort merely to the language and structure of the sub-section. The modern approach to statutory construction uses “‘context’ in its widest sense”[51]. A consideration of the statutory context within which s 91R(3) operates directs attention to the questions which a decision-maker is required to address in determining an application for a protection visa and what may be involved in that process. Sub-section (3) will deny the use of some evidence to that determination. The extent of the operation of sub-s (3), with that result, is to be determined by reference to its object and what is necessary to achieve it.
3. Before proceeding further, mention should be made of a possible distinction which might be drawn between the person’s motive for the conduct and the conduct itself. Section 91R(3) is expressed to effect an exclusion of conduct, and therefore evidence about conduct, from the determination of whether the person is a refugee. Views formed by the decision-maker about the person’s motives for that conduct are not referred to.
4. The Full Court did not draw a distinction between conduct and motive in determining the operation of s 91R(3). The Court was aware of a possible argument that the decision-maker was only bound to disregard conduct, but did not decide the point[52]. In view of the conclusions reached on the appeals it is not necessary to decide whether such a distinction should be drawn. Sub-section (3) should not be read as requiring that evidence about the person’s conduct be disregarded for all purposes connected with an assessment of their claim. It follows that even if the direction to disregard “any conduct” in sub-s (3) is apt to refer to the motive for the conduct, views formed and findings made concerning that motive are not excluded from the determination.
5. There can be little doubt that s 91R(3) was inserted into the Act to quell the controversy which had arisen by reason of decisions of the Federal Court and that the view expressed in Somaghi was to prevail. The section effects an evidentiary exclusion, which Gummow J had suggested in Somaghi as an appropriate response to deliberate conduct. However his Honour spoke of excluding from the consideration of a decision-maker actions undertaken for the sole purpose of invoking, which is to say creating, a claim to refugee status. When his Honour said that such actions “should not be considered as supporting an application for refugee status”[53] his Honour was speaking of the actions providing the sole evidentiary basis for a claim. The terms of s 91R(3) are expressed differently. They refer to an exclusion of evidence of conduct, the purpose of which is to strengthen a person’s claim to a well-founded fear of persecution.
6. The Full Court was aware of the historical background to s 91R(3)[54], but concentrated upon its language in determining the extent of its operation. The Court considered it to be of significance to the question of the extent of the sub-section’s operation, that its terms extended its application beyond sur place claims, strictly so called. It may be accepted that the section extends to any claim for refugee status, where conduct has been engaged in by a person in Australia and is relied upon in support of that claim. It is not limited to cases in which the conduct in question is undertaken to create the circumstances in which Convention protection might be engaged. However it does not follow that the section operates in the manner suggested by the Full Court, so as to prevent the application of evidence of conduct, or views about that conduct, adverse to the claim.
7. The Full Court may also have been encouraged to focus upon the language of sub-s (3) because, as it noted, there had been a series of cases in that Court and in the Federal Magistrates Court, concerning s 91R(3), in which it had been common ground that it suffered from a lack of clarity[55]. At least so far as concerns the question presently under consideration that cannot be doubted. Sub-section (3) is expressed in a way which focuses upon the evidentiary burden that a person has, to have conduct undertaken in Australia taken into account in support of their claim, not what use the conduct, or the motive for it, may be put to if they are unsuccessful. But the recognition that the answer to the question is not readily provided by the language and structure of sub-s (3) should suggest that the answer may lie in considerations of the sub-section’s object.
8. The proper starting point for a consideration of the operation of the section is the task of the decision-maker under the Act, to which sub-s (3) is addressed, and what it entails. The opening words of s 91R(3) confirm that regard is to be had to the application of the Act as a whole, to the person, in applying sub-s (3). Section 65(1) requires the decision-maker to be satisfied that the statutory criteria for the visa in question are met. The relevant criterion for a protection visa is provided by the Convention definition of a refugee. The determination to which par (a) of s 91R(3) refers, as the subject of the evidentiary exclusion, is that part of the definition of a refugee which refers to a person having a well-founded fear of persecution. That part of the Convention definition of refugee has been held to encompass both subjective and objective elements[56]. The subjective question is whether the applicant for a protection visa has a fear of persecution. If that question is answered in the affirmative, the following question, whether that fear is well-founded, is an objective one[57]. Evidence about the person’s conduct, and their motive for it, may have particular relevance to the subjective question.
9. The decision required by s 65(1) of the Act will require an assessment of the claim by the decision-maker. It will involve the weighing of evidence and information for and against the claim. Much of what is asserted as fact may be unsupported by evidence. Independent information available to the decision-maker may only go so far towards a resolution of the issues which arise. It is well recognised that, in these cases, evidence concerning an applicant’s course of conduct, including inconsistencies in it, and the credibility of the applicant may assume importance. It is unlikely to have been intended by the insertion of s 91R(3) that a decision-maker be prevented from taking such factors into account in the process of determination. As will be shown, the only conduct to which sub-s (3) is directed is that which may be weighed in favour of an acceptance of the person’s claims.
10. The reasons of the Full Court seek to give effect to the terms of the direction in s 91R(3). In considering the conduct which must be disregarded in the determination of “whether” the person has a well-founded fear of persecution, it focused upon the expression “any conduct”. The meaning given to that expression by the Court was significant to the conclusion it reached about the extent of the operation of s 91R(3). It may be inferred from the passage set out above[58] that it approached the meaning of that expression in two ways.
11. First, the Full Court observed that the words “any conduct” were largely unqualified, since they were subject only to the proviso in par (b). How the proviso impacted upon the application of sub-s (3) to conduct in Australia was not discussed. Save for conduct coming within the proviso, on the Full Court’s approach those words could refer to all conduct of any kind. The Court secondly considered the words “any conduct” read with the direction that it be disregarded and held that conduct must be disregarded whether it suggests that a fear is well-founded or not. This is a conclusion as to the intended evidentiary effect of the direction. It therefore depends upon the object of sub-s (3), but that object was not further discussed by the Court. The Court took the words to refer to conduct of any kind regardless of any evidentiary effect it may have.
12. The only qualification which the Full Court admitted to the application of s 91R(3) to conduct was the proviso in par (b), to which attention may now be directed. As will be seen, the inquiry to which it gives rise, and the conclusions thereby reached, are important to an understanding of the operation of s 91R(3).
13. The proviso, in par (b) of s 91R(3), is not expressed to except from the statutory direction conduct of a particular kind. Rather, it qualifies the conduct which may be excepted from the operation of sub-s (3) by reference to the person’s motive. If a person is able to satisfy the decision-maker that the conduct was engaged in for some reason other than to strengthen the person’s claim, the decision-maker may have regard to it. The conduct which the decision-maker is able to take into account is that engaged in “otherwise” than for that purpose or motive.
14. In considering the operation of the proviso in par (b) it is necessary to bear in mind that “the purpose” spoken of is a singular purpose. It is the purpose of strengthening the claim. Sub-section (3) is concerned with conduct which is engaged in for that purpose alone. This meaning accords with the statement by Gummow J in Somaghi[59], that conduct which has as its sole purpose the creation of a claim to a well-founded fear of persecution, should not be taken into account. It is confirmed by references in the Explanatory Memorandum to a person having a “specific intention”[60] and in the Second Reading Speech, to actions undertaken “just” or “purely” to strengthen claims to protection, as being the concern of sub-s (3)[61].
15. It follows that where it is accepted that a person had more than one reason for engaging in the conduct they will satisfy the requirement of the proviso. Such a situation may arise, for example, where a person satisfies the decision-maker that conduct was undertaken in Australia in order to continue the practice of their religion. It will usually follow in such a circumstance that the person’s claim will be strengthened by their engagement in that conduct. In many such cases the person will be conscious of that effect when engaging in the conduct. It could then be said that a reason for the person’s conduct is to strengthen their claim, although it is not the only reason. But because it was not the sole reason for the conduct, the conduct may be taken into account.
16. Paragraph (b) of sub-s (3) is not expressed in terms which require a decision-maker to state a conclusion as to the person’s motive or motives, only whether the decision-maker is satisfied that the person had a motive for the conduct in addition to that to strengthen the claim. Regardless of the conclusion stated, because the person’s sole purpose is the point of reference, the decision-maker will necessarily determine whether the person had only one motive, that to which par (b) refers. And if the decision-maker is not satisfied by the explanation given for the conduct, the decision-maker will have determined that the person’s only motive was the strengthening of the person’s claim.
17. That conclusion raises a fundamental question about what may be taken to be the intended operation of sub-s (3). The decision-maker who has found that a person had only the motive spoken of, in engaging in the conduct, will have at his or her disposal a finding which may be relevant to the person’s credibility. Such a conclusion will have involved a rejection of the explanation tendered. It seems unlikely to have been intended that a decision-maker undertake the inquiry about the person’s motive dictated by sub-s (3), reach a conclusion and then be required to put it out of his or her mind. The result would be to deny the decision-maker evidence or findings which might be influential to the assessment which is at the centre of his or her statutory task. Applying the section in this way would permit a person to overcome difficulties created by the person’s deliberate engagement in the conduct, the motive for which is an issue raised by sub-s (3) itself. It would defeat the object of sub-s (3) which is to prevent claimants from gaining an advantage from conduct undertaken in Australia. The result of such a construction would be both inconvenient and improbable. This may suggest that an alternative to a literal approach, one which more closely conforms to the legislative intent, is preferable[62].
18. To this point discussion has centred upon the answer to the inquiry in par (b), about the motive of the person, in identifying the conduct which sub-s (3) intends to be included or excluded from consideration of a claim to fear persecution. From that viewpoint, engaging in conduct for the relevant motive will result in its exclusion. But the other reason for its exclusion relates to the quality of the conduct itself. Paragraph (b) itself elucidates this meaning of “conduct”. The reason the conduct is to be excluded is that it would have the effect of strengthening the claim, if it were taken into account. The object of sub-s (3) is to deny that evidentiary effect. It requires that evidence of conduct not be applied for the purpose for which it was intended by the person, to strengthen that person’s claim to refugee status where it would have that effect. So understood, sub-s (3) says nothing about evidence of conduct which would have the opposite effect, and is in fact adverse to the claim.
19. The approach of the Full Court was to regard sub-s (3) as engaged once the inquiry in par (b) was answered. This does not give sufficient weight to the underlying objective of sub-s (3). It is necessary to its proper operation that when a decision-maker has found that the sole motive of the person in engaging in the conduct was to strengthen the claim, another question, concerning its evidentiary effect, be addressed. If it is determined that evidence of the conduct would strengthen the person’s claim, it is to be disregarded, consistent with the objective of sub-s (3); if it would not strengthen the claim, it may be taken into account.
20. It is essential that the object of s 91R(3) and the mischief it was intended to remedy be taken into account in construing it[63]. The Full Court referred to that object but did not take it into account in that process, with the result that its operation is wider than can be seen as necessary or intended. True it is that the object or purpose of a statutory provision is more often called in aid of a broad construction, one broader than might be achieved by a literal approach. In this case the object of s 91R(3) requires that the section be read more narrowly[64]. It should not be read as requiring evidence of a person’s conduct in Australia, or that person’s motive for that conduct, to be disregarded for any purpose in connection with the determination of their application for a protection visa. Evidence of that conduct and findings about motive may be applied to discredit the applicant’s claim.

Conclusions 

SZJGV 

1. The Tribunal was not in error in taking into account the deliberate engagement of the first respondent in Falun Gong-related activities in Australia as a matter adversely affecting his credit and as supporting its view that his claim to fear harm from persecution lacked credibility. It did not contravene s 91R(3).

SZJXO 

1. The Tribunal was not in error in taking into account its finding about the first respondent’s motivation for undertaking Falun Gong-related activities in Australia in determining whether he would practise Falun Gong on his return to China and for that reason to fear persecution.

Orders

1.  In each case the appeal by the Minister should be allowed. The orders of the Full Court of the Federal Court in SZJGV should be set aside, save for those by which the Minister is to pay the costs of the appeal and of the review by the Federal Magistrates Court. In SZJXO the orders of the Full Court of the Federal Court should be set aside save for those by which leave to appeal was granted and those by which the Minister is to pay the costs of that application and the appeal, and of the review by the Federal Magistrates Court. In each case there should be an order that the first respondent’s appeal to the Full Court of the Federal Court be otherwise dismissed. In accordance with the undertaking given by the Minister as a condition of special leave there should be a further order in each case that the appellant pay the first respondent’s costs of this appeal.

[2] [2001] FCA 82; (2001) 105 FCR 277.

[3] The Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

[4] In Mohammed the applicant sent a letter to his family in his country of origin containing gratuitous material which, upon its predictable interception by security forces in that country, would alert them to his opposition to the government. In Farahanipour the applicant was found to have arranged for publication of an article in a newspaper in Australia, citing comments by him severely critical of the activities of the government in his country of origin and calculated to bring himself to the attention of the authorities in that country.

[5] Migration Act, s 36(2)(a).

[6] Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1 at 15-16 [42]- [43] per McHugh and Gummow JJ; [2002] HCA 14.

[7] Australia, House of Representatives, Parliamentary Debates (Hansard), 28 August 2001 at 30422.

[8] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2.

[9] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 304 per Gibbs CJ; [1981] HCA 26; Cramas Properties Ltd v Connaught Fur Trimmings Ltd [1965] 1 WLR 892 at 899 per Lord Reid; [1965] 2 All ER 382 at 386.

[10] Maxwell, On the Interpretation of Statutes, 12th ed (1969) at 228.

[11] [2000] UKHL 15; [2000] 1 WLR 586; [2000] 2 All ER 109.

[12] Cross, Statutory Interpretation, 3rd ed (1995) at 103.

[13] [2000] UKHL 15; [2000] 1 WLR 586 at 592; [2000] UKHL 15; [2000] 2 All ER 109 at 115.

[14] [2000] UKHL 15; [2000] 1 WLR 586 at 592; [2000] UKHL 15; [2000] 2 All ER 109 at 115. See also R (Confederation of Passenger Transport UK) v Humber Bridge Board [2004] QB 310 at 326 [53] and 333-334 [82]; R (Crown Prosecution Service) v Bow Street Magistrates’ Court [2007] 1 WLR 291 at 301 [41]-[44]; [2006] EWHC 1763; [2006] 4 All ER 1342 at 1352.

[15] Oxford English Dictionary, 2nd ed (1989), vol XX at 221.

[16] The Oxford English Dictionary, 2nd ed (1989), vol XX at 221 refers to a usage of “whether” which, by “suppression of the second alternative”, introduces a “simple dependent question, and becomes the ordinary sign of indirect interrogation”. The Dictionary refers, by way of example, to Ben Jonson’s epigramme to John Donne “Who shall doubt, Donne, [whether] I a Poet bee, When I dare send my Epigrammes to thee?”. Fowler refers to the misuse of “that” and “whether” in connection with the word “doubtful”: Fowler’s Modern English Usage, 2nd ed (1965) at 139. The usage of “whether” to mean “that” was argued in Pitcher Products Pty Ltd v Country Roads Board [1964] VR 661 and rejected on the basis that there was not “sufficient reason” to depart from the ordinary meaning of the word “whether”: at 666 per Hudson J; see also at 662 per Dean J and 671 per Little J.

[17] Article 1A(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

[18] Section 36(2) provided at the relevant time:

“A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa.”

[19] R v Vasey [1905] 2 KB 748 at 751 quoted by Dixon J in H Jones & Co Pty Ltd v Kingborough Corporation [1950] HCA 11; (1950) 82 CLR 282 at 318; [1950] HCA 11.

[20] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320; [1981] HCA 26.

[21] SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105; (2008) 170 FCR 515 at 528 [25].

[22] Cooper Brookes [1981] HCA 26; (1981) 147 CLR 297.

[23] Fowler, A Dictionary of Modern English Usage, (1926) at 121-122.

[24] See Fowler’s Modern English Usage, 2nd ed (1965) at 139, building on Gowers’ more pithy advice about the word “doubt” in ABC of Plain Words, (1951) at 46: “Idiom requires whether after a positive statement and that after a negative.” Burchfield treated the point differently in the third edition: The New Fowler’s Modern English Usage, 3rd ed (1996) at 229.

[25] SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105; (2008) 170 FCR 515.

[26] SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105; (2008) 170 FCR 515 at 527 [22].

[27] SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105; (2008) 170 FCR 515 at 528 [24].

[28] SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105; (2008) 170 FCR 515 at 528 [24].

[29] SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105; (2008) 170 FCR 515 at 528-529 [27].

[30] SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105; (2008) 170 FCR 515 at 529 [28].

[31] Migration Act 1958 (Cth), s 36(2)(a).

[32] Done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (together here referred to as “the Convention”).

[33] Migration Legislation Amendment Act (No 6) 2001 (Cth), Sched 1.

[34] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, (1979, rev ed 1992) at 22 [94]; Hathaway, The Law of Refugee Status, (1991) at 33; Waldman, The Definition of Convention Refugee, (2001) at [8.102.1].

[35] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, (1979, rev ed 1992) at 22 [95]-[96].

[36] See for example Re HB, Refugee Appeal No 2254/94 (NZRSAA) 21 September 1994, available at http://www.refugee.org.nz/Casesearch/Fulltext/2254-94.htm and in (1995) 7 International Journal of Refugee Law 332.

[37] Danian v Secretary of State for the Home Department [1999] TLR 756; Ghasemian v Canada (Minister of Citizenship and Immigration) (2003) 242 FTR 164 at 170 [31]-[33] per Gauthier J.

[38] [1991] FCA 389; (1991) 31 FCR 100.

[39] [1991] FCA 389; (1991) 31 FCR 100 at 118.

[40] (1999) 56 ALD 210.

[41] Minister for Immigration and Multicultural Affairs v Mohammed [2000] FCA 576; (2000) 98 FCR 405, Spender and French JJ, Carr J dissenting; and see also Hathaway, The Law of Refugee Status, (1991) at 39.

[42] [2001] FCA 82; (2001) 105 FCR 277, Ryan and RD Nicholson JJ, Tamberlin J dissenting.

[43] Mohammed v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 210 at 215 [28].

[44] Australia, Senate, Migration Legislation Amendment Bill (No 6) 2001, Revised Explanatory Memorandum at 10 [27].

[45] Australia, Senate, Migration Legislation Amendment Bill (No 6) 2001, Revised Explanatory Memorandum at 10 [27].

[46] Australia, Senate, Migration Legislation Amendment Bill (No 6) 2001, Revised Explanatory Memorandum at 10 [29].

[47] Australia, House of Representatives, Parliamentary Debates (Hansard), 28 August 2001 at 30422.

[48] Australia, House of Representatives, Parliamentary Debates (Hansard), 28 August 2001 at 30422; and see Migration Act 1958, s 417.

[49] The word “purpose” could be used in different senses in these reasons: to refer to a person’s reason or motive in par (b) of s 91R(3); to refer to the statutory purpose or object of sub-s (3); and to refer to the purposes of the decision-maker in using evidence of conduct. To avoid confusion, in these reasons reference is made to a person’s motive; to the statutory object; and to the decision-maker’s purpose.

[50] Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390 at 397 per Dixon CJ; [1955] HCA 27, referred to in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69] per McHugh, Gummow, Kirby and Hayne JJ; [1998] HCA 28.

[51] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ; [1997] HCA 2.

[52] SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105; (2008) 170 FCR 515 at 528 [25].

[53] Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100 at 118.

[54] SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105; (2008) 170 FCR 515 at 528 [24].

[55] SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105; (2008) 170 FCR 515 at 521 [10].

[56] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at 498 [72] per Gummow and Hayne JJ; [2003] HCA 71; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; [1997] HCA 22.

[57] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at 498-499 [72] per Gummow and Hayne JJ; and see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62.

[58] At [36] of these reasons.

[59] [1991] FCA 389; (1991) 31 FCR 100 at 118.

[60] Australia, Senate, Migration Legislation Amendment Bill (No 6) 2001, Revised Explanatory Memorandum at 10 [27].

[61] Australia, House of Representatives, Parliamentary Debates (Hansard), 28 August 2001 at 30422.

[62] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ.

[63] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ; Acts Interpretation Act 1901 (Cth), s 15AA.

[64] See K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 318-319 per Mason J; [1985] HCA 48; Owners of “Shin Kobe Maru” v Empire Shipping Co Inc [1994] HCA 54; (1994) 181 CLR 404 at 420; [1994] HCA 54; and see Bennion, Statutory Interpretation, 5th ed (2008) at 939.

Minister for Immigration and Citizenship v SZIZO [2009] HCA 37 (23 September 2009)

Last Updated: 23 September 2009

Immigration – Refugees – Review of visa application before Refugee Review Tribunal (“RRT”) – First respondent appointed third respondent as his “authorised recipient” to receive documents in connection with his review – Section 441G(1) of Migration Act 1958 (Cth) (“Act”) required RRT to give review documents to authorised recipient instead of first respondent – RRT gave a notice inviting the respondents to attend a hearing to first respondent but not to authorised recipient – All respondents attended the hearing and no unfairness or prejudice arose from non-compliance with s 441G(1) of Act – Whether non-compliance with procedural steps in s 441G of Act compels conclusion that decision is invalid – Whether circumstances amount to denial of natural justice.

HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, CRENNAN AND BELL JJ

 MINISTER FOR IMMIGRATION AND CITIZENSHIP APPELLANT

 AND

 SZIZO & ORS RESPONDENTS

Minister for Immigration and Citizenship v SZIZO [2009] HCA 37
23 September 2009
S568/2008

ORDER

1.  Appeal allowed.
2. Set aside orders 1 and 2 of the orders made by the Full Court of the Federal Court of Australia on 3 July 2008, and in lieu thereof order that:

(a) order 2 of the orders made by the Federal Magistrates Court of Australia on 5 September 2007 be set aside; and

 (b) the appeal be otherwise dismissed.

1.  Appellant to pay the first to sixth respondents’ costs of the appeal to this Court.

On appeal from the Federal Court of Australia

 Representation

 N J Williams SC with K A Stern for the appellant (instructed by Clayton Utz Lawyers)

 B W Walker SC with B K Nolan for the first to sixth respondents (instructed by the first to sixth respondents)

 Submitting appearance for the seventh respondent

 Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Migration Act 1958 (Cth), ss 422B, 425A, 441A, 441G.

1. FRENCH CJ, GUMMOW, HAYNE, CRENNAN AND BELL JJ. A decision made by the appellant, the Minister for Immigration and Citizenship (“the Minister”), or his delegate, refusing to grant a protection visa to an applicant who is physically present in the migration zone is reviewable by the Refugee Review Tribunal (“the Tribunal”)[1]. The conduct of the review is governed by the provisions of Div 4 of Pt 7 of the Migration Act 1958 (Cth) (“the Act“). Section 422B(1) provides that the provisions of Div 4 are taken to be an exhaustive statement of the requirements of the natural justice hearing rule (“the hearing rule”) in relation to the matters that they deal with. The manner of giving and receiving documents in connection with the review is governed by the provisions of Div 7A of Pt 7 of the Act. Section 422B(2) provides that the provisions of Div 7A, in so far as they relate to the conduct of reviews under Div 4, are to be taken to be an exhaustive statement of the hearing rule in relation to the matters that they deal with. An applicant for review may appoint a person, an “authorised recipient”, to receive documents in connection with the review on his or her behalf. In the event that an applicant nominates an authorised recipient, the Tribunal is required to give review documents to that person instead of giving the documents to the applicant[2].
2. In this case, the Tribunal failed to give a notice inviting the applicants for review to attend a hearing to the authorised recipient in the manner that is prescribed by Div 7A. As will appear, this did not occasion any adverse consequence to any of the applicants for review, who are the first to sixth respondents to the appeal (“the respondents”). An effective response was made to the notice and all the respondents, including the authorised recipient, attended the hearing, which was not otherwise the subject of any procedural flaw.
3. The Full Court of the Federal Court of Australia (Moore, Marshall and Lander JJ) held that the Tribunal’s failure to comply with the obligations imposed on it under Div 7A was a jurisdictional error. The Court considered that in the absence of exceptional circumstances it should not withhold relief in a case in which the Tribunal had failed to comply with imperative statutory obligations owed to an applicant for review[3]. Since there were no such exceptional circumstances in this case the Court made orders quashing the Tribunal’s decision and remitting the respondents’ application for review to the Tribunal to be determined according to law.
4. The Minister appeals by special leave to this Court from the decision of the Full Court. For the reasons that follow the appeal should be allowed and the orders made in the Full Court should be set aside.

The facts

1. The respondents are a family, who come from Lebanon. The first respondent is the husband, the second respondent is his wife and the third to sixth respondents are their children. The family arrived in Australia on 21 March 2001. On 14 November 2005 they applied for protection visas. The first respondent made substantive claims to being a person to whom Australia owes protection obligations under the Refugees Convention[4] as amended by the Refugees Protocol[5] (together “the Convention”)[6]. The remaining respondents applied for protection visas as the first respondent’s spouse and dependants respectively[7].
2. On 13 January 2006 a delegate of the Minister refused the respondents’ applications on the ground that none satisfied the criterion for the issue of a protection visa.
3. The respondents filed an application for review of the delegate’s decision. Their application was submitted on a pro forma issued by the Tribunal. Multiple applicants for review are permitted to submit applications on the same form. The form which the respondents signed contained the following printed advice:

“Each person is an applicant in his or her own right. Unless an included applicant advises the Tribunal otherwise, the Tribunal will communicate with Applicant 1 or his or her authorised recipient. Applicant 1 must inform each applicant of the contents of any communication from the Tribunal and reply to the Tribunal for them.”

1. The first respondent was named as Applicant 1 in the application. He nominated his eldest daughter, the third respondent, SZIZQ, as his authorised recipient. SZIZQ’s address was given as the address of the premises at which all of the respondents were residing (“the family residence”). Telephone numbers for a landline and a mobile service were supplied as a means of contacting SZIZQ. The first respondent signed a declaration undertaking to inform each of the respondents of the contents of any communication from the Tribunal and to reply to the Tribunal on their behalf. The remaining five respondents, including SZIZQ, signed the application acknowledging that each had read and understood the information supplied in it and authorising the Tribunal to communicate with the first respondent or his authorised recipient about the application. The application was dated 6 February 2006. It was received by the Tribunal on 9 February 2006.
2. The Tribunal sent a notice by prepaid post addressed to the first respondent inviting him and the other respondents to attend a hearing, to be held on 23 March 2006 (“the notice of hearing”). The first respondent was instructed to inform each of the other respondents of its contents, including that any response would be regarded by the Tribunal as a joint response, unless the Tribunal was advised otherwise. A brochure explaining what would happen on the day of the hearing, and a “response to hearing invitation” (“the response form”), were enclosed with the notice.
3. Neither the first respondent nor the second respondent speak or are literate in English. SZIZQ speaks and is literate in the Arabic, French and English languages. The response form was completed in English. It was signed by the first respondent and dated 6 March 2006. It was expressed to be “[s]igned on behalf of, and with the consent of, all family members included in the application.” The section of the response form containing a space for the provision of the name and contact details of the authorised recipient was left blank. The address of the family residence was given as the first respondent’s home and mailing address. The same landline and mobile telephone numbers as had earlier been given as contact telephone numbers for SZIZQ were given as contact numbers for the first respondent. The response form recorded that the first respondent needed the services of an interpreter in the Arabic language at the hearing. Two persons were nominated as witnesses whose evidence the respondents wished to place before the Tribunal.
4. Each of the respondents attended the hearing on 23 March 2006. The two witnesses who had been nominated in the response form attended the hearing and gave evidence. A third witness also gave evidence in support of the respondents’ application. The first and second respondents gave evidence at the hearing with the assistance of the interpreter. SZIZQ gave evidence without the assistance of an interpreter. In the course of the hearing the first respondent was shown his visa application and he said that his daughter had completed the form on his behalf on his instructions.
5. At the conclusion of the hearing the Tribunal member informed the respondents:

“[I]f everybody is happy with this unless there is something else you want to put to me … is we will adjourn now close the hearing … ten days if you want to put anything else in that you think it’s relevant to your case”.

1. The Tribunal wrote to the first respondent by letter dated 27 March 2006 confirming the advice given at the hearing that the Tribunal had allowed 10 days in which to make further written submissions in relation to the review. The first respondent was asked to inform the other respondents of the contents of the letter. Written submissions signed by the first, second and third respondents were submitted to the Tribunal along with supporting documents. They were received by the Tribunal on 7 April 2006.
2. On 6 June 2006 the Tribunal handed down its decision, affirming the decision under review.
3. The respondents sought judicial review of the Tribunal’s determination before the Federal Magistrates Court. The application was dismissed on 5 September 2007[8]. The respondents appealed from that decision. The appeal came before a single judge exercising the appellate jurisdiction of the Federal Court[9]. Counsel appearing for the Minister drew to the Court’s attention that the notice of hearing had been given to the first respondent and not to his authorised recipient. This issue had not been raised before the Federal Magistrates Court. The appeal was referred to the Full Court[10]. The respondents were referred by the Registrar of the Federal Court to a legal practitioner on the Pro Bono Panel for legal assistance in relation to their appeal. An amended notice of appeal was filed, which abandoned the grounds originally relied upon and substituted a single ground contending that the decision of the Tribunal had been attended by jurisdictional error.

The statutory scheme

1. If a valid application is made to review a decision to refuse to grant a protection visa the Tribunal must review the decision[11]. The Tribunal may, for the purposes of the review, exercise all the powers and discretions that are conferred by the Act on the person who made the decision[12]. Its powers include that it may set aside the decision and substitute a new decision, which is taken to be that of the Minister[13]. In carrying out its functions under the Act, the Tribunal is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick[14]. It is not bound by technicalities, legal forms or rules of evidence and is required to act according to substantial justice and the merits of the case[15].
2. Because the Tribunal was not minded to decide the review in the respondents’ favour on the basis of the material before it, it was required to invite the respondents to appear at a hearing to give evidence and present any arguments relating to the issues arising in relation to the decision under review[16]. The obligation to give notice of the hearing was imposed by s 425A, which relevantly provides:

“(1) If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant:

(a) … by one of the methods specified in section 441A; …

(3) The period of notice given must be at least the prescribed period …
(4) The notice must contain a statement of the effect of section 426A.”

1. The prescribed period of notice in the case of an applicant who is not a detainee is 14 days after the day on which the notice is received[17]. Section 441C sets out when a person is taken to have received a document that is given by one of the methods in s 441A.
2. Section 426A permits the Tribunal, in a case in which an applicant for review has failed to appear at a scheduled hearing, to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
3. The first respondent gave the Tribunal written notice of SZIZQ’s name and address as his authorised recipient. This engaged the provisions of s 441G, which, relevantly, provides:

“(1) If:
(a) A person (the applicant) applies for review of an RRT-reviewable decision; and
(b) the applicant gives the Tribunal written notice of the name and address of another person (the authorised recipient) authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents in connection with the review;
the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
Note: If the Tribunal gives a person a document by a method specified in section 441A, the person is taken to have received the document at the time specified in section 441C in respect of that method.
(2) If the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant. However, this does not prevent the Tribunal giving the applicant a copy of the document.
…
(4) The Tribunal may communicate with the applicant by means other than giving a document to the applicant, provided the Tribunal gives the authorised recipient notice of the communication.
…”

1. The provisions of s 425A(2)(a) applied to the review of the respondents’ application and the Tribunal was required to give the notice of hearing by one of the methods prescribed in s 441A. One such method is by a member, the Registrar or an officer of the Tribunal dating the notice and dispatching it by prepaid post to the last address for service, or the last residential or business address, provided to the Tribunal by the recipient in connection with the review[18]. The provision does not, in terms, state that the recipient’s name is to be included on the envelope. However, the Minister did not contend that the notice, which was sent by prepaid post to the family residence, at which SZIZQ, the authorised recipient, was residing, had been given to her within the meaning of s 441G.

The Full Court’s reasons

1. The Full Court considered that s 422B, which is contained in Div 4, indicated the Parliament’s intention that there be “strict adherence to each of the procedural steps leading up to the hearing”[19]. Section 422B provides:

“422B Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.”

1. The Full Court pointed out that there are good reasons why the Tribunal is required to give notice to the authorised recipient instead of (or in addition to) the applicant; in many cases applicants for protection visas will not speak English or be literate in English and few may be expected to understand Australia’s obligations under the Convention[20]. It considered that usually when an applicant nominates an authorised recipient it will be for the purpose of having that person assist the applicant to present his or her case at the hearing[21]. It concluded that “any failure by the Tribunal to comply with s 441G will, if uncorrected before the hearing takes place or the decision made, mean that the Tribunal will have committed jurisdictional error”[22].

The issue

1. It is well established that the denial of natural justice to an applicant for a visa may result in a decision that exceeds jurisdiction for which prohibition will go[23]. This is not such a case. The Full Court found that no unfairness or prejudice was visited upon any of the respondents by reason of the Tribunal’sfailure to comply with its statutory obligation[24]. It approached the matter on the footing that each procedural step in Divs 4 and 7A imposed an imperative duty on the Tribunal forming part of the statutory statement of the hearing rule[25].
2. The Act does not provide for the consequences of non-compliance with any of the provisions of Div 4 or Div 7A.
3. Written notice of the invitation to appear before the Tribunal to give evidence and to present arguments[26] came to the attention of the applicants for review (the respondents in this Court) and their authorised recipient[27] within the prescribed period[28]. The notice contained the matters prescribed by the Act[29]. The notice was given to one of the applicants for review (the first respondent) in one of the ways provided by s 441A. There was no dispute, however, that the Tribunal did not give the notice of hearing to the authorised recipient. When s 441G(1) provides that, if an applicant for review has nominated an authorised recipient, “the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant”, what consequence follows if an invitation to attend a hearing was not given to the authorised recipient, but was given to one of the applicants for review, and came to the attention of other applicants for review and the authorised recipient in due time? Was it a purpose of the legislation[30] that, despite holding a hearing at which all of the applicants for review, including their authorised recipient, appeared before the Tribunal to give evidence and to present arguments relating to the issues arising in relation to the decision under review[31], the Tribunal could not validly decide the review?

The submissions

1. The respondents submit that the Full Court was right to conclude that compliance with each of the steps in Divs 4 and 7A conditions the Tribunal’s jurisdiction to determine a review. In their submission the purpose of the statutory regime is to ensure that certainty attends Tribunal decisions; a decision made in conformity with each identified step is within jurisdiction and a decision not so made is not. They contend that the Parliament’s intention was to remove debate in the courts about whether an applicant for review has been denied natural justice. In this respect they draw attention to the Minister’s speech on the second reading of the Bill for the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), which introduced s 422B into the Act[32]:

“In 1998, the codes of procedure for the Migration Review Tribunal and the Refugee Review Tribunal were enhanced.
The purpose of each of these codes is to enable decision makers to deal with visa applications and cancellations fairly, efficiently and quickly.
It was also intended that they would replace the uncertain common law requirements of the natural justice ‘hearing rule’, in particular, which had previously applied to decision makers.
However, last year in the Miah case, the High Court found that the code of procedure relating to visa applications had not clearly and explicitly excluded common law natural justice requirements.
This means that, even where a decision maker has followed the code in every single respect, there could still be a breach of the common law requirements of the natural justice hearing rule.
A further consequence of the High Court’s decision is that there is legal uncertainty about the procedures which decision makers are required to follow to make a lawful decision.”

1. The Minister submits that compliance with each of the identified steps in Divs 4 and 7A will always discharge the Tribunal’s obligations under the hearing rule but that it does not follow that departure from any of the steps, including those dealing with the giving and receiving of review documents, is intended to exclude consideration by the court of whether the requirements of natural justice have been satisfied.

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs

1. Before turning to the characterisation of the obligations imposed on the Tribunal under ss 441G and 441A, reference should be made to the decision of this Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs[33]. In that case the Tribunal failed to provide to the applicant for review written particulars of information that it considered would be the reason, or part of the reason, for affirming the decision under review. This was a breach of the requirements of s 424A, which is in Div 4. Justice McHugh, who was one of the Justices who formed the majority, concluded as follows[34]:

“However, because the Act compels the Tribunal in the conduct of the review to take certain steps in order to accord procedural fairness to the applicant for review, before recording a decision, it would be an anomalous result if the Tribunal’s decision were found to be valid, notwithstanding that the Tribunal has failed to discharge that obligation. It is not to the point that the Tribunal may have given the applicant particulars of the adverse information orally. It is also not to the point that in some cases it might seem unnecessary to give the applicant written particulars of adverse information … If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function. There can be no ‘partial compliance’ with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not. Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act.”

1. Justice Hayne (with whose reasons on this aspect Kirby J agreed) observed that the evident purpose of Pt 7, and Div 4 in particular, is to afford procedural fairness to applicants[35]. His Honour identified the focus of the inquiry as to jurisdictional error as being the validity of the act done in purported performance of the Tribunal’s obligation to review and decide the matter[36]. He concluded that[37]:

“Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid.”

1. It is to be observed that the obligation imposed by s 424A, that the Tribunal give an applicant written particulars of any adverse information including of the relevance of that information to the review, is of a different character to the obligation imposed on the Tribunal to give notice of a hearing in the manner that is prescribed by s 441A.

Consideration

1. SAAP was concerned with the Act as it stood before the introduction of s 422B. The validity of s 422B was assumed by the parties and this appeal does not raise consideration of the scope of its operation. In SZBYR v Minister for Immigration and Citizenship[38] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ observed that in light of the introduction of s 422B it would be surprising if s 424A were interpreted as having an operation going well beyond the requirements of the hearing rule at common law. That observation is pertinent to the consideration of whether there is to be discerned from the legislative scheme an intention to invalidate in consequence of non-compliance with any of the obligations dealing with the manner of giving and receiving review documents.
2. The obligations imposed by s 425A with respect to giving notice of the hearing are directed to ensuring that an applicant has adequate time in which to prepare his or her case. (The requirement for service by a method prescribed by s 441A may be thought to serve a different purpose, which is to lay the foundation for the Tribunal to determine a review without further notice where an applicant has failed to appear at a scheduled hearing.) As the Full Court found, s 441G contains a statutory recognition that some applicants are unlikely to understand the purport of the notice or to be able to properly prepare their case without assistance. In this respect s 441G may be seen as being concerned with the provision of effective notice of the hearing.
3. In combination, ss 425A and 441G ensure that an applicant for review receives timely and effective notice of the hearing. They impose obligations which facilitate the conduct of a procedurally fair hearing. However, the manner of providing timely and effective notice of hearing is not an end in itself. The procedural steps dealing with the manner of giving notice are to be distinguished from other components of the statutory statement of the hearing rule, including the obligation to give particulars of adverse information[39] and to invite the applicant to appear to give evidence and to present arguments relating to the issues arising in the decision under review[40].
4. While the legislature may be taken to have intended that compliance with the steps in ss 441G and 441A would discharge the Tribunal’s obligations with respect to the giving of timely and effective notice of the hearing, it does not follow that it was the intention that any departure from those steps would result in invalidity without consideration of the extent and consequences of the departure. The respondents acknowledge that they suffered no injustice by reason of the Tribunal’s omission and they do not take issue with the Full Court’s characterisation of the result in the circumstances as being “rather absurd”[41]. The admitted absurdity of the outcome is against acceptance of the conclusion that the legislature intended that invalidity be the consequence of departure from any of the procedural steps leading up to the hearing[42]. In a case in which the Tribunal fails to comply with the requirements for the giving of notice of a hearing, the factual determination of whether the applicant for review and his or her authorised recipient received timely and effective notice of the hearing does not require the court to consider how the applicant might have presented his or her case differently had the Tribunal complied with the statutory procedures. No question arises, in the case of an applicant who has received timely and effective notice of the hearing, of the loss of an opportunity to advance his or her case.
5. Notwithstanding the detailed prescription of the regime under Divs 4 and 7A and the use of imperative language it was an error to conclude that the provisions of ss 441G and 441A are inviolable restraints conditioning the Tribunal’s jurisdiction to conduct and decide a review. They are procedural steps that are designed to ensure that an applicant for review is enabled to properly advance his or her case at the hearing; a failure to comply with them will require consideration of whether in the events that occurred the applicant was denied natural justice. There was no denial of natural justice in this case.
6. For these reasons the appeal should be allowed.

Orders

1. As a condition of the grant of special leave the Minister undertook not to seek to disturb any orders as to costs which had been made in the courts below. The Full Court of the Federal Court allowed the respondents’ appeal (order 1) and set aside the order made in the Federal Magistrates Court on 5 September 2007 (order 2) and ordered the Minister to pay the respondents’ costs of the appeal (order 3). Accordingly, the orders that we propose are as follows:
   1. Appeal allowed.
   2. Set aside orders 1 and 2 of the orders made by the Full Court of the Federal Court of Australia on 3 July 2008, and in lieu thereof order that:

(a) order 2 of the orders made by the Federal Magistrates Court of Australia on 5 September 2007 be set aside; and

(b) the appeal be otherwise dismissed.

1. Appellant to pay the first to sixth respondents’ costs of the appeal to this Court.

[2] Section 441G.

[3] SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 at 168-169 [97] per Lander J (Moore and Marshall JJ concurring).

[4] The Convention relating to the Status of Refugees done at Geneva on 28 July 1951.

[5] The Protocol relating to the Status of Refugees done at New York on 31 January 1967.

[6] Section 36(2)(a).

[7] The second to sixth respondents’ application was made pursuant to s 36(2)(b) of the Act.

[8] SZIZO v Minister for Immigration [2007] FMCA 1339.

[9] Section 25(1AA)(a) of the Federal Court of Australia Act 1976 (Cth).

[10] Section 25(1AA)(b) of the Federal Court of Australia Act 1976 (Cth).

[11] Section 414(1).

[12] Section 415(1).

[13] Section 415(2)(d) and (3)(b).

[14] Section 420(1).

[15] Section 420(2).

[16] Section 425.

[17] Regulation 4.35D(b) of the Migration Regulations 1994 (Cth).

[18] Section 441A(4).

[19] SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 at 167 [87].

[20] SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 at 167 [88]-[89].

[21] SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 at 167 [90].

[22] SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 at 167 [90].

[23] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 89 [5] per Gleeson CJ, 91 [17] per Gaudron and Gummow JJ; [2000] HCA 57; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 at 67 [26] per Gleeson CJ and Hayne J; [2001] HCA 22; Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77.

[24] SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 at 167 [91].

[25] SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 at 166-167 [87].

[26] Section 425(1).

[27] Section 441G.

[28] Section 425A(3).

[29] Sections 425A(1) and 426(1).

[30] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-389 [91]; [1998] HCA 28.

[31] Section 425(1).

[32] Australia, House of Representatives, Parliamentary Debates (Hansard), 13 March 2002 at 1106.

[33] (2005) 228 CLR 294; [2005] HCA 24.

[34] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 321 [77].

[35] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 350 [192].

[36] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 353-354 [205].

[37] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294 at 354-355 [208] (emphasis in original).

[38] [2007] HCA 26; (2007) 81 ALJR 1190 at 1195 [14]; [2007] HCA 26; 235 ALR 609 at 614; [2007] HCA 26.

[39] Section 424A(1).

[40] Section 425.

[41] SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 at 167 [91].

[42] SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 at 167 [87].

MIGRATION – Criminal justice stay certificate and visa – cancellation – operative decision taken by Attorney-General – applicant granted visa as potential witness in prosecution – arguable case that he was denied procedural fairness – application for summary dismissal refused – interim injunction made – referral for legal assistance.

Federal Magistrates Court Rules 2001 (Cth), rr.12.03, 44.12

Migration Act 1958 (Cth), ss.147, 147(b)(iii), 162, 162(1), 164, 417, 476

Wasfi v Commonwealth & Anor (1998) 83 FCR 16

Applicant:

Kuanglun Zhang

First Respondent:

Minister for Immigration & Citizenship

Second Respondent:

ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

File Number:

SYG 327 of 2009

Judgment of:

Smith FM

Hearing date:

9 March 2009

Delivered at:

Sydney

Delivered on:

9 March 2009

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr A Markus

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

(1)                  The first respondent is restrained until further order or the conclusion of this proceeding, by himself, his delegates, officers or agents, from removing the applicant from Australia.

(2)                  The Attorney‑General for the Commonwealth is included as a respondent to the application, in so far as it seeks review of his decision under s.162 of the Migration Act.

(3)                  The applicant has leave to file and serve an amended application including any additional grounds of review with complete particulars of each ground on or before 10 April 2009.

(4)                  The applicant must file and serve any additional affidavits on or before 10 April 2009.

(5)                  The first respondent must file and serve any additional affidavits on or before 1 May 2009.

(6)                  A show‑cause hearing under Rule 44.12 is dispensed with.

(7)                  The application is listed for final hearing on the grounds set out in the application as may be amended on 12 May 2009 at 10.15 a.m. at Court 6D, Level 6, John Maddison Tower, 88 Goulburn Street, Sydney.

(8)                  Note that the Court will consider:

(i)                whether the decision of the Attorney‑General on or about 24 April 2008 to cancel the criminal justice certificate should be declared void by reason of a failure to afford procedural fairness (compare Wasfi v Commonwealth (1998) 83 FCR 16),

(ii)             whether as a consequence, it should be declared that the applicant’s criminal justice visa granted on 24 June 2004 continues in effect.

(9)                  The applicant is referred under r.12.03 to the NSW District Registrar for referral to a lawyer on the pro bono panel for legal assistance, including advice about the amendment of his application and the filing of additional evidence, and, if appropriate, representation at the hearing.

(10)              Any party may request that the proceeding be listed for further directions or for the hearing of an application in a case on a date allowing 5 clear days’ notice to the other parties.  The appointment shall be obtained from the Associate on 9377 5528.

(11)              The applicant must file and serve in the Registry a short written outline of submissions and list of authorities 7 days before the hearing.

(12)              The first respondent must file and serve a short written outline of submissions and list of authorities 3 days before the hearing.

(13)              All documents required to be filed must be filed at the Registry.  PROVIDED that any document which is filed within 5 days of the hearing or other listing shall ALSO be provided by email address or facsimile number obtained from the Associate.

(14)              The applicant must immediately serve on the solicitors of the first respondent a copy of every document filed in the Court.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

Sydney

SYG 327 of 2009

Kuanglun Zhang

Applicant

And

Minister for Immigration & Citizenship

First Respondent

ATTORNEY‑GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application which was filed on 9 February 2009, in which the applicant presents to the Court as a person held in immigration detention with limited access to legal assistance.  His application invokes this Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth), without defining a ‘migration decision’ as defined for the purposes of that section, of which he seeks judicial review.  However, the official actions which are the subject of his grievance emerge, in my opinion, with sufficient clarity from his application and other evidence now before the Court to allow it to make appropriate interlocutory orders.  I note that the legal representatives of the Minister for Immigration had no apparent difficulty in detecting the administrative background to his application, when preparing a Court Book and affidavit to assist the Court.
2. The applicant came to Australia in June 2003, and shortly after his arrival an application for a protection visa was lodged.  This inadequately presented his claims.  The protection visa application was refused by a delegate, and that decision was upheld by the Refugee Review Tribunal in January 2004.
3. In circumstances which are not clear on the present evidence, the applicant gave information to the Department of Immigration complaining about the migration agent who had assisted him.  At that time, the applicant was regarded as a person who could assist an investigation and possible prosecution of that person.  For reasons which are not disclosed in the present evidence, a certificate under s.147 of the Migration Act was signed on 18 June 2004 by an officer of the Attorney‑General’s Department, as a delegate of the Attorney‑General’s power under that section.  This certified that “the stay of the removal or deportation of” the applicant “is required for the administration of criminal justice”.  It indicated the delegate’s opinion, in terms of s.147(b)(iii) that the applicant “should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to offences against laws of the Commonwealth of Australia”.
4. Acting upon the certificate, the Minister for Immigration then issued to the applicant a temporary visa of a class known as a ‘criminal justice stay’ visa, which continued indefinitely for the subsequent nearly four years.  The applicant contends that he was also given promises at that time that he would be given permanent residence in Australia if his stay became protracted.  However, the nature and evidence of these promises is not shown clearly in the evidence currently before me.
5. In his application to the Court, the applicant also refers to his being taken into immigration detention on 22 January 2009 following the cancellation of his criminal justice stay certificate and of his visa, and to his now being threatened with immediate removal from Australia.  His application complains:

1.      The Immigration Department requested me to be a witness for a migration fraud case because I am a victim.  The department orally promised that if the proceeding lasts for a long time, they would grant me the permanent resident visa.  However, after more than four years, a decision was made that no further visa will be granted to me.

2.      During the four years’ proceeding time, the department refused to tell our witness any progressing of the legal proceedings.  After four years, without advising me about the result of the legal proceeding (which I provide evidence as a victim witness), the immigration department ask me to depart Australia).

1. It appears to me that this sufficiently raises, at least, a contention that the applicant was denied procedural fairness before an operative decision was made upon which his detention and proposed removal is based.
2. The evidence now before me contains some relevant correspondence about this.
3. A letter dated 18 February 2008 was hand delivered to the applicant on 20 February 2008, by an officer of the Department of Immigration on letterhead of the Department of Immigration.  It stated::

I am writing to advise you that I have reviewed the Criminal Justice Stay Visa granted to you.

On 24 June 2004 you were granted a Criminal Justice Stay Visa so you could lawfully remain in Australia for the administration of the criminal justice process.  The Criminal Justice Visa was issued to support the investigation and prosecution of [name of another person] for his alleged involvement in providing false or misleading information to the Department of Immigration.

The Commonwealth Director of Public Prosecutions (CDPP) has decided the evidence you were prepared to give in this matter will now not be used by the CDPP.  This means that your involvement in the case has now concluded and your continuing presence in Australia, to assist in the criminal justice process, is no longer required.

You should now make arrangements to depart Australia.  The Department of Immigration and Citizenship will pay an economy air fair from Australia to your home country.

You have 28 days from the date of receipt of this letter to depart Australia or to apply for another visa.  Thereafter, the Attorney‑General will consider whether to cancel your Criminal Justice Stay Certificate, which would result in the cancellation of your Criminal Justice Stay Visa – see ss162 and 164 of the Migration Act 1958.  In addition, all Government support payments which you may presently receive conditional on your holding a Criminal Justice Stay Visa will cease from the day of any cancellation of that visa.

If you remain in Australia after the 28–day period and do not hold another visa you will become an unlawful non‑citizen subject to removal action.  If you are removed from Australia, that may affect your ability to travel to Australia in the future.

Should you require further information regarding this process or assistance with your departure arrangements, please contact [Manager] on [(02) telephone number] or [Officer] on [(02) telephone number] as soon as possible.  Alternatively, you may seek independent immigration advice.

I would like to personally thank you for your help with the administration of the criminal justice process in Australia.  The department is committed to ensuring compliance with migration and citizenship law, including the prosecution of serious offenders, and your willingness to support this process is appreciated.

1. The applicant subsequently employed a solicitor, who made representations to the Minister for Immigration inviting the Minister to make a decision under s.417 of the Migration Act, so as to grant the applicant a permanent resident visa.  That application was made on 14 March 2008.  It was not determined until 5 August 2008, when the applicant’s solicitor was informed that the Minister had declined to consider exercising that power.  The applicant’s solicitor requested a bridging visa while this consideration occurred, and I assume that such a visa was granted.
2. Meanwhile, it appears that an officer in the Attorney‑General’s Department had signed a document on 24 April 2008, which purports to be a certificate under s.162(1) of the Migration Act.  It states:

WHEREAS on 18 June 2004, [name], an officer of the Attorney‑General’s Department duly authorised by the Attorney‑General, issued a certificate pursuant to section 147 of the Migration Act 1958 (the Act), which stated that the presence of Kuanglun ZHANG (also known as Kuang Lun ZHANG), a citizen of the People’s Republic of China, was required in Australia for the purposes of the administration of criminal justice in relation to an offence against a law of the Commonwealth;

AND WHEREAS the presence of Kuanglun ZHANG in Australia is no longer required for the relevant purpose;

AND WHEREAS on 14 April 2008, notice in writing of the intention to cancel the certificate and details required under subsection 162(2) of the Act were given to the Secretary of the Department of Immigration and Citizenship;

NOW THEREFORE I, [name], an officer of the Attorney‑General’s Department being duly authorised at the date hereof to issue and cancel certificates under Division 4 of the Act, hereby cancel pursuant to subsection 162(1) of the Act, the abovementioned certificate with effect from 28 April 2008.

1. Shortly before that certificate was signed, an officer in the Department of Immigration sent to the applicant’s solicitor a letter dated 14 April 2008 which stated :

This letter is to confirm our telephone conversation this morning.

Mr Zhang is currently the holder of a Criminal Justice Visa.  As his involvement in the matter for which he was granted the visa has now concluded, I have begun proceedings for the Criminal Justice Visa to be cancelled.

On 28 April 2008 the Attorney General’s Department will cease the Criminal Justice Certificate issued to Mr Zhang.  This means that Mr Zhang’s Criminal Justice Visa will automatically be cancelled that same day, 28 April 2008.

In your letter to me of 14 March 2008 you requested the Department grant Mr Zhang a bridging visa to allow him to remain legally in Australia while the Minister considers his request to remain permanently in Australia.

For Mr Zhang to be granted a bridging visa he should attend the Department of Immigration and Citizenship’s Compliance Counter at Level 4, 26 Lee Street Sydney on Tuesday 29 April 2008.  He should take with him this letter, his passport and some bills which show his current residential address.

If you would like to clarify any details in this letter please feel free to contact me by phone on [number].

(emphasis in original)

1. This correspondence suggests that it was not considered necessary in the Department of Immigration for the Attorney‑General or his delegate to invite the applicant or his solicitor to make submissions to that decision‑maker on whether the Attorney‑General should cancel the certificate, before that action was taken.  There is no evidence currently before me which shows any contact being made by the Attorney‑General’s Department with the applicant or his solicitor.  However, it was a decision of the delegate of the Attorney‑General which was, in fact, the operative decision which gave rise to the power of the Minister to detain the applicant for removal from Australia.
2. Notwithstanding the contrary suggestion in the above correspondence, the Minister for Immigration and his delegates and officers had no statutory power to determine whether to remove the applicant’s right to lawful residence in Australia under his criminal justice visa.  Rather, any valid cancellation of his criminal justice visa occurred by operation of law under s.164 of the Migration Act which provides:

164   Effect of cancellation etc. on criminal justice visa

If:

(a)    a criminal justice certificate is cancelled; or

(b)    a criminal justice stay warrant is cancelled or expires;

any criminal justice visa granted because of the certificate or warrant is cancelled and the Minister is to make a record of the cancellation.

1. The operative power, is therefore that of the Attorney‑General under s.162, which provides:

162   Criminal justice certificates to be cancelled

(1)    If the presence in Australia of a non‑citizen in respect of whom a criminal justice certificate has been given is no longer required for the purposes for which it was given, then:

(a)    if it was given under section 145 or 147, the Attorney‑General; or

(b)    if it was given under section 146 or 148—an authorised official;

is to cancel it.

(2)    Before cancelling the certificate, the Attorney‑General or authorised official is, an adequate time before doing so, to tell the Secretary:

(a)    when it is to be cancelled; and

(b)    the expected whereabouts of the non‑citizen when it is cancelled; and

(c)     the arrangements for the non‑citizen’s departure from Australia.

1. In Wasfi v Commonwealth & Anor (1998) 83 FCR 16, Merkel J considered the structure of the Migration Act in relation to the cancellation of a criminal justice certificate and the consequential effect on a criminal justice visa.  However, the circumstances were very different from the present.  In that case, such a certificate had been signed, and a visa was granted to the applicant, in relation to criminal justice proceedings in which he himself was prosecuted, sentenced, and ultimately released from imprisonment at the end of his sentence.  As Merkel J found, it was incontestable that the applicant’s continuing presence in Australia was “no longer required for the purposes” for which the certificate was issued (see p.21G‑22C).
2. In the present case, the applicant received his visa for co‑operating with the criminal justice authorities as a potential witness.  The evidence currently before me suggests that no prosecution has, in fact, yet occurred, but that the Commonwealth Director of Public Prosecutions held an opinion in early 2008 that the applicant’s evidence “will now not be used”.  There is no evidence before me as to the basis upon which that opinion was held.  The evidence does not show what correspondence there has been between the Commonwealth Director of Public Prosecutions, the Department of Immigration and the Attorney‑General’s Department before the cancellation certificate was signed.  Whatever the nature of that correspondence, it would not have been legally permissible for anyone other than the Attorney‑General or his delegate to make the decision under s.162 as to whether the precondition to cancelling the certificate should be found to be satisfied.
3. In Merkel J’s language at p.22, I consider that it is reasonably arguable for the applicant that his was a case where:

the question of whether a person’s presence is no longer required for the purpose for which a criminal justice certificate was given might involve a judgment based on evaluation and weighing up of facts and circumstances: see ss 145, 146, 147, 148 and 162.

1. In Wasfi, Merkel J addressed whether a judicial review application could challenge the validity of the cancellation of a certificate, in the course of seeking a judicial determination whether the applicant is an unlawful non‑citizen by reason of a cancellation of a criminal justice visa by operation of s.164.  His Honour was of the opinion that it could.  His Honour was of the view that an applicant would have standing to challenge that cancellation, and that “the Attorney‑General was bound to comply with the rules of natural justice when making his decision under s 162(1)” (see p.29C).  His Honour said at p.27F :

Section 162 confers a non‑discretionary power of cancellation based upon the determination that a person’s presence in Australia is no longer required for the purpose for which a criminal justice certificate was given.  As pointed out above in some cases a decision under the section can require an evaluation and weighing up of facts and circumstances.  In such cases views may differ as to whether the criteria necessary for the exercise of the power have been satisfied.  Whilst there may be little room for doubt on that issue in the present case, that is not necessarily so in other cases.  Although the power conferred under the section is not discretionary and the matters which may be put forward by a person who is intended to be the subject of the power against its exercise may be limited, there are matters which a person, whose rights or interests might be prejudiced by the exercise of the power, might legitimately wish to put forward in order to contend that the power ought not to be exercised.  Accordingly, there is nothing implicit in the nature of the decision to be made or the subject matter with which it is concerned that leads to the conclusion that it would be futile or pointless to afford a person, whose rights or interest might be affected by the decision, an opportunity to be heard in relation to it.  I would add that a court should exercise considerable caution before concluding that the subject matter of a decision is such that it would be futile or pointless to afford the person who will be affected by it an opportunity to be heard.  As was so graphically pointed out by Megarry J in John v Rees [1970] Ch 345 at 402:

“It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice.  ‘When something is obvious’, they may say, ‘why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard?  The result is obvious from the start.’  Those who take this view do not, I think, do themselves justice.  As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.”

1. Merkel J then considered the “scope or content of the rules in the present case”.  He was satisfied in that case that there was “the real risk of flight… such that the giving of prior notice in relation to a decision under s 162(1), and affording the applicant an opportunity to be heard prior to making it, might frustrate the object or purpose of conferring the power to make the decision in this case” (see p.29E).  He therefore was satisfied that there had been no such requirements “in the special circumstances of the present case”.  There is no foundation in the evidence currently before me for a similar apprehension in relation to the present applicant.
2. The present application was returnable before me at a first Court date last week, on 3 March 2009.  The Minister submitted that an expedited show‑cause hearing should be held under r.44.12, and I acceded to this submission.  It appeared to me that this was appropriate, because the merits of the application were obscure, the applicant was in detention, and the Minister was foreshadowing his urgent removal from Australia.  I therefore listed today’s show‑cause hearing, and directed the Minister to provide a Court Book explaining the relevant background.  The applicant was encouraged to provide any additional documentary evidence informally to the Court.  He has done so today, and the Minister’s representatives have taken no objection to that.  The Minister tendered further documents, and I have considered the preliminary merits of the applicant’s application upon this documentary evidence, without taking any evidence from the applicant or any other witness.
3. These expedited procedures have the consequence that the proceeding has not been fully prepared in relation to its presentation of evidence and submissions by either side.  Plainly, the application is not adequately formulated in relation to the grounds of review or the relief sought.  Not only does it need to properly identify the migration decisions in relation to which judicial review is sought, but if, as I think it should, it is understood as including a challenge to the operative decision of the Attorney‑General under s.162, it would be appropriate for the Attorney‑General to be joined as a respondent, as well as the Minister for Immigration.  There appears to be no doubt that a challenge to the validity of a decision under s.162 comes within this Court’s jurisdiction under s.476 of the Migration Act.
4. The Minister’s representative today submitted that the proceeding is incorrectly constituted at present, and should be summarily dismissed for that reason.  However, I am not satisfied that it does not properly raise a genuine dispute as to whether the applicant’s criminal justice visa should be declared not to have been cancelled by operation of law, and whether the applicant is currently a non‑citizen who is liable for removal from Australia under Division 6 of Part 2 of the Migration Act, even as presently constituted with only the Minister for Immigration.  The Minister is a proper contradictor in relation to that issue, and it appears to me that it has been raised by the present application.  The applicant has a contention that there has been no automatic cancellation of his temporary visa by operation of law by reason of a cancellation of a criminal justice certificate by the Attorney‑General, because that decision was void under principles of procedural fairness.  It may well be that the Attorney‑General has a right to be heard in relation to that contention, but I am not persuaded that the present application is doomed to failure due to the absence of that joinder at inception.
5. I consider that the applicant has raised an arguable case in relation to that issue, upon the principles considered by Merkel J in Wasfi.  I think it appropriate today to order the amendment of the application, to join the Attorney‑General as a respondent.  He will have liberty to apply to be removed if he wishes to contend that this was inappropriate.
6. I note that the Minister made two other submissions on whether the applicant had raised an arguable case for any relief.  The first was that, as in Wasfi, no obligations of procedural fairness arose in the present case obliging the Attorney‑General to give notice of an intention to consider cancellation and inviting submissions from the applicant.  He submitted that this was because only one outcome was conceivable, due to the CDPP’s stated opinion.
7. However, in my opinion the applicant has a reasonable argument that Wasfi is distinguishable.  As I have indicated, the critical consideration in Merkel J’s judgment, which does not apply in the present case, was that the applicant was ‘at risk of flight’ if he was warned that cancellation was being contemplated and invited to make submissions.  There seems to have been no fear of this in relation to the applicant, since the applicant was told by the Department of Immigration that his visa would be cancelled, albeit in terms which arguably showed error of law as to the location of the operative statutory power and, arguably, an implicit denial of the applicant’s right to be heard by the relevant decision‑maker.
8. Whether, in the circumstances, any breach of procedural fairness occurred, and whether it was sufficiently material to justify the granting of final relief by the Court, are, in my opinion, issues which are better left to a final hearing, when they can be decided upon better evidence and submissions presented by both parties.
9. The Minister’s second contention was that, in fact, the applicant was given sufficient notice of an intention to consider cancelling the visa and an opportunity to be heard, as a result of the two letters given to him by the Department of Immigration on 18 February 2008 and 14 April 2008 as set out above.  However, it appears to me that the applicant has a simple argument which he could raise in answer to that contention.  This is that these warnings did not constitute a notice given by the Attorney‑General, or his delegate, of an intention to consider the exercise of his powers, and an indication by that statutory officer that he was open to receiving submissions from the applicant before making a decision.  It appears to me that the applicant has arguments that the terms of the correspondence appeared to shut out the applicant from an opportunity to be heard, rather than the converse.  These are issues also which, in my opinion, are better left to a final hearing.
10. For the above reasons, I am satisfied that the applicant has raised an arguable case for the giving of relief in relation to the matter he brings before the Court.  That relief being by way of declaratory orders in relation to the validity of the purported cancellation of the criminal justice certificate and of the consequential cancellation of the criminal justice visa, and of the applicant’s status as a non‑citizen currently liable to removal from Australia.  It is therefore appropriate to make further directions allowing the proceeding to be prepared for a final hearing.
11. This conclusion also means that I am satisfied that there is a serious case to be tried in relation to those issues, such as to warrant the granting of interlocutory relief to the applicant to prevent his removal from Australia pending the completion of the proceeding.  The applicant is under formal notice of such a threat.  He was today served with a “Notice of Your Removal From Australia”, foreshadowing an intention to remove him from Australia in two days time.
12. The applicant orally requested the Court to make an interlocutory injunction restraining his removal.  In the circumstances, I consider it appropriate to dispense with any formal rules in relation to the making of an interlocutory application.
13. In my opinion, the balance of convenience plainly points in favour of the applicant being allowed to continue in Australia to properly instruct lawyers and to present his evidence and submissions to the Court.  He has an arguable case which would find a lawful right of residence, and this right is at risk if he is removed before the completion of the proceedings.  The Minister has not presented any evidence or submissions suggesting that there is any reason why the applicant should not be allowed to continue in Australia until the Court has a proper opportunity to determine the issues in this case on a final basis.
14. I am therefore satisfied that an interim injunction should be immediately issued.  It will grant the Minister and the applicant an opportunity to apply to the Court for further orders, including, if the applicant sees fit, for his interim release from detention.
15. It appears to me that this is a case where the interests of the administration of justice point in favour of the applicant having legal representation to explore the evidence and the arguments he needs to present to the Court.  The applicant informed the Court on the last occasion that he had not been able to obtain legal assistance while he was in detention, and he informed the Court today that the solicitors that acted for him in early 2008 no longer act for him and no longer have his confidence.  In those circumstances, I propose to make a referral under Part 12 rule 3 of the Federal Magistrates Court Rules 2001 (Cth) to the District Registrar, to see if a lawyer from the Court’s pro bono panel can be arranged.
16. In all the circumstances of this case, I consider that it should be given reasonable expedition, but it appears to be now little different than other cases coming before this Court where an applicant is held in detention.  No consideration has been put before me indicating a need for it to be rushed, in the sense of being brought on for hearing in the next few weeks.  I consider a sufficient timetable should be set for the preparation of the case, including time for the District Registrar to make arrangements for the applicant to be represented and for that person to take proper instructions from the applicant and present a properly formulated amended application and evidence, and for the respondents to respond.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  12 March 2009