FEDERAL COURT OF AUSTRALIA

CJR17 v Minister for Immigration and Border Protection [2018] FCA 1627

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent's costs to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This is an appeal from the decision of the Federal Circuit Court dismissing the appellant's application for judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) to affirm the Minister's delegate's decision to refuse to grant the appellant a protection visa: CJR17 v Minister for Immigration & Border Protection [2017] FCCA 2959.

2    The appeal raises for consideration procedural fairness both in the context of the Tribunal and the Federal Circuit Court. As to the Tribunal, the issue was the Tribunal's lack of response to a post-hearing communication from the appellant's agent. The communication related to a decision of the First-tier Tribunal of the Immigration and Asylum Chamber in the United Kingdom which had the effect of granting the appellant's brother asylum.

3    The issue as to the Federal Circuit Court was whether the late delivery of an affidavit on behalf of the Minister had the effect of denying the appellant procedural fairness.

Background

4    The appellant is a citizen of Zimbabwe who was born in the Bikita district and moved to Harare in 2001. The appellant arrived in Australia on 15 February 2007 as the holder of a student visa. His second student visa expired in March 2010.

5    In January 2013 the appellant applied for a protection visa.

6    In March 2015 a delegate of the Minister refused the application and the appellant sought review in the Tribunal.

7    The appellant appeared before the Tribunal on 23 March 2016.

8    On 1 May 2017 the Tribunal affirmed the delegate's decision. The Tribunal found that there was no real chance that the appellant would suffer serious harm if returned to Zimbabwe. Relying on the same reasoning process, the Tribunal also found that there was no real risk the appellant would suffer significant harm as identified in the complementary protection guidelines.

Protection claim before the Tribunal

9    The appellant claimed to fear persecution by the Zimbabwean Government and Zimbabwe African National Union - Patriotic Front (ZANU-PF) supporters because of the involvement of his family, in particular his father and brother, with the Movement for Democratic Change (MDC), because of his own involvement with the MDC and on the basis that he would be regarded as a traitor because he and members of his family had been residing in western countries.

Evidence and submissions as to brother's position

10    It is not in issue that the appellant's brother, who I will refer to as Mr F, has been granted asylum in the United Kingdom. Nor is it in issue that a written decision regarding Mr F was delivered by the First-tier Tribunal of the Immigration and Asylum Chamber (UK decision). A copy of the UK decision was provided to the Federal Circuit Court and to this Court.

11    It is necessary to set out the evidence given about Mr F before the Tribunal.

12    The appellant appeared at the Tribunal hearing by video but was represented by a registered migration agent (Agent). The transcript of the hearing was not before the Court, but by an affidavit filed in the Federal Circuit Court proceedings, a lawyer from the Australian Government Solicitor's office, Mr Gao, deposed to listening to the audio recording of the hearing (Gao affidavit). Mr Gao attached certain transcript extracts. The first extract dealt with Mr F's position in the United Kingdom:

TRIBUNAL MEMBER: Was [Mr F] - was he a member of the MDC?

APPLICANT: Yes he was.

TRIBUNAL MEMBER: OK so did he continue - was he involved in any activity for the MDC when he was in Harare?

APPLICANT: Yes I do believe and I have - I did put some recommendation in my application. I am not sure whether its … full information but I did put the recommendation in my application showing that he was and I do believe he is still an active member … branch of the MDC in the UK.

TRIBUNAL MEMBER: What I have in relation to that, I will just let you know because it appears you were unsure of this in the past. I have here a document which indicates that your brother was granted a 5 year visa in England in relation to protection claims.

APPLICANT: Yes, yes.

TRIBUNAL MEMBER: Umm sorry, just let me explain to you what I, what I have on the file. I also got some statements from family members. So I've got a statement from a branch of the MDC in the UK saying that he was involved there.

APPLICANT: Yeah.

TRIBUNAL MEMBER: And mentioning that he was a teacher in Zimbabwe. Umm and I also have a couple of documents from, it appears your family members supporting [Mr F's] application, umm and I have got some interview notes I suppose. Umm but what I don't have is, I don't have a decision as such, or anything like that outlining what his claims were or why he feared persecution or anything like that.

APPLICANT: Oh right, I umm, a long time ago I was asked about this, I made sure I sent in a consent form which allowed him to get that information on his side so. I am not sure if the Department was provided because they give him form which said can you send this post and liaise with Britain Immigration and he give them that so I thought it could come from them …

TRIBUNAL MEMBER: Yep umm, I am just letting you know the information that I have. From the information that I have, it appears that in 2012 this correspondence from the UK Order Agency indicating that [Mr F] was granted. Sorry, that his appeal was allowed by a tribunal. And it appears that unless there was any appeal of that, that your brother would have been granted a - umm 5 year visa in relation to a political asylum claim. And from umm, the other family members it appears that your brother claimed that he was a member of the MDC and that he was also a teacher. But that's -

APPLICANT: Yes.

TRIBUNAL MEMBER: I don't have all that much more information about his claim, I am just letting you know what I have.

13    As to submissions, the following exchange occurred:

TRIBUNAL MEMBER: I don't have much more to say, I'll ask [Agent] if he wants to say some things now, or whether we have a short break and then come back.

APPLICANT'S REPRESENTATIVE: No I don't have anything to say Member. The only thing, I need is, I haven't seen my client since he engaged me. I need to put in some submissions, just need a week's time if possible.

TRIBUNAL MEMBER: Sure, so you want a week to put in some post-hearing submissions?

APPLICANT'S REPRESENTATIVE: Yes.

TRIBUNAL MEMBER: Umm, that's, that's okay, so long as submissions would be in relation to I suppose the evidence that we've heard rather than -

APPLICANT'S REPRESENTATIVE: Yes, maybe there has to be something I depose … and all that … and some reference to the current situation … and I might also make reference to the party people … Because the case officer agreed on the claim by [the appellant] on the basis of political association with his family, he accepted that, but they have not raised whether or not he could have returned to his country, there's any chance that he will be persecuted based on his claims or based on political …

TRIBUNAL MEMBER: I don't necessarily agree with that reading I thought that what they were saying was that there's a chance of low level risk, of low level harassment, I think, in Bikita. But there wasn't a real chance of meeting the definition of real chance of serious harm if he was in Harare, and I think they used the language of relocation. Now I am not necessarily sure that it's necessarily a relocation case -

APPLICANT'S REPRESENTATIVE: That's right.

TRIBUNAL MEMBER: Because he you know, he was living in Harare, he doesn't know where he will go back to, umm so that's the first thing.

APPLICANT'S REPRESENTATIVE: … I am just making a reference to that in his case … this Saturday and what his current situation is …

TRIBUNAL MEMBER: That's fine, so what's today? Today's a Wednesday. So is that a week from now?

APPLICANT'S REPRESENTATIVE: Yes it is.

TRIBUNAL MEMBER: Okay, that's fine.

APPLICANT'S REPRESENTATIVE: Okay thank you.

TRIBUNAL MEMBER: That will be, umm, that'll be - you've heard some of the concerns I have had and if you want to address some of those things.

APPLICANT'S REPRESENTATIVE: Yes …

TRIBUNAL MEMBER: Okay, thanks very much. Have you heard that … ?

APPLICANT: Yes, I think, umm … This is an Easter weekend, so I have Fridays and Monday's off as working days.

TRIBUNAL MEMBER: Okay, does that affect anything?

APPLICANT'S REPRESENTATIVE: Umm, it depends on when I can get to see him.

TRIBUNAL MEMBER: We will work on the assumption that it's a week, if there is any problem just get in contact with the tribunal, obviously I don't want this to blow out for too long.

After the hearing

14    The original time frame for further submissions or documents therefore expired on 30 March 2016. On 29 March 2016 the Agent sought an extension of time for filing 'documents' on the basis he had not been able to see his client (who was in custody at that time). The Tribunal member granted an extension for providing 'documents' to 6 April 2016, confirmed in writing by email.

15    On 7 April 2016 the Agent filed written submissions, but named the wrong visa applicant.

16    On 19 April 2016 the Agent re-filed the corrected submissions. The submissions referred to Mr F as being a very vocal and active member of the MDC, that the appellant considered Mr F would continue his political activities because of his intense passion and despite knowing of associated risks, that he was well known and recognised in the area as a teacher and from MDC meetings, and that when he fled Zimbabwe in 2005 he continued his MDC activities in the United Kingdom.

17    On 28 April 2016 the Agent sent by email a letter to the Registrar of the Tribunal. The letter reads as follows:

Dear Sir/Madam

Re:    [Mr CJR17] (Application for Protection visa) Case No. 1504739

We refer to the hearing held in the matter on 23 March 2016. We also refer to our submission emailed to you on 19 April 2016. The presiding member had raised one other issue during the hearing in relation to the review applicant's brother's similar application in the UK.

Today, the review Applicant's brother [Mr F] phoned the writer from the UK and confirmed that the decision made in his favour by the First-tier Tribunal (Appeal No. [redacted] - heard 12/3/12) was not appealed by the Secretary of State for the Home Department. He also confirmed that he was granted asylum on the basis of this decision.

We understand a copy of the Tribunal's Determination and Reasons have already been provided to the Tribunal previously.

Kindly forward the letter to the presiding member.

Thank you for your assistance.

18    There was no evidence of receipt of or any reply to the letter.

Tribunal's decision

19    The Tribunal's reasons were published on 1 May 2017.

20    The Tribunal in its reasons acknowledged receipt of the submissions of 7 April 2016 (presumably a reference to the re-filed version).

21    In short, the Tribunal found there was no real chance that the appellant would suffer serious harm if returned to Zimbabwe, and there was no real risk the appellant would suffer significant harm as identified in the complementary protection guidelines.

22    The appellant's evidence was that he had been signed up as an MDC member when he was a child and that he would say he was 'affiliated' with the MDC but he was too young to have been an MDC leader.

23    The Tribunal had regard to Department of Foreign Affairs and Trade (DFAT) country information which assessed that mere membership of the MDC does not mean that an individual would attract adverse attention from the government or face community prejudice: the profile and activities of an individual are more relevant to an individual's risk profile than MDC membership.

24    The Tribunal accepted that the DFAT assessment was that MDC members face a moderate threat of violence from ZANU-PF supporters in that they are subjected to occasional violence, mostly from ZANU-PF supporters and that all MDC members face a moderate level of official discrimination throughout Zimbabwe.

25    Next, the Tribunal recorded that the current DFAT assessment is that Zimbabwean authorities only take an interest in the return to Zimbabwe of high profile individuals.

26    The Tribunal referred to a DFAT assessment that family members of MDC members, including high profile MDC members, have a low risk of harm in Zimbabwe for their association with their MDC family member.

27    The Tribunal accepted that the appellant's father and Mr F were members of the MDC, and that despite some inconsistent evidence, the appellant's father sought pre-selection in Bikita for the MDC.

28    The Tribunal also accepted that Mr F was an MDC member who was a teacher, attended MDC rallies and was granted asylum in the United Kingdom.

29    The Tribunal noted that 'very little is known in relation to [Mr F's] asylum case as the [UK] decision was not provided to the Tribunal'. The Tribunal also noted that the appellant appeared to know very little about Mr F's involvement with the MDC and when asked whether Mr F was involved in any MDC activities he stated that 'I believe he was'.

30    The Tribunal did not accept that the appellant was ever assaulted or threatened because of his connections with the MDC. The Tribunal did not accept that the appellant's father or other brothers were killed by the ZANU-PF or their supporters for their connection with the MDC. When the Tribunal asked the appellant whether any of his family members had been harmed or threatened the appellant referred to a letter from Mr F, but was unable to say what the letter said and could provide no details about any harm that had occurred to Mr F.

31    The Tribunal accepted that MDC members face a moderate threat of violence. However, it did not consider the appellant had any real involvement with the MDC at any point in time. The Tribunal said that while it accepted that the appellant's father may have signed his sons up as MDC members when they were children, and that the appellant may have attended MDC events as a child, the appellant has not shown any significant involvement with the MDC as an adult or since he moved from Bikita in 2001. The Tribunal said that significantly, unlike Mr F, the appellant has not had any involvement in Zimbabwean politics since he arrived in Australia and it did not accept that he would have an involvement in politics if he were to return.

32    The Tribunal did not accept that there is a real chance that the appellant would be harmed if he returned to Zimbabwe on account of being a family member of his father or Mr F, or anyone else in the family. The Tribunal noted that according to his evidence, the appellant was never harmed or threatened in Harari from when he arrived there in 2001 until he left for Australia in 2007. The Tribunal noted that at that time, the appellant's father had been an MDC member and had sought pre-selection and in addition Mr F was then heavily involved with the MDC. Despite those claims, which were accepted, the appellant was never threatened or harmed because of the involvement of his family with the MDC.

33    The Tribunal considered that it appeared that the appellant was of no interest to ZANU-PF and its supporters and that its position is supported by the fact that the appellant appeared to have little subjective fear of living in Harari. The Tribunal also took into account that the appellant had been in Australia since 2007 but did not make an application for protection until 2013, giving further weight to the view that he did not have a subjective fear of living in Zimbabwe.

34    The Tribunal also noted that before the appellant left Zimbabwe he had a number of siblings who were already living in the United Kingdom, but he was never harmed or threatened because of his family members living overseas. Similarly, the appellant never reported that his mother, who still resides in Bikita in Zimbabwe, has ever been harmed or threatened. The appellant did not claim that his mother had been harmed despite Mr F claiming to be politically active in the United Kingdom and having been granted asylum there. The Tribunal found that the appellant was not a high profile individual and would be of no interest to the Zimbabwean authorities.

35    Of some relevance to the appellant's argument is the fact that the Tribunal expressly noted it did not have a copy of the UK decision. The Tribunal also noted that the appellant was unable to provide further information. It had already accepted that Mr F was an active MDC member and clearly also took into account information provided by the appellant as to Mr F's ongoing involvement in politics (as is revealed by its findings referred to at [31] above).

36    There is no evidence that the Tribunal in fact received the UK decision relating to Mr F before or after the hearing. The Agent provided a bundle of documents to the Department of Immigration and Citizenship (as it then was) in June 2013, including a covering letter from Mr F's solicitors to Mr F advising him that his appeal had been successful on the grounds of asylum, and also enclosing a copy of the letter to that effect received by Mr F's lawyers from the UK Border Agency that purportedly attached the UK decision. The two letters formed part of the Department's file that was apparently available to the Tribunal. The UK decision itself is not amongst those documents.

37    The UK decision was provided and marked for identification before the primary judge. The appellant sought to rely on it on this appeal and it was attached to an affidavit. Counsel for the Minister accepted that I could have regard to it insofar as it establishes that a decision was in fact published with respect to Mr F's asylum.

Federal Circuit Court proceedings

38    On 1 June 2017 the appellant filed an application with the Federal Circuit Court seeking review of the Tribunal's decision. Most of the grounds are not relevant to this appeal. However, one of the grounds was that:

The Tribunal did not take into full consideration of my brother's Asylum Protection from the United Kingdom Government and his active MDC (opposition) membership.

39    On 7 November 2017 the hearing of the matter came before the primary judge and was adjourned at the appellant's request. The appellant raised then his contention that the UK decision had been provided to the Tribunal, relying on the 28 April 2016 letter. The appellant was unrepresented and in detention at the time of the hearing. However, the Court made orders providing the appellant with time to put on evidence if he wished to do so (as is apparent from the primary judge's reasons at [25]-[26]).

40    On 22 November 2017 the Minister's solicitors provided the Gao affidavit to the appellant. The hearing took place on 29 November 2017 and the primary judge dismissed the application on the same day, giving ex tempore reasons. The appellant appeals from that decision.

41    The paragraphs of the primary judge's reasons relevant to this appeal (the references to the applicant being to the appellant) are:

[5]    During the course of the hearing the Tribunal raised with the applicant that it did not have a copy of any decision in relation to his brother's alleged refugee status granted in the UK. The Tribunal raised that with both the applicant and the applicant's representative. The Tribunal gave the applicant an opportunity to put on further material. It is apparent from the transcript of the hearing that the applicant and the applicant's representative were on notice from what occurred at the hearing that the Tribunal did not have any copy of a decision in respect of the applicant's brother's refugee status.

[6]    The applicant's representative sent a letter to the Tribunal on 28 April 2016 referring to the hearing and referring to a submission advanced on 19 April 2016 and expressly referring to the issue raised by the Tribunal member in respect of the issue concerning the brother's application for refugee status in the UK. The letter indicated that the applicant's brother had phoned the solicitor from the UK and confirmed that the decision made in his favour was not appealed. The solicitor's letter noted that the brother confirmed that he was granted asylum on the basis of the decision. The letter then says

We understand a copy of the Tribunal's Determination and Reasons have been provided to the Tribunal previously.

[7]    There is no basis for any such statement. The Tribunal had made clear at the hearing that no such copy of the decision had been provided. The lawyer's letter does not identify any basis upon which it could be concluded that a copy of the decision had been provided to the Tribunal in circumstances where the applicant and the applicant's representative were on notice of the fact that the decision had not been provided to the Tribunal. The letter dated 28 April 2016 does not give rise to any denial of procedural fairness in the Tribunal not responding further in circumstances where it had already made clear that it had received no such decision.

…

[29]    Materially, when given the opportunity to do so, no evidence was adduced to support the basis for the assertion in the letter of the solicitors that the decision had been provided to the Tribunal or to provide any basis upon which this Court could find that the Tribunal was provided with the decision. For the reasons earlier given, I find that no such decision was provided to the Tribunal.

[30]    Further, I find that the circumstances in which the Tribunal clearly raised with the applicant and the representative that it did not have a copy of the decision, both the applicant and the solicitor were on notice of that state of affairs and the solicitor’s letter did not give rise to any denial of procedural fairness in circumstances where the solicitor suggested an understanding without any identifiable basis that a copy of the decision may have been provided to the Tribunal. These were circumstances where the applicant and his representative were on notice that no such document had been provided. Further, the applicant having been given the opportunity to do so has not put on any evidence to support the document, being a decision in relation to his brother’s refugee status, being provided to the Tribunal.

42    The primary judge then dismissed the ground of review (which was ground 2 of those being considered), stating as follows:

[39]    In relation to Ground 2, the Tribunal took into account the material that was before it in respect of the applicant’s brother’s successful application for asylum. It was open to the Tribunal to find that those circumstances were different to the circumstances of the applicant in relation to his brother having been an active MDC member. No copy of the brother’s decision from the UK was provided to the Tribunal. There was no failure by the Tribunal to take into account and give genuine and meaningful consideration to the submissions and material before it in respect of the applicant’s brother’s asylum application. No jurisdictional error is made out by Ground 2.

Grounds of appeal

43    The amended notice of appeal to this Court contains two grounds:

Ground 1

The [Federal Circuit Court judge] erred in law in failing to find that the Tribunal denied the appellant procedural fairness by failing to correct the misapprehension that was evident in the correspondence from the appellant's representatives dated 28 April 2016 (CB 274), namely that the Tribunal was already in possession of a copy of the reasons for decision relating to a successful asylum application in the United Kingdom made by the appellant's brother.

Ground 2

The [Federal Circuit Court judge] denied the appellant procedural fairness in permitting the first respondent to rely on the affidavit of H Gao affirmed on 22 November 2017 at the hearing on 29 November 2017 without permitting the appellant an adjournment of that hearing to adduce evidence in response to that application.

Ground 1

44    The terms of the letter of 28 April 2016 are unhelpful. It is not clear whether the Agent is suggesting that he has provided the UK decision to the Tribunal since the hearing or that he is aware that a third party has provided it. Nor is it entirely clear whether or not he is suggesting that despite having been told during the hearing that the Tribunal did not have the UK decision, by the time of the letter he understood that in fact a copy had been provided during the hearing process.

45    As the primary judge identified, the 28 April 2016 letter provides no identifiable basis for the assertion that the Tribunal has been provided with a copy of the UK decision. The letter may have been correct or incorrect in its assertion - that question has not been answered.

46    By affidavit filed in this appeal, the appellant sought to give evidence as follows:

My Brother [Mr F] faxed papers to the immigration department before my AAT hearing. He also did that after the hearing. After he [did] so I did not see any reason to keep bothering the senior member. I did mention to him that I was in prison at the time and I was not allowed to have their number on my phone account. This made it hard for me to liaise with them but they could easily do so if they wanted to …

47    Taking into account that the allegation is one of denial of procedural fairness, I have taken the evidence into account. It does not assist the appellant. There is no description of the 'papers' and no reference to the UK decision. I cannot infer that the 'papers' comprised the UK decision, because clearly, as the Tribunal noted, it had before it various documents relating to Mr F's application. I also note that in submissions before the Federal Circuit Court the appellant said that his brother (Mr F) had called the Tribunal to verify that he had been awarded his asylum in the United Kingdom and that the details of that decision had been provided to the Tribunal. At that point the assertion did not rise beyond submission and there was no evidence to that effect.

48    The appellant's argument in this case is that having received the 28 April 2016 letter, the Tribunal was on notice that the Agent was operating under a misapprehension that the UK decision had been provided, and it took no steps to disabuse him of that misapprehension, so denying him the opportunity to ensure the UK decision was placed before the Tribunal before it made its decision (as an aside, there was no real time imperative for the Tribunal at that point - the reasons were not delivered until the following year). The appellant contends that he had been granted leave to file further material after the hearing and he lost the opportunity to fully exercise that grant of leave.

Appellant's submissions

49    The appellant submitted as follows:

(a)    the duty to afford procedural fairness has no fixed content. Such content is what is required in order to ensure that the decision is made fairly in the circumstances, having regard to the legal framework within which the decision is to be made: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 at [30];

(b)    fairness is not an abstract concept. The concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37];

(c)    taking into account those authorities, the question in this case is whether the appellant suffered practical injustice when the Tribunal failed to correct a misapprehension, or, put another way, did fairness require the Tribunal to correct the misapprehension about the material it had before it;

(d)    the issue of Mr F's asylum application was a central issue in this case;

(e)    it is referred to extensively in the Tribunal's reasons;

(f)    the appellant's claim of harm is predicated in part on the fact of his brother's involvement in the MDC;

(g)    it is accepted that it is for the appellant to advance whatever evidence or argument that he wishes to rely upon, but because the Tribunal did not reply to the 28 April 2016 letter or otherwise inform the appellant or the Agent of the Agent's apparent error, then the appellant proceeded on the basis that he had in fact put forward the evidence he wished to rely upon;

(h)    it is accepted that although Mr F had provided an authority for the Department of Immigration and Border Protection to seek information from the United Kingdom about his application, there was no obligation on the Tribunal to exercise that authority and hunt out the UK decision, but the existence of the signed authority is consistent with the appellant's desire to have the information before the Tribunal;

(i)    had the proceedings been adversarial, rather than inquisitorial, and had those appearing before the Tribunal made a mistake in assuming documents were before the Tribunal, then the obligations of the professional conduct rules may have required a barrister who was aware of such error to inform the other barrister (see for example r 23 of the Legal Profession Conduct Rules 2010 (WA)). Despite the proceedings being inquisitorial, as there was no-one else to correct the misapprehension, it should have fallen on the Tribunal to do so; and

(j)    although the error as to whether or not the UK decision had been provided lay with the appellant or the Agent, the error was fostered by the failure of the Tribunal to correct or respond to the letter.

50    Both parties acknowledged that:

(a)    the proceedings before the Tribunal are not inter partes but inquisitorial, and the Tribunal is not in the position of a contradictor: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at [11], [30]; Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187];

(b)    it was for the appellant to have advanced whatever evidence or argument he wished to advance in support of his claim that he was entitled to the visa. The Tribunal must then determine whether that claim is made out: Abebe v The Commonwealth at [187];

(c)    the Tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant's case might be better put or supported by other evidence: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 at [36] and [49]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]; and

(d)    there was no duty on the Tribunal to make its own enquiries: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [1].

51    Counsel for the appellant also raised the potential for the appeal grounds to have included an allegation of legal unreasonableness on the basis that a decision may be regarded as unreasonable where it is obvious that material is readily available which is centrally relevant to the decision to be made, and the decision maker proceeds to make a decision without obtaining that material: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170; WEI v Minister for Immigration and Border Protection [2015] HCA 51 at [49] (Nettle J).

52    However, the appellant did not consider it could be said that the decision was 'readily available' and did not pursue that point. There is perhaps some question as to whether it would in fact be difficult for the Tribunal to obtain a copy but it may be that the consent of Mr F directed to the Tribunal would have been required: the practicalities were not addressed. The Minister submitted that the document was not readily available although again, the practicalities were not addressed. In any event, I do not consider the appellant established that the document was 'critical'. The Tribunal had some information about Mr F and took that into account, assuming in the appellant's favour that Mr F was heavily involved in the MDC. The Tribunal proceeded on the basis that Mr F had been granted asylum and accepted information about Mr F provided by the Agent in the submissions and by the appellant (as is apparent from, for example, the matters summarised in [16] (as to Mr F's continued involvement in politics), [27], [28], [31] and [32] above). The Tribunal noted the absence of the UK decision but such 'noting' does not of itself indicate it considered Mr F's position was critical to the consideration of the appellant's claims. It provided reasons for distinguishing the position of the appellant from that of Mr F, based on the information provided by the appellant and the Agent, and taking into account country information. Importantly, it found that a mere family connection with an active MDC member was not sufficient for a person to be considered high profile or a target.

53    Therefore, it remains to determine this appeal on the basis of the two grounds set out in the amended notice of appeal.

Minister's submissions

54    The Minister relied upon the principles as to procedural fairness outlined above and in addition addressed the extent of the Tribunal's obligations and the role of the Agent.

55    As to the role of the Tribunal, the Minister referred to Div 4 of Pt 7 of Migration Act 1958 (Cth) (Act), which sets out how a review by the Tribunal is to be conducted. Section 422B of the Act provides that Div 4 contains an exhaustive statement of the rules of natural justice in relation to the matters it addresses.

56    Counsel submitted that the Tribunal complied with its obligations. The appellant had an opportunity to be heard. He participated in a hearing. The appellant was on notice that the Tribunal did not have a copy of the UK decision. The appellant was represented by the Agent at the hearing. Time was granted for further submissions to be provided after the hearing. The UK decision was not provided in that time.

57    The Minister submitted that as to the requirement that there be an opportunity to be heard, such opportunity, it has long been recognised, is not to ensure that a party takes the best advantage of the opportunity; the requirement is to ensure that a party is given a reasonable opportunity to present his case: Sullivan v Department of Transport (1978) 20 ALR 323 at 343 (Deane J).

58    The Minister suggested that the circumstances in which the appellant finds himself are a product of negligence, inadvertence or incompetence on the part of the Agent. That may or may not be the case, as the instructions provided to the Agent by the appellant are unknown. But certainly neither the appellant nor his Agent took steps to provide the UK decision within the time stipulated by the Tribunal, nor sought any extension of time for filing, nor ensured that the UK decision had in fact been received.

59    In that context, the Minister relies upon Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501 at [33] (where a migration agent had failed to inform the visa applicant of an adjourned hearing); SZSXT v Minister for Immigration and Border Protection [2014] FCAFC 40; (2014) 222 FCR 73 at [52] (where a migration agent concealed his involvement in a delay and deceived the visa applicant); SZVIA v Minister for Immigration and Border Protection [2016] FCA 1228 at [35] (where in issue was legal incompetence of the applicant's lawyer). Those cases distinguish between conduct that amounts to fraud on the Tribunal, as against mere negligence, inadvertence or incompetence. Only the former might justify judicial intervention. The position was addressed by the Full Court in SZLIX as follows (at [33]):

The Parliament, in Div 2 of Pt 3 of the Act, has created a series of offences relating to the giving of immigration assistance by unregistered migration agents. It has not gone on to reverse, in the way proposed in the respondent’s submission, such adverse consequences as may enure to a person in the enjoyment of the procedural fairness benefits provided by the Act as may be occasioned by reliance upon the immigration assistance supplied or to be supplied by an unregistered migration agent. Neither has the common law gone so far in its fraud doctrine: see SZFDE at [53]. This said, an agent may be fraudulent in his dealings with a visa applicant in such a manner as results directly in a fraud on the Tribunal in relation to the due discharge of its Pt 7 Div 4 functions. SZFDE is testament to this. But SZFDE requires that the agent in question is fraudulent in a way that effects the Tribunal’s Pt 7 decision-making process. An omission to notify the date of a hearing to a visa applicant may have adverse consequences for that applicant if, as here, the Tribunal proceeds to make a decision under s 426A in the applicant’s absence. But before that omission can properly be said to have occasioned a fraud on the Tribunal, it must itself be able properly to be characterised as a fraudulent omission vis-à-vis the visa applicant: SZFDE, at [51]. The simple fact of a failure to inform or bare negligence or inadvertence will not necessarily be sufficient to give rise to fraud on the Tribunal. As we have indicated, particularly having regard to the level of satisfaction required by Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 and 368 in cases where fraud is alleged, we do not consider that it was open to his Honour to infer fraud.

60    I note that it is not suggested by the appellant that the conduct of the Agent comprised a fraud on the Tribunal. At most, the conduct in failing to ensure the UK decision was provided at all or within time might be described as mere negligence, inadvertence or incompetence. Accordingly, the Agent's conduct alone would not warrant judicial intervention. However, according to the appellant, the distinguishing fact is that the Tribunal was on notice of the Agent's misapprehension prior to delivering its decision.

61    Finally, the Minister submitted that there are many examples where the Tribunal might receive evidence or documents that do not meet their description but it is not incumbent on the Tribunal to inform a visa applicant of the veracity of the documents. For example, it was submitted, a purported medical certificate might not in fact provide sufficient details for it to be probative or might only be a receipt but that would not oblige the Tribunal to inform the applicant that it is inadequate prior to making a decision. A similar argument might apply to a range of evidence or submissions that might be provided to the Tribunal or that an applicant might indicate he or she wishes to submit but fails to provide to a Tribunal. Counsel for the Minister somewhat reluctantly described this as a 'floodgates' argument, but contends (in effect) that such examples indicate that procedural fairness does not require the Tribunal to in effect take an interventionist supervisory role of the manner in which an applicant runs his or her case. The content of procedural fairness must be considered in the context of the Tribunal's statutory obligations and the circumstances of a particular case.

Consideration

62    Counsels' research did not reveal authorities that deal with the content of any obligation on the part of the Tribunal when it is given notice of a misapprehension such as in this case outside the extended time period for provision of submissions and where no extension of time has been sought. I would add to the factual matrix the ambiguity of the terms of the 28 April 2016 letter itself.

63    There are examples where the court has made an internal error relating to communications or filing and so made orders on an artificial basis. One example is provided by Patel v Minister for Immigration and Citizenship (No 4) [2012] FCA 1170, where submissions were not properly filed but were provided by email to Collier J's associate. The submissions were not brought to the attention of her Honour before orders were made on the papers. Submissions form part of the formal court record of proceedings. Accordingly, her Honour, having been informed of the issue, vacated the orders under r 39.05 of the Federal Court Rules 2011 (Cth), which permits in limited circumstances the varying or setting aside of orders after entry, including where there is an error arising from an accidental slip or omission. See also as to the exceptional circumstances in which such jurisdiction might be exercised: United Group Resources Pty Ltd v Calabro (No 6) [2012] FCA 431; Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 303; De L v Director-General, NSW Department of Community Services (No 2) [1997] HCA 14; (1997) 190 CLR 207 at 215.

64    To my mind, these authorities, concerned as they are with the finality of litigation and the particular circumstances that apply to applications to vary or set aside orders, are not sufficiently analogous to the circumstances of the Tribunal in this case. To the extent there was error, it was not on the part of the Tribunal. The error cannot fairly be described as mutual, and the circumstances cannot fairly be described as otherwise exceptional. The error was on the part of the Agent or the appellant, and there appears to have been an element of calculated risk in relying on information apparently from Mr F that suggested (at least to the Agent/appellant) that the UK decision may have been provided to the Tribunal directly by Mr F (not by the Agent or appellant). As already explained, there is simply no evidence the Tribunal ever received the UK decision.

65    Care must also be exercised in transposing ethical obligations that are imposed on a barrister in an adversarial regime to a member of the Tribunal. Whilst I can understand some disquiet at the fact the 28 April 2016 letter was unanswered, it does not follow that there was a denial of procedural fairness.

66    The question in this case is what the Tribunal had to do in order to accord the appellant procedural fairness.

67    The starting point must be Div 4 of Pt 7 of the Act, which is headed 'Reviewable Decisions: Conduct of Review'.

68    The effect of those provisions in the context of procedural fairness was recently described by Katzmann J in BLD15 v Minister for Immigration and Border Protection (No 2) [2018] FCA 790 as follows (at [24]-[25]):

Before going any further, it should be noted that the general law principles of procedural fairness are modified by the Migration Act. Section 422B(1) provides (and provided at all relevant times) that Division 4 of Part 7, which consists of ss 422B to 429A inclusive, and which deals with the conduct of a review by the Tribunal, "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with". Section 422B was introduced by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth). It was intended to overcome the decision in Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57. In that case the High Court held by majority that, in the absence of a clear legislative intention, the "code of procedure for dealing fairly, efficiently and quickly with visa applications" did not exclude common law natural justice requirements. The purpose of s 422B was to supply a clear legislative statement that it did: WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220 at [37], [57] (French J).

As the Full Court explained in Minister for Immigration & Citizenship v SZMOK (2009) 247 FCR 404 (Emmett, Kenny, and Jacobson JJ) at [9] "the matters that Div 4 deals with are to be identified by reference to its particular provisions and not by reference to its general subject matter". It is true that s 422B(3) requires the Tribunal, when exercising its powers and performing its duties described in Division 4, to act in a way that is fair and just. But that provision does not create a procedural requirement over and above what is expressly provided for in Division 4: SZMOK at [15]; see also Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [158]. Section 422B(3) was not intended to qualify s 422B(1); no other requirement of fairness is to be implied: SZMOK at [17]. In SZRMQ v Minister for Immigration & Border Protection (2013) 219 FCR 212 at [74] Robertson J adverted to a difference in approach where errors of translation are assessed for procedural fairness under the general law (with which that case was concerned) rather than where "the blunter question" posed by s 425 is involved. See also SZUYU v Minister for Immigration & Border Protection [2018] FCA 786 at [71]–[73] (Wigney J).

69    In this regard, I accept the Minister's submissions. It seems to me that there was no breach of any relevant provision by the Tribunal and no conduct that rises to a failure to accord procedural fairness. No practical injustice is established.

70    The strength of the appellant's case centred upon the Tribunal failing to respond, having (it is assumed) received the 28 April 2016 letter, and in circumstances where it commented on the absence of the UK decision in its reasons.

71    However, that failure to respond must be weighed against the following:

(a)    there is no evidence the UK decision was ever provided: it is not the case that evidence that was provided was overlooked;

(b)    the Tribunal put the appellant and the Agent on notice that as at the time of the hearing it did not have the UK decision;

(c)    whilst the provision of evidence was always a matter for the appellant, knowledge of the absence of the UK decision was disclosed by the Tribunal, emphasising the importance of the appellant attending to that step if he wished to do so;

(d)    the Tribunal afforded the appellant an ample opportunity to provide it, extending the time for the filing of 'documents' (not expressly limited to submissions) to 6 April 2016;

(e)    the appellant and the Agent both appear to have relied on the word of Mr F that the UK decision had been provided, and it was within their power to check that position was accurate (within the extended time provided or even afterwards) if they wanted the Tribunal to receive the document;

(f)    therefore, there is no substance to an allegation that the appellant did not have the opportunity to provide the UK decision or was deprived of that opportunity through the Tribunal's conduct; and

(g)    the Tribunal gave the appellant an opportunity to be heard, it received submissions made on his behalf, it gave the appellant additional time, it specified that additional time and there was no obligation under Div 4 of Pt 7 on the part of the Tribunal to take further action to obtain the information.

72    In those circumstances, I consider the Tribunal complied with its obligations under Div 4 of Pt 7 including its obligation to accord procedural fairness. It follows that I do not consider error is disclosed in the decision to deny the relevant ground of review before the Federal Circuit Court, and ground 1 is dismissed.

Ground 2

73    This ground can be dealt with briefly. The Gao affidavit contained transcript of the hearing at which the appellant was present by video-link. The transcript confirmed what was already disclosed to the appellant and his Agent by the Tribunal during the hearing: that it did not at that time have a copy of the UK decision.

74    The Gao affidavit was served on the appellant by sending it by email to the email address notified as his email address for service, seven days prior to the adjourned hearing. This was verified by an affidavit affirmed on behalf of the Minister.

75    The affidavit comprises five short paragraphs as to the process for obtaining the transcript and two portions of transcript of one and a half pages each (as reproduced in these reasons). I consider that seven days notice of the affidavit, taking into account its content, was sufficient in the circumstances and did not operate to prejudice the appellant or deny procedural fairness during his hearing before the Federal Circuit Court. The appellant was on notice from the Tribunal's reasons that its position was that it had not received the UK decision. The appellant knew its receipt was in issue despite the letter of 28 April 2016. The appellant complains that the Gao affidavit was filed on the very day he was due to file any affidavits, and so he was denied the opportunity of dealing with the contents of the Gao affidavit. There is no suggestion that the appellant asked or sought to file an affidavit after that date and was refused the opportunity to do so. There is no suggestion he sought to file anything apart from his submissions, to which I have already referred. The primary judge clearly granted the appellant the opportunity to provide evidence before the hearing and there is no suggestion that the time for filing any evidence would not have been abridged had he raised it with the primary judge. No unfair denial of an opportunity to address the Gao affidavit or practical injustice is made out.

76    Accordingly, ground 2 is dismissed.

Interlocutory application

77    Prior to obtaining pro bono assistance from Counsel, the appellant also filed an interlocutory application seeking, relevantly, that the Court allow him to introduce testimony of his lawyer and brother, although there were no statements from them before the Court. As dealt with above, I accepted into evidence the statement as to his brother faxing papers. I have also had regard to the UK decision, but on a limited basis (that is, to establish that the decision in fact exists). I did not have regard to it more generally, taking into account my view that there was no denial of procedural fairness (and so I did not need to consider whether or not it may have effected any relief had a lack of procedural fairness been established). The appellant's Counsel did not suggest at the hearing that it should be given regard for any other reason. Clearly, as the Minister submitted, it could not have been relied upon by me to make findings contradicting the Tribunal or to otherwise engage in impermissible merits review.

Conclusion

78    Neither the decision of the Federal Circuit Court nor that of the Tribunal discloses any error. The appeal should be dismissed with costs.

79    I wish to acknowledge the thoughtful and considered pro bono assistance of Mr Robertson, who appeared for the appellant.

Associate:    

Dated:    31 October 2018