FEDERAL COURT OF AUSTRALIA

 

NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134

IMMIGRATION – appeal – refugees – decision of Minister’s delegate – protection visa sought on basis that appellant was a practitioner of Falun Gong – where Minister’s delegate made adverse findings on credibility – where Minister’s delegate failed to put information to the appellant – whether denial of procedural fairness – whether failure to have regard to information supplied by appellant – whether Minister’s delegate failed to consider future risk of harm to appellant in circumstances where appellant’s claim to be an active proponent of Falun Gong in Australia had been accepted.

PRACTICE & PROCEDURE – appeal – fresh evidence – new grounds – whether expedient in the interests of justice.

Migration Act 1958 (Cth)

 

Abebe v Commonwealth (1999) 197 CLR 510 discussed

Allesch v Maunz (2000) 203 CLR 172 cited

Branir v Owston Nominees (No. 2) Pty Ltd (2001) 117 FCR 424 discussed

Cabal v United Mexican States (2001) 108 FCR 311 cited 

CDJ v VAJ (1998) 197 CLR 172 discussed

Coulton v Holcombe (1986) 162 CLR 1 discussed

Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 followed

Kalala v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 212 followed

Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188 cited

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 cited

Minister for Immigration & Multicultural Affairs v Al Shamry 110 FCR 27 cited

Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 cited

Re Minister for Immigration and Multicultural Affairs;  Ex parte Miah (2001) 206 CLR 57 cited

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 followed

Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 152 discussed

SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 769 cited

Tickner v Chapman (1995) 57 FCR 451 discussed

VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 followed

Warramunda Village v Pryde (2002) 116 FCR 58 cited

 

NAJT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

N 627 OF 2003

 

HILL, MADGWICK & CONTI JJ

24 AUGUST 2005

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 627 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:	NAJT APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT   REFUGEE REVIEW TRIBUNAL OF AUSTRALIA SECOND RESPONDENT
JUDGES:	HILL, MADGWICK & CONTI JJ
DATE OF ORDER:	24 AUGUST 2005
WHERE MADE:	SYDNEY

 

THE COURT ORDERS THAT:

 

1.                  The Refugee Review Tribunal be joined as the second respondent.

2.                  Leave be granted to the appellant to file and rely on her proposed amended notice of appeal.

3.                  That notice of appeal be deemed to have been further amended by the insertion of a ground that the first respondent’s delegate denied her natural justice by not inviting her to comment on the use he proposed to make of the return of the letter of 16 April 2002.

4.                  Except as to costs, the appeal be upheld.

5.                  The decision of the delegate be quashed.

6.                  The first respondent by herself or a delegate (other than the delegate who has already considered this matter) consider and determine the appellant’s visa application according to law.

7.                  The first respondent is to pay the appellant’s costs of the appeal (but not at first instance) as assessed or taxed.

8.                  Orders 4 to 7 inclusive are subject to the exercise of leave, now given, to the first respondent to file and serve within 14 days any further evidence and to seek reconsideration of those orders in the light only of such evidence.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

 

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 627 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:	NAJT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT   REFUGEE REVIEW TRIBUNAL OF AUSTRALIA SECOND RESPONDENT

 

JUDGE:	HILL J
DATE:	24 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HILL J:

1                     The appellant appeals against the decision of a judge of this Court dismissing her application for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), refusing her application for a protection visa and/or the decision of the Refugee Review Tribunal that it did not have jurisdiction to review the delegate’s decision.

2                     The appellant is a citizen of the People’s Republic of China.  She arrived in Australia on 8 February 2002 and applied to the Minister for a protection visa on 22 March 2002.  Her application stated that she feared persecution in China due to her practice of Falun Gong.  She claimed that she had been subjected to cruel and inhuman treatment in China.

3                     On 16 April 2002, a letter from the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) was sent to the appellant at an address previously nominated by her as her postal address.  The letter and attached country information raised issues which were of concern to the Minister’s delegate for the appellant’s comment but was returned to the Department on 9 May 2002, undelivered.

4                     On 22 May 2002, the Department received a letter from the President of the Fa Lun Fo Xue Association of Australia (“FLFX”) dated 14 May 2002.  The letter noted that the appellant was one of 31 genuine practitioners of Falun Gong in Australia and would face persecution if she was returned to China.

5                     The appellant’s application was refused on 28 May 2002, at which time, a delegate of the Minister wrote to the appellant notifying her of this decision.  That letter was sent to the appellant by registered post.  Although it is common ground that the appellant did not in fact receive the letter, s 494C(4)(a) of the Migration Act 1958 (Cth) (“the Act”) operates to deem receipt of the letter, by the appellant, on 6 June 2002. 

6                     The appellant claims that it was not until 11 December 2002 that she became aware that her application had been refused.  The next day, she applied to the Tribunal for review of the delegate’s decision.  By this time her application for review was incompetent because it had been made out of time.

7                     The delegate’s decision is an RRT reviewable decision and accordingly, under s 412(1)(b) of the Act, Reg 4.31(2)(b) prescribes that an application for review of that decision must be made to the Tribunal no later than 28 days after notification of the decision.  In this case, the prescribed period expired on 4 July 2002 and the Act contains no provisions to allow an extension of time.  On 6 February 2003, the Tribunal determined that it did not have jurisdiction to review the delegate’s decision.

8                     On 20 February 2003, the appellant filed her application to this Court.  The application was made, inter alia, under the Judiciary Act 1903 (Cth).  Section 39B(1) of that Act confers jurisdiction on the Federal Court to grant relief against a decision of the Minister or a member of the Tribunal, subject to subsections 474(2) and (3) of the Act which deny jurisdiction in respect of any decision which is a “privative clause decision”.  However, a purported decision which involves a failure to exercise jurisdiction or an excess of jurisdiction is no “decision” at all and thus not a privative clause decision to which those sections apply: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

9                     The learned Primary Judge considered that the Tribunal was correct in deciding that it did not have jurisdiction to determine an application made to it outside of the prescribed time limits imposed by the Act.  Accordingly, it was a privative clause decision and insofar as the appellant’s application related to that decision, it was dismissed by the Primary Judge. 

10                  The Primary Judge then considered the decision of the delegate to refuse the appellant’s application for a protection visa.  Noting that the delegate’s assessment of the facts (as put forward by the appellant and contained in country information) and the findings of the delegate in relation to the credibility of the appellant’s claims were all open to the delegate to make, the learned Primary Judge concluded that no error of law could be discerned in the delegate’s decision.  Accordingly, his Honour dismissed the appellant’s application for review.

11                  The appellant then appealed from the decision of the learned Primary Judge.

The course of the appeal and procedural aspects

12                  The appeal was first heard on 5 December 2003.  The appellant was not represented.  It was clear that she was unable to present the appeal without legal assistance although she had the assistance of an interpreter.  The Court was of the view, following that hearing, that there were aspects of the decision of the Tribunal and of the learned Primary Judge that warranted an order being made under Order 80 of the Federal Court Rules that counsel be appointed to represent her.  An order was made accordingly.  The appeal was ultimately resumed after a considerable lapse of time.  It is not suggested that the delay was in any way due to counsel.  Indeed the Court is indebted to counsel who undertook the task of representing the appellant and for the assistance which has been given to the Court in the presentation of the appeal and the Court wishes to note its gratitude to counsel for the considerable amount of work which was put into the preparation of written submissions and oral argument.

13                  On the resumed appeal, pro bono counsel sought leave to file amended grounds of appeal and to the extent that the grounds sought to be raised had not been raised before the learned Primary Judge, an amended application.  Application was also made to read, in the appeal, affidavit evidence from the appellant.  The Court reserved its decision both with respect to the granting of leave to file the amended application and amended notice of appeal and as to the admission of some parts of the evidence sought now to be adduced in support of the new grounds of appeal.  No challenge was made to the conclusion reached by the learned Primary Judge that the Tribunal had no jurisdiction to review a decision of the Minister where the application for review was lodged out of time.  Hence the only matter at issue in the appeal was the application for judicial review of the decision of the delegate refusing the application for a protection visa.

14                  Counsel for the Minister accepted that the appellant had not been represented before the learned Primary Judge.  However, it was pointed out that an appeal to this Court from an application for judicial review should be confined to the matters raised in the Court below and should not be treated as a fresh application to the Court raising matters that were never considered in the Court below.  Reference was made to Sathiyanathan v Minister for Immigration and Muticultural Affairs [2000] FCA 210.

15                  The application to amend the grounds of appeal raised a number of matters.  Of these, the most contentious was a ground which raised what was said to be a denial of procedural fairness in failing to attempt to contact the appellant to comment upon potentially adverse information when an attempt to do so by registered mail failed.  I will deal with the application for leave and admission of evidence in respect of that matter under the heading: “Adverse findings without reasonable steps to notify”.

16                  Another matter which was advanced related to what was said to be a failure to take into account a letter from the local Falun Gong officials in Australia.  I shall deal with both the application for leave to argue this matter on the appeal and the evidence sought to be adduced in respect of it under the heading “Failure to have proper regard to the FLFX letter”.

17                  The remaining matters raised on the appeal involved no matters of fact and it is difficult to see that the respondent Minister would be prejudiced by leave being given to the appellant to argue them even if they had not been the subject of the application originally made.  Most, in any event, were matters raised in the application before the learned Primary Judge.  To the extent that leave is necessary, I would accordingly grant leave to raise these matters in the appeal and to file an amended application covering them.

18                  One of the affidavits sought to be read was concerned with the evidence which the appellant could have called had she received the letter from the first respondent dated 16 April.  The evidence relates to the first of the matters to which I have made reference above.  It was objected to on the basis of relevance.  In my view, if the appellant had established a denial of natural justice in the failure of the delegate to attempt to contact her by telephone, her case would not have been assisted by the evidence sought to be adduced.  It is not necessary in a case such as the present for a person denied procedural fairness to give evidence of what he or she would or might have said if given the opportunity to comment.  It is sufficient if the person might have been able to call evidence: NAAG of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCAFC 135. I would accordingly reject the evidence. 

19                  The second affidavit of the appellant was concerned with the circumstances surrounding the appellant learning of the rejection of her application by the Tribunal and the non-receipt of the letter from the first respondent, dated 28 May 2002.  The affidavit also details some attempts the appellant had made to obtain legal representation.  In my view there is little of relevance in the affidavit other than the statement that the appellant had received no telephone call from the delegate.  Leave was given to read the affidavit in respect of all matters other than the evidence relating to the non-receipt of telephone calls.  The transcript suggests that leave was also given to read the affidavit in respect of the non-receipt of telephone calls from the delegate.  Whether the transcript is, in this respect, accurate, does not accord with my recollection, but ultimately is of no significance.

The grounds for judicial review

20                  The amended application contained six grounds of review.  These grounds may be summarised as follows: 

1.                  The delegate made an adverse finding against the appellant based on her failure to respond to his letter dated 16 April 2002 without having taken reasonable steps (such as the making of a phone call to the appellant) to ensure that the appellant had received the letter and his failure to do so, in the circumstances of this case, gave rise to a denial of procedural fairness and jurisdictional error.  The adverse finding was that the failure to respond to the letter meant that the applicant was not interested in her claim and reflected upon the genuineness of it.

2.                  The delegate failed to give proper regard to the FLFX letter dated 14 May 2002, giving rise to a failure to comply with s 54(1) of the Act and/or a denial of procedural fairness and jurisdictional error.

3.                  The delegate failed to make findings in relation to a number of the appellant’s claims concerning her Falun Gong activities and failed to carry out the exercise required by Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, giving rise to jurisdictional error.

4.                  The delegate’s decision contravened the principle stated by the High Court of Australia in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 180, giving rise to jurisdictional error.

5.                  Failure by the delegate to consider whether the appellant might maintain the same level of Falun Gong involvement on a return to China and, if so, whether she faced a real chance of persecution – amounting to jurisdictional error.

6.                  The delegate misapplied the “real chance” test in rejecting the appellant’s claim of risk of persecution based on her involvement in a number of public protests in Australia – giving rise to jurisdictional error.

Adverse findings without reasonable steps to notify

21                  It is submitted that the delegate of the Minister made an adverse finding against the appellant in circumstances where the appellant was denied procedural fairness and that this conduct gave rise to jurisdictional error.

22                  The relevant circumstances can be shortly stated.  On 16 April 2002, the delegate wrote to the appellant raising issues of concern to the delegate.  The letter attached extracts of country information and invited the appellant to comment upon them within 28 days from “receipt” of the letter.  The letter was sent to the appellant by registered mail.  It was returned undelivered to the delegate with a notation on the envelope: “unclaimed”.  The delegate in his decision dated 28 May 2002 wrote:

“I note that my letter to the applicant was returned to this office unclaimed on 9 May 2002 having been sent to the last postal address supplied by her on 22 March this year.  I believe that the applicant’s failure to make adequate arrangements in maintaining contact with the Department reflects poorly on the genuineness and well foundedness of her claims of fear of persecution.”

23                  Counsel for the Minister accepted as evidence what had been written by the appellant to the Tribunal in a letter dated 29 December 2002.  In that letter the appellant said:

“I am still not sure of exactly why I didn’t receive the registered mail.  The most probable explanation would be that the postman came when nobody was home and left a note in the mailbox.  Though not quite likely, but I possibly had mistaken the parcel-collection note to be some advertisement and threw it away.  So the letter was returned as unclaimed mail.”

24                  It is common ground that the delegate had in his file two telephone numbers which he could have used to call the appellant.  There was also material before the delegate to the effect that the appellant did not speak English.  It is possible, but not profitable, to speculate why the letter was not received by the appellant.  Her statement is accepted for what it is worth.

25                  It was submitted on behalf of the appellant that before rejecting an applicant’s claim in reliance on a failure by the applicant to respond to particular communications by the decision-maker, the decision-maker must take reasonable steps to ensure that the applicant in fact received the communication.  It was submitted that in the circumstances of the present appeal it was unreasonable for the delegate not to attempt to contact the appellant by telephone.  It was further submitted on behalf of the appellant that to draw the inference which the delegate drew from the failure to respond to his invitation to comment upon matters of concern without attempting to contact the appellant by telephone was a breach of procedural fairness.  Reference was made to the decision of the Full Court of this Court in Minister for Immigration and Multicultural and Indigenous Affairs v George [2004] FCAFC 276 and Minister for Immigration and Multicultural and Indigenous Affairs v Scar (2003) 198 ALR 293 at [37].

26                  George was a case where the decision being challenged was a decision to remove the respondent on character grounds.  The Full Court said at [52]-[53]:

“Where a decision is based on information or material that, unbeknownst to the decision-maker, is false or incorrect, that may not give rise to jurisdictional error, even though the decision may be objectively unfair, so long as there was in fact information or material before the decision-maker on which the decision could be based.

However, different considerations arise where, for whatever reason, a visa holder has not in truth been afforded the right to be heard.  Where the Minister believes, erroneously, albeit on reasonable grounds, that a visa holder has been notified and proceeds on that untrue basis, there will be an error.  The question is whether that error is a jurisdictional error”

In that case their Honours held that there was a jurisdictional error.

27                  In the latter case it was said:

“…it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal.  The statutory obligation upon the Tribunal to provide a ‘real and meaningful’ invitation exists whether or not the tribunal is aware of the actual circumstances which would defeat that obligation.  Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances … where the fact or event resulting in unfairness was not realised by the Tribunal.”

28                  It might be noted that the provisions of s 425 of the Act apply only to the case of applications before the Tribunal and not to cases where the original application is before a delegate of the Minister. 

29                  For the respondent Minister, it was submitted that there was no evidence before the Court whether or not the delegate attempted to contact the appellant by telephone so that there was no factual basis to support the appellant’s case.  Further, it was submitted that there was no obligation on the part of the appellant to seek additional information having regard to the provisions of s 54(3) of the Act.  Finally, it was submitted that s 62 of the Act confirmed that the delegate did not have to take any further action to obtain a response from the appellant after she did not reply within the 28 days provided for in the delegate’s letter.

30                  Taking these points in reverse order, s 62(2) provides that if an applicant for a visa is invited to comment on information and does not give the comments within the time stipulated the Minister may make his or her decision without taking any further action to obtain the applicant’s views.  The problem with the Minister’s argument, if there is a problem, is that it presupposes that a letter sent to the appellant by registered mail, but then returned unopened suffices as an invitation to comment.  To say this is merely to state the problem.

31                  As to the second of these matters, what is said is inconsistent with the decision of the High Court in Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22.  That case held that the delegate was bound, on the facts, to afford the applicant the opportunity to be heard on the question whether the change of government in the country of nationality would make a difference to the case he had put forward.  Failure to do so was a breach of procedural fairness.  Put simply, there was an obligation upon the delegate to afford an applicant the opportunity to comment upon material that might be adverse to his or her case.  This was so despite that the provisions of s 54 and related provisions purported to, but did not constitute a “code” defining what did or did not comprise procedural fairness.

32                  The first of these matters is more difficult.  The submission is tied in with the question of the reception of the appellant’s affidavit evidence that she received no telephone call and the allowance of grounds of appeal raising, for the first time, the issue of procedural fairness.

33                  It was submitted for the Minister that had the matter been raised at first instance it would have been open to the Minister to call evidence, if she could, that the delegate had attempted, unsuccessfully to contact the appellant by phone.  Hence it was submitted the appellant should not be entitled now to put a case before the appellate court which raises, as an issue, the question whether the delegate did make other attempts to contact the appellant.  Further, it is submitted the Court should reject the appellant’s evidence so far as it says that the appellant received no phone calls. 

34                  Counsel for the Minister relied upon the well known statement of principle in the High Court in Coulton v Holcombe (1986) 162 CLR 1 at 7-8 where their Honours said:

“In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards”.

35                  It was submitted by counsel for the appellant that it is the responsibility of the party seeking to oppose an application for leave to argue a new point on appeal to “assist the court in respect of the prejudice or lack of it, to his or her client in the face of such matters being raised” and to be frank and candid in saying whether or not that party’s case would have been conducted differently if the point had been raised at the trial: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [38].

36                  Reference is made also to the decision of the High Court in CDJ v VAJ (1998) 197 CLR 172 at [100]-[114] where the point is made that the purpose of the power to admit further evidence is to ensure that the proceedings not miscarry.  As their Honours said:

“The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures.”

However, Branir makes it clear at [37] that it was beyond question that if a new matter was raised in an appeal and evidence could have been given which “by any possibility could have prevented the point from succeeding, the point cannot be taken”.

37                  In my view, to allow the appellant to raise on the appeal an issue which calls into question whether the delegate telephoned or sought to telephone the appellant and if not, whether he should have telephoned the appellant, would produce unfair prejudice to the respondent Minister if, indeed, that is a relevant question.  That unfairness is demonstrated by the fact that the appellant would, then, on the appeal seek to raise the inference that no attempt had been made to contact the appellant because no evidence on the matter was called. 

38                  I would accordingly refuse leave to permit the appellant to raise on the appeal this issue.

39                  If leave were, notwithstanding my view, granted, the resolution of the issue is not without difficulty.  In favour of the appellant it can be said that it is now clear following the decision of the High Court in Miah that procedural fairness applies to the consideration of an application by the delegate.  So much is common ground.  It might then be said that for the delegate to make an adverse finding, namely the indifference of the appellant flowing from a failure to notify a change of address, without giving the appellant the opportunity to be heard is a breach of procedural fairness constituting jurisdictional error.  It might also be said that the Tribunal might have reached a different conclusion had it not drawn the adverse inference.

40                  The opposing view is also not without substance.  It is not a matter of accident that     s 52(3A) requires the appellant to notify an address at which she proposes to live and changes of such an address (s 52(3B)).  Section 494A-C of the Act makes it clear that where the Minister is permitted to give a document, that document will be taken to be delivered, inter alia, if dispatched by pre-paid mail.  There may be doubt whether that section has relevance here.  The appeal was argued, however, by both sides on the basis that it did.  But whether or not it does, it indicates a parliamentary intention that communication by mail to the notified address will suffice as a mode of communication with an appellant in a case such as the present.  A fortiori if the letter is, in fact, forwarded by registered post.  If a letter is returned unopened because of a failure to deliver it, it is unreasonable, in my view, to expect that the Minister would then attempt other avenues, which might or might not lead to communication with the relevant applicant. 

41                  It is a well established principle that the content of natural justice is to be ascertained by reference to the statutory provisions as well as by reference to the circumstances of the case: Kioa v West (1985) 159 CLR 550 at 563.  In the circumstances of the present case, that means that the content of natural justice will fall to be determined having regard to the provisions of ss 52(3A) and 494B.  It is also not irrelevant that delegates of the Minister are required to make decisions on visa applications without undue delay.  Indeed, that is the policy behind s 63(2) of the Act.  Should the applicant be dissatisfied with the delegate’s decision, there remains to an applicant the ability to apply to the Tribunal for review.  As is clear (albeit unfortunate in the present case), that is the subject of time limits and an applicant who does not receive the notification of decision may find himself or herself out of time to obtain a review.  However, the legislature does not contemplate that persons notified of matters, or invited to comment on matter, ignore attempts to serve by registered mail. 

42                  Not without some doubt I am inclined to the view that since there was no obligation upon the delegate to make any attempts to contact the appellant in other ways once the procedure of registered mail had been implemented it cannot be a breach of procedural fairness if the delegate did not make any attempt to contact the appellant by telephone (if indeed that was the case).  The legislation brought about the result that the invitation to comment upon the matters of concern had been received even if this result is contrary to the actual facts.  In this case it is difficult to see why it should be said that it is a further breach of procedural fairness to draw an inference from the return, undelivered, of the registered letter that the applicant had moved without advising the delegate (and so lacked interest in her claim (when the attempt to contact by registered post had failed, without giving her an opportunity to be heard by some further attempted contact).

43                  Ultimately, this is not a matter which I have to decide, having regard to my view that leave should be refused the appellant to amend her application and notice of appeal to raise the issue. 

Failure to have proper regard to the FLFX letter

44                  The appellant’s second ground of appeal alleged failure by the Tribunal to have proper regard to the letter of 14 May 2002 from the President of the FLFX stating that the appellant was one of 31 genuine practitioners of Falun Gong in Australia and would be persecuted if required to return to China. 

45                  It was said that the delegate in his decision, by failing to take this evidence into account, had failed to comply with s 54(1) of the Act and/or had denied to the appellant procedural fairness.  It was said that a proper consideration of the letter would have required a finding that the letter was genuine and thereafter, consideration as to whether it was corroborative of the claims of the appellant.  It was said that accordingly, there was a jurisdictional error which entitled the appellant to relief.

46                  What s 54(1) when read together with s 55 requires is that the decision-maker engage in a real process of consideration of information submitted – an “active intellectual process directed at the information” (see Singh v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 109 FCR 152 at [50] and the cases there referred to).

47                  The delegate’s record of decision notes that he had received the letter from Mr Wei claiming that the appellant was one of 31 genuine Falun Gong practitioners seeking protection and that she would face serious persecution.  It then proceeds to summarise country information concerning the treatment of Falun Gong adherents.  The delegate then said that the appellant’s story lacked credibility for reasons it set out.   However, in a passage relied upon, the Tribunal said:

“You have not provided any documentary evidence in support of your claims and I note that you rely solely on your written statement.  I note that you have referenced a number of websites… as well as newspaper articles… You have not provided any supporting evidence to substantiate your claim of having been a member of Falun Gong in China or that you have recommenced your practice here in Australia, nor of your alleged involvement in pro Falun Gong demonstrations in which you claim to have partaken in, (sic) since arriving in Australia.”

48                  Later, under the heading “Findings and reasons for decision” the delegate wrote:

“The applicant has not provided any supporting evidence to substantiate her personal claims of having been a practitioner and activist of Falun Gong in China.  She has not provided any documentary evidence and relies, in the main on her written statement as well as a number of Internet website references… A letter was received in support of her application by Mr William Wei of Fa Lun Fo Xue Association of Australia Inc in which he states that the applicant is one of only 31 genuine Falun Gong practitioners who are seeking protection in Australia and would ‘definitely be seriously persecuted by Jiang’s regime if they go back to China.’”

49                  While it may be open from the first passage quoted above to conclude that the Tribunal had, by the time it was written, forgotten the letter from Mr Wei, I do not think that this would be a fair conclusion.  The letter in the form it was written could technically be said not to be substantiation of the appellant’s claims.  Nor did it negate the conclusion that the appellant may have not participated in demonstrations in Australia. It may be asked rhetorically how the letter aided the appellant’s case.  There is nothing in the letter which indicated what experiences the appellant had endured in China, or how Mr Wei reached the conclusion he did.  Nothing suggests he knew the appellant in China.  Indeed, it is not clear just who Mr Wei is, let alone why he reached the conclusion which was for the Tribunal to reach. 

50                  The second passage quoted reinforces the view that the Tribunal did consider the letter.  It is obvious that the Tribunal was not of the view that it assisted the appellant’s case.  Whether this was so was a matter for the Tribunal, not for the Court.  I do not think that the appellant has established that the Tribunal did not give consideration to the letter, particularly as it said it did and the letter did not require the Tribunal to come to a conclusion different from that which it reached.

Failure to make findings on past claims

51                  It was submitted for the appellant that the Tribunal had failed to make findings upon a number of claims made by the appellant concerning her activities as a Falun Gong practitioner.  The matters as to which there were said to be no findings were:

1.                  The appellant’s claim that she was a Falun Dafa practitioner who started practicing on 20 August 1998;

2.                  The appellant’s claim that she spoke about and promoted Falun Gong to her work colleagues;

3.                  The appellant’s claim that she was in frequent contact with the Falun Gong activist Pu Jianghong;

4.                  The appellant’s claim that on a night in early 2001 she and a fellow practitioner distributed flyers in a residential compound; and

5.                  The appellant’s claim that she was a Falun Gong practitioner and activist in Australia.

52                  It may be accepted that evidence of what happened in the past will be a guide to a finding of persecution in the future: Minister v Guo (1997) 191 CLR 559 at 575.  It may also be accepted that a failure to make findings can reveal an error amounting to jurisdictional error: Minister v Yusuf (2001) 206 CLR 323 at [75].  Whether this is the case will depend upon a consideration of the reasons of the Tribunal as a whole and the significance of the matters in respect of which it is said no findings have been made.  In a particular case the failure to make findings may involve the Tribunal having failed to take into account a relevant matter and constitute jurisdictional error.  However, I am of the view that the present is not such a case.

53                  The Tribunal was of the view that the appellant’s claims lacked credibility for the reason, inter alia, because she had not been detained and had no difficulty leaving China.  That was the main ground of decision.  That being so, there was no jurisdictional error in the delegate not making specific findings concerning the matters listed above and the Tribunal’s failure to do so did not constitute jurisdictional error.

Assumption appellant content to practise Falun Gong in private

54                  The delegate noted country information to the effect that ordinary practitioners of Falun Gong in China would suffer no persecution so long as they practiced in private.  The Tribunal noted also that the appellant had not made any claims that she was an organiser or leader of the movement.  It pointed out that she had been neither identified or arrested.  It concluded that the appellant was not at serious risk of harm or systematic and discriminatory conduct such as to constitute persecution.

55                  The difficulty for the appellant is that the comment complained of does not seem to form any part of the reasons for decision of the delegate.  Indeed, the comment was not in any way the fulcrum upon which the delegate’s reasons rested.  That requires the result that the delegate did not in this regard make an error of jurisdiction.

56                  For the appellant it was submitted that the Tribunal’s reasoning on this matter proceeded in a way which contravened what the High Court had said in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 180.  That case concerned a claim for persecution by an applicant who was a homosexual male.  The Tribunal had taken the view that the applicant in that case was at no risk so long as he took avoidance action, that is to say, kept private his sexual orientation or practices.  It was held that the Tribunal’s decision was erroneous.  To require a person, as a result of persecution, to practice conduct in private signalled persecution.  Reference may be made to a number of passages in the joint judgment of McHugh and Kirby JJ at [4], [43]-[44] and [50] and in the joint judgment of Gummow and Hayne JJ at [80], [82]-[83].  Counsel for the appellant referred as well to the judgment of the Full Court in NAEB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 79 where, however, it was found that the Tribunal had not ultimately decided the case in a way that offended the principle stated in S395/2002.

57                  As already indicated, the difficulty with the submission in the present case is that, whether or not the comment actually infringed what was said by the High Court (and there is an argument that it did not), it does not seem that the passage had any part to play in the decision ultimately reached by the delegate. The passage complained of had little or no significance to the Tribunal’s reasoning.  In essence, it was a mere passing comment and not part of the Tribunal’s reasons. 

58                  It follows that in this respect too, I am of the view that the delegate did not make a jurisdictional error such that the decision was not a privative clause decision.

Failure to properly assess future

59                  It was submitted for the appellant that the Tribunal had not considered whether the appellant would maintain a level of involvement as a Falun Gong practitioner so that she would face a real fear of persecution in the future, when or if she returned to China.  No doubt the question whether a person is a refugee will involve an assessment of what would be likely to happen in the event that an applicant for a visa were to be returned to the country of nationality.  That is a necessary corollary of the need to find a real chance of persecution in the event of return.

60                  However, with respect to the submission, I do not think that there was any jurisdictional error on the part of the Tribunal in failing to consider whether the appellant would maintain the involvement in Falun Gong she said she had in Australia should she be returned to China.  The delegate founded his conclusions on the basis that he did not accept that the appellant was at risk of persecution for the reasons he set out.  In the circumstances, there was no need for the delegate to make specific findings of fact in respect of this matter and failure to do so did not constitute jurisdictional error.

Risk of identification at protests in Australia

61                  It was, in part, the case of the appellant as considered by the delegate that she had participated in a number of activities in Australia and that her participation put her at risk of persecution if returned to China.  The delegate accepted that the appellant had been involved in these activities but rejected the claim that she risked persecution arising from her involvement.

62                  It was submitted that the delegate had failed to consider the possibility or risk that the appellant had been identified by participation in these activities.  With respect, the submission is misconceived.

63                  The delegate found that the appellant had not been identified as participating in Falun Gong protests in Australia.  Once that finding was made it logically followed that there was no risk of persecution which accrued to her out of her participation.  There could be no need to consider the possibility or risk of identification once there was a finding that there was no identification.  No jurisdictional error has been shown in this respect.

Discretion

64                  Counsel for the respondents submitted that even if the Court were of the view that there had been a jurisdictional error, the Court should refuse relief on discretionary grounds.  This was because de novo relief was available to the appellant in the Tribunal.  The fact that she did not avail herself of that relief within the time limit was not to the point.

65                  Since I am of the view that the delegate did not make a jurisdictional error I have no need to consider the issue of discretion.  However, for completeness I would state my view on the question.  With respect to the submission, I would reject it for the same reasons as a similar submission was rejected in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24.  To say that the fault was the appellant’s is to ignore that, on her story at least, the fault lay with her language skills.  Indeed, it may be thought that assignment of fault in a case like the present is inappropriate where a decision has been made which suffers from jurisdictional error, if indeed that is the case.  The present is not a case such as NAUV v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 124 where the appellant had absconded and so contributed to the failure to appeal in time.  Likewise, the case can be distinguished from Miah, where relief was given.

Conclusion

66                  I am of the view for the reasons I have given that the appeal should be dismissed.  It follows that the appellant must pay the Minister’s costs of the appeal.  I should make one additional comment.  It is obvious in this case that the appellant has had no chance to have an independent review of the delegate’s decision on the merits.  On the merits, the view may well be reached that there was a real chance of persecution in the event that the appellant was returned to China.  There is little doubt, having observed the appellant when she attempted to argue the appeal on her own behalf, that she has a real fear of what would happen to her if she is returned.  I do not think that the distress she showed was other than genuine.  I think that the appellant should, if she has not already done so, apply to the Minister for her case be re-considered by her.  Whether she would be successful is, of course, a matter entirely for the Minister and not for this Court.

67                  Since dictating the above reasons I have had the opportunity to read in draft form the judgment of Madwick J with which Conti J has expressed agreement.  That judgment is expressed and reasoned with elegance and conviction.  Unfortunately, I have the misfortune of not agreeing with it and given the importance of the questions involved, it seems to me important to express the contrary view in case the present case goes further.

68                  The relevant propositions (there are others which are subsidiary upon which I express no particular disagreement) upon which the judgment rests can be expressed as follows:

1.           That consideration of whether the appellant should be permitted to raise a fresh ground of appeal not dealt with at first instance turns upon whether there is a real and actual prejudice, in the present case, to the respondent to the appeal, which cannot be justly and practicably cured: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 per Kiefel, Weinberg and Stone JJ (and see propositions 6 and 7 at [165] of this judgment).

2.           It is relevant also to determine whether the new legal arguments have a reasonable prospect of success: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 per Heerey, Moore and Goldberg JJ at [22]-[24] (and see proposition 1 at [165] of this judgment).

3.           It was not, nor could it be, obvious to anyone that the delegate would take the absence of response from the appellant into account in the way he did: (see, at [199] of this judgment).

4.           Section 57 of the Act was not complied with: (see, at [203] of this judgment).

5.           The delegate did not give the significance and weight to the letter of Mr Wei that it deserved: (see, at [211] of this judgment).

6.           The delegate, notwithstanding his findings that there had been no identification of the appellant in respect of the sur place claim should have considered nevertheless that there was a real and substantial risk that there had and then have gone on to estimate the future risk based upon a conclusion that such a risk of identification did exist: (see, at [220] of this judgment).

69                  I propose to comment upon each of these matters.

70                  As to the second of these propositions, it seems to me, so far as it is restricted to the matter of procedural fairness, that the question whether there is a reasonable prospect of success depends upon the appellant being able to show that the first respondent both should have gone beyond sending a registered letter to the appellant which was returned as undelivered, to attempting to contact the appellant (whose English is, it would seem, almost non-existent) by telephone, but had not done so.  If these matters were both made out then the prospect of success would be high indeed.  I accept without reservation that the stakes for the appellant may well be very high, at least if her credibility, not accepted by the delegate of the Minister, is regarded as intact.  More important for present purposes is the first of these propositions.

71                  Madgwick J has proceeded upon the basis that the law requires there being a showing of actual prejudice without which leave will be granted to permit an appellant to raise a fresh issue dependent upon a factual matter not raised at first instance.  With respect, the authorities upon which the judgment is based do not support this.  Nor can it be said that the course of authorities to date does.

72                  I have had researched all cases in Australian superior courts in the last twenty years where the question has arisen whether a fresh point should be allowed to be raised on appeal.  The cases divided themselves into five types.  The test almost invariably applied in these cases is the possibility of prejudice, not whether there can be shown actual prejudice.

73                  One class of case, irrelevant here, is the class of case where the fresh issue raises a pure question of law.  That is the not the present case so far as concerns the natural justice issue.  These cases are therefore not helpful to the present issue.   Examples of such cases are: Dutton v O’Shane [2003] FCAFC 195; Howitt-Steven v UniSuper Ltd [2002] FCAFC 272.

74                  A second class of case is one where the so-called fresh issue is one in which all the facts have already been established beyond controversy or the case can be characterised as involving, in effect, a ground already argued, albeit now expressed differently: Abeysinghe v Minister for Immigration and Multicultural Affairs [2002] FCAFC 108; Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32; VAAC v Minister for Immigration and Multucultural and Indigenous Affairs [2003] FCAFC 74.

75                  A third class of case has been said to be one where the nature of the evidence is such that the evidence is readily accessible, for example, the evidence is the transcript of proceedings before the Tribunal and as such, did not produce a conflict with the principles set out in the High Court in Water Board v Moustakas (1988) 180 CLR 491 that:

“…a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below.  Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied…” (emphasis added)

76                  A fourth class of case is one where the question of fresh evidence has not been in contest and may, indeed, not have been raised and in the result the question attracts no attention: WAEI v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 334; WACH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 334; Kuswardana, Stevan v Minister for Immigration and Ethnic Affairs [1981] FCA 64.

77                  The fifth class, of which the present is an example, is one where evidence may possibly have been given at the trial, had the point been taken there, but was not, so that the facts have not been established beyond controversy and/or there is the possibility that the respondent might have argued its case differently in the court below upon the basis of evidence not there adduced.  In such cases the courts have found irremediable prejudice and refused leave: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129; Lie Pei Ye v Crown Limited [2004] FCAFC 8.

78                  “Irremediably prejudice” is found in at least two circumstances.  The first is in cases in which evidence that might have been available to the respondent in the court below is no longer available.  The second is the situation where the respondent may have conducted his or her case differently in the court below had the new ground been raised at that stage.

79                  In considering whether these circumstances exist, the expressions used by the Court to describe the test are “could possibly” have been available; “might have” conducted the case differently; evidence “might have been advanced to address issues involved in the new ground”; or the respondent “may have been able to call evidence”.  The expression has not been “would have”, or similar variations: Multicon Engineering Pty Ltd v Federal Airports Corporation (2000) 47 NSWLR 631, at 645; Applicant A376 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 222; Wardy v Hardy [2002] NSWCA 215.  Where the case arose that evidence could have been presented in the court below, the Court on the appeal has accepted the assertions of counsel that they would have conducted the case differently without requests for particulars on how: Lie Pei Ye v Crown Limited [2004] FCAFC 8; Sullivan v Dan (1998) NSW ConvR 55-854.

80                  In Nominal Insurer v Kamarakis (1993) 113 FLR 116 at 127, the respondent opposed the addition of a new ground of appeal on the basis that had it been raised at first instance, “he may have led evidence” that may have been relevant in considering the ground.  Kearney J said:

“To my mind, the fact that counsel acting responsibly has said that the raising of the ground at the primary hearing may have affected the evidence he would have led is enough to dispose of the question.  Leave to add the ground should be refused.”

81                  In Mount Isa Mines Ltd v Peachey (unreported, McMurdo P, McPherson JA and Muir J, 1 December 1998), the Court of Appeal in Queensland accepted the submissions of the respondents in that case that, had the new point sought to be raised by the appellant on the appeal been raised at the trial, the respondent “at the very least would have investigated what evidence needed to be adduced in order to resist the appellant’s argument”.

82                  In Cummings v Lewis (1993) 41 FCR 559 at 567, Sheppard and Neaves JJ examined a similar issue and concluded:

“If the case now made had been the one made at trial, [counsel] may have cross-examined quite differently, other witnesses may have been called or witnesses who were called may have been asked questions about this aspect of the matter. Naturally counsel could not identify precisely the extent of the prejudice which each claimed was involved. This is understandable. It is very difficult for counsel, having conducted a case on one basis, to say precisely how the case would have been conducted if it had been put in a different way. Courts do not accept as of course statements made by counsel as to possible prejudice to their clients in circumstances such as this. Courts, however, recognise that counsel are placed in a substantial difficulty when asked to specify a claim of prejudice with any precision. If prejudice is claimed, a court is likely to give effect to that claim unless the circumstances clearly point to there being in fact no prejudice”.

83                  In one case, far from granting leave because the respondent could not say that there was evidence that could be put against the ground, the Court refused leave, saying that, without evidence, the new ground could not fairly be decided at the appeal level: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; Coshott v Principal Strategic Options Pty Ltd [2004] FCAFC 50.

84                  In particular, there is nothing in the cases to suggest that there is a principle that in an exceptional case where it is “expedient and in the interests of justice” to allow leave to put before the Court new grounds which depend upon evidence which may possibly no longer be available to a respondent, leave will be granted (see the reasons for judgment of Madgwick J at [174]).

85                  Ultimately, the judgment of Madgwick J on this point turns upon dicta of Allsop J in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424.  The passage relied upon by Madgwick J is part of a somewhat longer discussion, not all of which is relevant to the present issue.  However, it is useful to set out the whole of the relevant paragraph to define what it was that Allsop J, whose judgment was agreed upon by Drummond and Mansfield J, said at [38]:

“However, to say as much does not exhaust the description of the considerations for an appellate court when faced with a party raising a fresh point.  First, the finality of litigation and the importance of parties being bound to the cases they make at trial should never be overlooked:  Gleeson CJ and Hayne J in Crampton, supra at [15] and [157], respectively and University of Wollongong v Metwally, supra; see too JB Chandler Investment Company Limited (in voluntary liquidation) v Commissioner of Taxation (1993) 47 FCR 588 per Gummow J at 593G.  Secondly, the difficulty of the party against whom the new point is raised reaching back in time to assess, necessarily hypothetically, how the conduct of the trial would, or may, have been different should not be underestimated.  Such judgments or assessments can require re-agitation or reconsideration of decisions taken before and at trial (which may be privileged) and which can be very difficult to assess and articulate after the event.  The entitlement of a party to the benefit of the opportunity of informed and reasonably contemporaneous assessment of relevant evidence, or inquiry, should be respected.  Thirdly, the potential unfairness on counsel conducting an appeal who will be expected to assist the court in respect of the prejudice, or lack of it, to his or her client in the face of such matters being raised should not lightly be brushed aside.  Even when counsel cannot positively say that something in particular would have been done differently, that does not mean that the court will be satisfied of a lack of prejudice.  The possibility of evidence or the possibility that the hearing would have taken a different course, if not fanciful, may well suffice to deny raising of the new point.  These considerations should not be seen as not requiring counsel frankly and candidly to say that the trial would not have been conducted differently if he or she is of that view.  Fourthly, and in conclusion, before any new point be allowed, the court should be able to be satisfied that the raising of it could work no injustice on the other party and is otherwise in the interests of justice.  The extent of the consideration of “the interests of justice” was discussed by Branson J and Katz J in H v Minister for Immigration and Multicultural Affairs, supra, at [8].  For my part, I would reserve comment upon the matters there discussed in this context concerning the relevance of the growing pressure on the time of courts.  Considerations of the kind there discussed by their Honours have not formed part of my reasons, expressed later, for refusing to entertain certain issues on appeal.  Nothing I have said is intended to be in any way contrary to, or inconsistent with, what was said by R D Nicholson J in Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32 at 47 or with the cases there discussed, that being an authority specifically relied on by the appellants in argument.” (emphasis added)

86                  It seems to me that his Honour, while encouraging counsel to be frank was not proposing any different test in the paragraph.  Indeed, his Honour wrote of the “possibility” of evidence and certainly did not seem to suggest that there was an obligation upon counsel to attempt to obtain evidence not adduced at the trial so as to show actual prejudice. 

87                  The only case my research has revealed which might support the view of Madgwick J on this point is the decision of the Queensland Court of Appeal in Ellington v Heinrich Constructions Pty Ltd [2004] QCA 475 in which, in considering whether there was any possibility that the respondent in that case might have led evidence to overcome a point raised for the first time by the appellant on appeal said:

“Had there been any evidence to support such a claim [overcoming the point] then the appellant could not be allowed to raise that point on the appeal.  No such evidence has been put forward.  There is no indication that it exists.  The solicitor’s affidavit must be taken as the most that can be said on the point on behalf of the respondent.  It is insufficient to over come the [point] … Accordingly it is safe, and indeed appropriate, to infer that the respondent was not able to adduce evidence to address the omission in the schedule.”

88                  What is there said must be seen against the issue in question in the case.  If it is to be taken to travel outside those facts then I think what is said conflicts not only with the decision of the High Court of Australia to which reference has been made and to the cases on judicial decision-making in the past. 

89                  The High Court has elucidated as the relevant threshold test for granting leave to raise a fresh question on appeal, whether there is a possibility that evidence might have been adduced below to meet the case which the appellant wishes for the first time to adduce on appeal.  There is nothing to suggest that their Honours accepted that in a case where the actual facts might be capable of being ascertained by the appellant, the Court should allow the point to be raised unless there is actual prejudice.  It seems to me that the procedure suggested by Madgwick J at [193] is contrary to the weight of authority in the High Court.

90                  As to the third proposition, it seems to me, with respect, that the judgment enters the forbidden zone of merits review at this stage.  Quite frankly if it were for me to express an opinion, and it is not, I would not at all find it surprising that the return of a registered letter indicated fairly conclusively that the appellant had moved her address and failed to notify the Minister as required.  The idea that a person might ignore messages for whatever reason would hardly seem the likely implication to draw.

91                  As to the fourth of these propositions, it is possible that s 57 was not relevant.  The letter in question of 16 April 2002 invited the appellant to comment in writing on certain extracts of country information.  The parties argued the case upon the basis that the letter was an invitation given under s 56(2) and not s 57.  If this is correct then s 57 is obviously irrelevant so far as that argument is concerned.

92                  On the basis that s 57 is in fact relevant there is, it may be remarked, no ground of appeal that argues it was not complied with.  In my view it is not for this Court to decide cases on grounds of judicial review that are not even raised on behalf of an appellant.  However, to pursue the matter further, the section requires, relevantly, that the Minister give particulars of the relevant information to which the section refers and ensure, as far as is reasonably practicable that the applicant understand the relevance of that same information and invite the applicant to comment upon it.  The section permits the Minister, subject to subsection (3) to give the relevant particulars in a way the Minister regards as appropriate.  Here, that was by registered post.  Clearly that is a mode permitted to the Minister within s 494A.  It follows, in my view, that the Minister may chose one or other of the methods he or she considered appropriate.  Having regard to s 494B of the Act, any form of prepaid post would suffice.  In this event the provisions of s 494C operate to take the document to have been received within seven working days.  It is true therefore that s 424A(2) requires the Tribunal (the section has no relevance to the delegate) to give the invitation in a specified way and there is no direct equivalent in s 57.  But that is to ignore ss 494A-C, which authorise the giving of documents in a particular way and, relevantly, deems receipt to have occurred in seven days.  If the invitation were under s 57 then I fail to understand why the section was not complied with.

93                  I have dealt in my reasons with the letter of Mr Wei (the fifth point) and there is little I need to add.  The letter was considered.  It was referred to.  Whether the decision maker accepted or did not accept the letter was a matter for him and not for this Court in proceedings for judicial review.

94                  As to the final point I have difficulty with a proposition that after finding something did not happen (ie detection and identification at Falun Gong demonstrations) it is incumbent upon a decision-maker to go on and look at what might be the case if it did.  Again I do not think that such a proposition represents the law in this Court, or for that matter, in the High Court.

95                  It is with regret that I find myself unable to agree with the judgment of Madgwick J.  I would dismiss the appeal with costs.

I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:              24 August 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 627 of 2003

 

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:	NAJT APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT   REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

 

JUDGES:	HILL, MADGWICK & CONTI JJ
DATE:	24 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J:

Introduction

96                  This is an appeal from a single Judge of this Court (NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 487), dismissing the appellant’s application for judicial review, claimed as follows:

‘1.        A review of the decision to be granted a protection visa be made from the decision of the Department of Immigration and Multicultural and Indigenous Affairs’.

97                  The application followed a decision of the Refugee Review Tribunal (‘the Tribunal’) which determined that it did not have jurisdiction to review a decision of a delegate of the respondent Minister (hereinafter, ‘respondent’ ─ the Tribunal was only joined as a respondent after proceedings had concluded, having regard to the decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162; [2005] HCA 24 (‘SAAP’))  refusing to grant the appellant a protection visa, because the appellant’s application for review to the Tribunal had been made outside the statutorily prescribed time period.  The learned primary judge, with no relevant help from the appellant, unrepresented at first instance, proceeded nevertheless, as is a common practice in such cases, to do his best to review the decision (that is, the delegate’s decision) complained of, even though, as his Honour put it, ‘the applicant has not herself identified any potentially reviewable error’ (at [31]).  The primary judge found no such error.

background and procedural history

98                  The appellant is a citizen of the People’s Republic of China.  She arrived in Australia on 8 February 2002 and lodged an application for a protection visa on 22 March 2002.  She claimed to have a well-founded fear of persecution for reasons of religion and/or political opinion by reason of her involvement as a Falun Gong practitioner.  She claimed that she had been forced to flee China, leaving her family behind, ‘after being subjected to inhuman treatment and cruel persecution’.  She detailed what she meant by that expression.

99                  On 16 April 2002, the respondent’s delegate wrote to the appellant at the Sydney address she had given as her place of residence.  The letter attached some ‘relevant extracts of country information’ and certain comments made by the delegate ‘based on this information and/or the information you have supplied in your application’.  The letter invited the appellant to comment and reply in writing.  The appellant was informed, in effect, that she had 38 days from 16 April 2002 (that is, until 24 May 2002) to respond.  The letter also informed her:

‘Please note that from 22 April, 2002 we will be located at Level 3, 26 Lee Street, Sydney (situated near Railway Square) telephone 90324666 and our new postal address will be;

Onshore Protection

Department of Immigration and Multicultural Affairs and Indigenous Affairs

GPO Box 9984

SYDNEY   NSW   2001

Any correspondence sent to the Department which would arrive after 22 April, 2002 should be sent to our new postal address.

…

If you do not respond to this request, the Department may decide your Protection visa application on the basis of the available information.’

100               The appellant, on the material before his Honour, did not receive that letter.

101               As the Tribunal recorded:

‘The [appellant] explained in her submission that she lodged her application on 22 March 2002.  Around 5 April 2002 she received a letter from the Department confirming receipt of the application.  On 25 April 2002 the [appellant] visited the Department to check the status of her application and was told by counter staff that she would be notified if there were any progress.  The applicant claimed that she attended the Department on 9 May 2002 to reapply for her bridging visa.  She again inquired as to the progress of her protection visa application and was told that she had to wait.  She was advised that she could provide supplementary material, which she did on 22 May 2002.’

102               On 9 May 2002, the delegate’s letter of 16 April was returned to his office with a notation on the envelope:  ‘unclaimed’.

103               The ‘supplementary material’ the appellant provided was a letter dated 14 May 2002 from Mr William Wei who described himself as the President of the Fa Lun Fo Xue Association of Australia Inc., which he described as ‘Representing Falun Dafa in Australia’.  As will appear, that letter was, it seems to me, strongly supportive of the appellant’s claim to be a refugee on account of her practice of Falun Gong.

104               On 28 May 2002, the delegate wrote to the appellant enclosing the ‘decision record’ of his decision to refuse her claim for a protection visa.

105               Thereafter, as the Tribunal put it, from June to November 2002 she did not contact the Department, nor did she receive any correspondence from the Department.  On 11 December 2002, the appellant claimed that she went to the Department to check the progress of her application and was told her application had been refused on 28 May 2002.  She was informed that the copy of the decision sent to her had been returned, marked unclaimed.

106               The appellant claims that she went to her local post office to inquire about the letter -and was told that the post office had notified her twice of the registered mail, however, it was never collected.  The appellant says that she is still not sure why she did not receive the registered mail and suggests the most probable explanation is that the postman came when no one was home and left a parcel collection note, which she possibly mistook to be advertising material and threw away.  The appellant insists that she did not intend to delay her application and apologised for the inconvenience.

107               The Tribunal accepted that the appellant may have overlooked the parcel collection note which was left by the postman on the two attempts made to deliver the registered mail from the Department.

108               On 12 December 2002, the appellant applied to the Tribunal for a review of that decision.  The Tribunal held that it did not have jurisdiction to review the decision refusing to grant the appellant a protection visa as the application for review was filed outside the 28 day time limit provided for by s 412(1)(b) of the Migration Act 1958 (Cth) (‘the Act’) and Regulation 4.31 of the Migration Regulations 1994 (Cth).

109               On 20 February 2003, the appellant sought judicial review in this Court in the terms set out in [1] above.

110               In his judgment, the primary Judge confirmed that the Tribunal’s decision was correct.  His Honour also took the view (with which I respectfully agree) that the Court has power to engage in judicial review of the delegate’s decision, and proceeded, subject to discretionary grounds, to investigate the question of jurisdictional error on the part of the delegate.  Unaided by any useful submissions from the unrepresented appellant, his Honour found no nullifying error, no denial of procedural fairness, and no failure on the part of the delegate to discharge a duty imposed by the Act or to observe an inviolable limitation or restraint under the Act.  His Honour evidently felt no need to examine possible discretionary reasons to refuse relief. 

111               As Hill J has indicated, we have had the benefit of submissions by counsel for the appellant after we invoked the Order 80 procedure.  Counsel’s generosity should be acknowledged.

DELEGATE’S DECISION AND THE JUDGMENT APPEALED FROM

112               Given the submissions made by the parties, it is necessary to outline the decisions of the delegate and the primary Judge in some detail.

113               The delegate summarised the claims made by the appellant.  She commenced practising Falun Dafa (Falun Gong) on 20 August 1998, was ‘actively involved in the distribution of Falun Gong material and signposting’, and ‘on a number of occasions was almost detained.’  Further, she ‘was threatened with dismissal by her work unit supervisors if she did not desist her association with and practice of Falun Gong’;  ‘3 people were appointed to monitor her activities at work’;  ‘her telephone was bugged’; and people monitored which internet websites she visited.  Despite this conduct, the appellant claimed that, had it not been for the intervention of her employer in her interests on one occasion, the Public Security Bureau would have arrested her.  In the delegate’s words, ‘[a]s a result of the arrest, imprisonment and persecution of many of her Falun Gong associates’, the appellant claimed that ‘she became concerned for her personal safety and decided to flee to Australia’.  The delegate summarised the appellant’s further claims that since arriving in Australia ‘she has partaken [sic] in various demonstrations protesting the Chinese Government’s treatment of Falun Gong practitioners’, and that ‘she had been identified and photographed by Chinese “spies” in Australia and would face persecution were she required to return.’

114               The delegate rehearsed his having written to the appellant on 16 April 2002 enclosing country information for her comment, and recorded that the letter was returned unclaimed on 9 May 2002. 

115               The delegate then said:

‘On 22 May, 2002 a letter was received from Mr William Wei of the Fa Lun Fo Xue Association of Australia Inc. claiming that the [appellant] is one of 31 genuine Falun Gong practitioners seeking protection in Australia and that she would face serious persecution if she were required to return to China.’ 

116               I interpolate the full text of Mr Wei’s letter on account of the importance I think it had:

‘I’m hereby writing to you to express my deep concern about the application for humanitarian protection of one of our fellow Falun Gong practitioners, [the appellant (by name)].

According to the information we have, there are currently about 31 Falun Gong practitioners in Australia who are applying for refugee status.  This is the number of genuine practitioners that we have confirmed after careful examination, and they will definitely be seriously persecuted by Jiang’s regime if they go back to China.

[The appellant (by name)] is the one on the name list of 31 Falun Gong practitioners, which I recently sent to the Hon. Philip Ruddock MP., Minister of DIMA.

We sincerely wish DIMA could give sufficient consideration to her application in the process of your assessment.’

117               The delegate at no point provided any reason for depreciating Mr Wei’s evidence.

118               The delegate then repeated the information that had been included in his letter of 16 April 2002.

119               Under the rubric ‘Relevant Country Information’, the delegate cited passages from numerous publications, although seemingly in no particular order.  One of the more recent reports cited was a DFAT (Australia’s Department of Foreign Affairs and Trade) Country Information Report dated 17 July 2000 (Document No. CX43498) titled ‘Update on Falun Gong (Falun Dafa)’:

‘Those who have played a leadership or organisational role in Falungong activities are more likely to attract the attention of the authorities.  We expect that “ordinary followers” who come to the attention of the authorities (through their participation in public demonstrations or by being named by others), will be lectured on the error of their ways and the social damage caused by Falungong, and urged to repent their actions and renounce their beliefs.  If they comply, we expect they will be released quickly.  Those who refuse to cooperate with the authorities are likely to be subject to longer periods of detention, usually non-judicial (“re-education through labour”).  We assess that ordinary adherents of Falungong who practise privately are unlikely to be the subject of particular attention by the authorities.  Chinese authorities are likely to take a close interest in adherents who are members of the Communist Party, government employees or workers in state owned enterprises, and require them to renounce Falungong or be subject to further action.’  (Emphasis added)

120               The delegate also referred to two later DFAT Country Information Reports.  The first, titled ‘Falun Gong related demonstrations’ and dated 20 March 2001 (Country Information Service Document No. CX51051), states:

‘The Chinese government’s anti-Falungong propaganda campaign has intensified since the self-immolation protest by Falungong adherents in Tiananmen Square on 23 January this year.  Falungong activists continue to face detention and the possibility of “re-education” or prison terms.  It is likely a known activist would be subjected to monitoring on return.  The principal determinant of treatment of Falungong activists by the Chinese authorities is their compliance with Chinese law, which bans Falungong-related activities.’

 

121               The second DFAT report (No. CX57264), dated 10 September 2001, said:

‘Country information indicates that the Chinese Government’s campaign against Falun Gong has targeted the leaders and organisers and those with some degree of influence or recognition.  Ordinary Falun Gong practitioners would expect more lenient penalties, depending on the adherent’s willingness to co-operate with the authorities.  Generally cooperation may lead to quick release.  Refusal to do so would most likely lead to a period of detention, usually non-judicial.Ordinary adherents of Falun Gongwho practice [sic] privately are unlikely to be the subject of particular attention by the authorities.’

122               Under the heading ‘Issues and comments concerning your claims and the country information’, the delegate stated that according to the above country information, private practice of Falun Gong is tolerated in China.  Following a repetition of the appellant’s claims (summarised above at [18]), the delegate said:

‘You have not provided any documentary evidence in support of your claims and I note that you rely solely on your written statement.  I note that you have referenced a number of websites relating to the ill treatment of Falun Gong practitioners as well as newspaper articles in respect to the recent visit by Chinese Foreign Minister Tang Jiaxuan.  You have not provided any supporting evidence to substantiate your claim of having been a member of Falun Gong in China or that you have re-commenced your practice here in Australia, nor of your alleged involvement in pro Falun Gong demonstrations in which you claim to have partaken …, since arriving in Australia’.

123               The delegate also said: ‘I note that you make no claim of being an organiser or leader within the movement rather a practitioner and activist’.  The delegate commented that the appellant appeared to have had no trouble obtaining a passport or departing China, did not claim that her husband or other family members had been mistreated since her departure, and did not claim to have been detained, imprisoned or physically harmed or mistreated.  The delegate referred to other alleged defects in the claims made by the appellant and concluded:

‘Your claims of fear of persecution by the Chinese authorities for Falun Gong related activities are not supported by the evidence which you have presented to date.’

124               The delegate then entered on a discussion headed ‘Findings and reasons for decision’.  He expressed an intention to assess the appellant’s application on both the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, [1954] Australian Treaty Series No. 5 (‘Convention’) grounds of religion and political opinion, and said:

‘According to the country information which I sent to the [appellant], it is moreso the active proponents or leaders of the Falun Gong movement as opposed to “ordinary” practitioners, who would be more likely to come to the notice of authorities.  The above information also suggests that “ordinary” practitioners of Falun Gong can in fact continue to practice their beliefs in private without fear of persecution.  The [appellant] does not make any claims of being an organiser or leader within the movements rather a practitioner and activist.’

 

125               The delegate again repeated some of his summary of the appellant’s claims and his observations from his 16 April letter.  The delegate then said that he did not believe that ‘the mistreatment suffered by the [appellant]’ amounted to ‘serious harm or systematic and discriminatory conduct of such a nature as to constitute [C]onvention based persecution.’  He said:

‘I also do not believe that the [appellant’s] claims are those of a person either at serious risk of persecution for her Falun Gong related activities or is a person who is currently being sought by the Chinese authorities.’

126               As reasons for his disbelief that the appellant’s claims ‘are those of a person either at serious risk of  persecution … or [that the appellant] is a person who is currently being sought by the Chinese authorities’, the delegate referred to, or wrote (as the case may be), the following:–

·                                Her single place of residence from 1991 until she came to Australia in 2002.

·                                Her continuous employment from 1990 to 2002.

·                                Her claimed level of Falun Gong activity and being under surveillance although ‘she was not identified and detained’.

·                                Her protection by her employer although she was monitored at work.

·                                Her simplistic explanation of how she was able to avoid detection although frequently spreading the Falun Gong message;  her explanation lacked credibility, the delegate said.

·                                ‘I am also not satisfied that she has been identified in Australia as a result of her protest activities nor that she would be at risk of persecution in China for that reason’ (presumably general credibility concerns fuelled this remark – there was no other explanation for it).

·                                The absence of a claim of difficulty or subterfuge in obtaining a Chinese passport and  departing China.

·                    ‘I note that my letter to the [appellant] was returned to this office unclaimed on 9 May, 2002 having been sent to the last postal address supplied by her on 22 March this year.  I believe that the [appellant’s] failure to make adequate arrangements in maintaining contact with the Department reflects poorly on the genuineness and well foundedness of her claims of fear of persecution.’

127               Immediately after the passage last quoted, the delegate continued:

‘Accordingly, I am not satisfied the [appellant] has a well founded fear of persecution on either of the [C]onvention grounds of religion or political opinion, or cumulatively as a combination of these two grounds.  I do not believe on the evidence presented that there is any real chance of the [appellant] suffering any [C]onvention based persecution, should she be required to return to China.’

decision of the primary judge

128               The primary Judge considered whether either the decision of the Tribunal or the delegate warranted relief under s 39 of the Judiciary Act 1903 (Cth).  In relation to the Tribunal’s decision, his Honour held that the Tribunal’s decision ‘that it did not have jurisdiction to entertain the application [for review was] plainly correct’ (at [19]).

129               In relation to the delegate’s decision, the primary Judge found that it was ‘open to the delegate to find that the events complained of did not amount to serious harm or systematic and discriminatory conduct within s 91R of the Act’, and that it was also ‘open to the delegate to find that, whatever her subjective fear of arrest, she did not have a well-founded fear of treatment sufficiently serious to constitute persecution’ (at [32]).  His Honour said that the ‘factual assessment undertaken by the delegate was entirely unexceptionable’ (at [32]).

130               Considering the country information before the delegate, his Honour said it indicated ‘that only leaders and organisers of public demonstrations relating to Falun Gong came to the attention of the authorities, were dealt with, and in certain cases jailed’ (at [33]).  His Honour found it was ‘open to the delegate to conclude on the basis of country information that the [appellant], who claimed only to be a practitioner and activist within Falun Gong, would not be likely to come to the attention of the authorities’ (at [33]). 

131               His Honour then said (at [34]):

Further, the delegate found that apart from the letter from the Association, the [appellant’s] claims were not supported by any documentary evidence, that she had no difficulty in obtaining a passport and leaving China, and that she did not claim that her family had been mistreated since her departure.  It was open to the delegate to reach adverse findings as to the [appellant’s] credibility, this being a function of the primary decision-maker, for which detailed reasons need not be given. In fact, reasons were given as to why the [appellant] was not believed on these matters.  No error is apparent in these findings of the delegate.’

132               His Honour concluded (at [35]): 

‘If any error of law could be established in the reasons of the delegate it could not be shown to be a nullifying error.  There is no basis for any denial of procedural fairness.  Nor is there any basis for establishing that the delegate failed to discharge a duty imposed by the Act or to observe an inviolable limitation or restraint in the Act.’

Issues agitated on appeal

133               Following the Order 80 referral, the appellant’s Counsel sought leave to file an amended notice of appeal seeking the issue of constitutional writs on the following grounds:

‘1.        The respondent’s delegate, in his decision dated 28 May 2002, made an adverse finding against the appellant on the basis of her failure to respond to a letter from the delegate to the appellant dated 16 April 2002.  In the circumstances of the case, the delegate should have tried to phone the appellant before making the adverse finding.  In not doing so, the delegate failed to take reasonable steps to ensure the appellant received the letter, giving rise to a denial of procedural fairness and jurisdictional error.

2.         There was a letter from William Wei, President of the Fa Lun Xue Association of Australia Inc dated 14 May 2002 before the delegate.  The letter contained supporting and/or corroborating evidence in relation to aspects of the appellant’s claims.  The delegate, in his decision dated 28 May 2002, failed to give proper regard to the letter, giving rise to a failure to comply with s 54(1) of the [Act] and/or a denial of procedural fairness, and jurisdictional error.

3.         The delegate, in his decision dated 28 May 2002, failed to make findings in relation to a number of the appellant’s claims concerning her activities as a Falun Gong practitioner and activist.  In the circumstances, the delegate failed to carry out the exercise required by MIEA v Guo (1997) 191 CLR 559 at 575, giving rise to jurisdictional error.

4.      The delegate’s decision contravened the principle stated by the High Court in S395/2002 v MIMA (2003) 78 ALJR 180, giving rise to jurisdictional error.

5.      The appellant set out details of her involvement as a Falun Gong practitioner and activist in Australia.  The delegate appears to have accepted the claims.  However, the delegate did not consider whether the appellant might maintain the same level of involvement in Falun Gong on her return to China and, if so, whether she faced a real chance of persecution.  On this basis, the delegate fell into jurisdictional error.

6.      The appellant claimed that she was involved in a number of public protests in Australia.  The delegate accepted that the appellant was involved in the protest activities, but rejected the appellant’s claim of risk of persecution arising from these events.  The delegate misapplied the real chance test in making his finding, giving rise to jurisdictional error.’

134               In the course of argument the appellant added a submission to the effect that the delegate had denied the appellant natural justice by (a) inferring from the return of his letter that the appellant had failed to make adequate arrangements to maintain contact with the Department, and (b) concluding that this reflected poorly on her genuineness and the ‘well foundedness’ of her claims to fear persecution, without giving her the opportunity to comment on whether such inference and conclusion could or should be made. 

135               The respondent was given some time to respond to the appellant’s submissions.

THE STATUTORY FRAMEWORK

136               The amendments made by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) were not in effect at times relevant to this case.  The delegate was obliged to accord the applicant procedural fairness as the Court might conceive it:  Re Minister for Immigration and Multicultural Affairs;  Ex parte Miah (2001) 206 CLR 57 (‘Miah’).

137               Subdivision AB (ss 52 – 64) of the Act was and is entitled ‘Code of procedure for dealing fairly, efficiently and quickly with visa applications’.

138               Relevantly for present purposes, s 52 obliges a visa applicant to communicate with the Minister in a prescribed way;  a purported communication in another way is ‘taken not to have been received’ unless the Minister in fact receives it.

139               Sections 54 and 55 oblige the Minister to ‘have regard to’ all of the information in a visa application, or which is additional relevant information given to the Minister, before the decision is made on the application.  Section 55(1) provides:

‘(1)      Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.’

 

140               Section 56 provided:

‘(1)      In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.

(2)       Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.’

141               It was accepted before us that ss 494A – 494C applied to the delegate’s letter of 16 April 2002, the latter being seen as a written, that is documentary, invitation given within the meaning of s 56(2).  Sections 494A and 494B authorise the giving of certain documents to a person by, among other methods, pre-paid post to the last residential address provided by the intended recipient for the purposes of receiving documents (see s 494B(4)).  Section 494C(4) deems receipt, in such a case, to have occurred seven days (in the case of an Australian address) after the date of the document.

142               Section 62 provides that if a visa applicant is invited to give additional information as to comment and does not do so within the time limited for so doing, the Minister may make a decision to grant or refuse a visa without taking any further action to obtain the applicant’s views on the information.

143               In Subdivision AC – ‘Grant of visas’ (ss 65 - 69), s 65 provides that, after considering a valid visa application, the Minister is to grant the visa if satisfied that the prescribed criteria have been satisfied or, if not so satisfied, is to refuse to grant the visa.

144               Section 66 obliges the Minister to notify, in the prescribed way, the applicant of the decision to grant or refuse a visa.  Pursuant to s 66(2)(c), the notification must, if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa, ‘give written reasons … why the criterion was not satisfied’.

145               Section 69(1) provides that the Minister’s non-compliance with Subdivision AB –

‘… does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.’

146               Section 69(2) provides:

‘(2)      If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it.’

147               Subdivision AB, s 69 and the Act’s system of review by the Refugee Review Tribunal (in a case such as the present) did not, however, protect against judicial review a decision that was not in accordance with the requirements of that Subdivision or which was otherwise jurisdictionally unlawful:  Miah;  the discussion by the majority of s 69 at [101] – [104], [144] and [203] – [209] is especially in point.  Gaudron J, with whom McHugh J agreed on this matter, said (at [101] – [104]):

‘It is convenient to deal first with s 69(2).  So far as concerns subdiv AB, s 69(2) is not merely concerned with the mandatory requirements found in ss 54(1), 57(2) and 58 of the Act.  It is concerned with the subdivision as a whole.  It is therefore concerned with the proper exercise of the powers to invite submissions and further information to ensure procedural fairness.  In the present case, there was either a decision not to exercise those powers or a failure to consider their exercise.  In either event, there was a failure to comply with the requirements of subdiv AB.

So far as concerns s 69(1) of the Act, there is nothing in that provision to indicate an intention to preclude this Court from exercising its jurisdiction under s 75(v) of the Constitution.  It is now clear that breach of the rules of natural justice will ground relief under s 75(v).  That being so, if legislation does not exclude those rules, it cannot validly exclude the jurisdiction to grant relief for their breach that is conferred on this Court by s 75(v).  That is not to say that the Parliament may not legislate in such a way that relief will be refused if an erroneous decision is made, provided that the decision does not exceed the authority conferred by the legislation in question and it constitutes a bona fide attempt to exercise the powers in issue and relates to the subject matter of the legislation.  However, that is not what s 69(1) of the Act purports to do.

Section 69(1) of the Act simply purports to give validity to a decision notwithstanding non-compliance with, amongst other provisions, those of subdiv AB.  The concluding words of the sub-section do not give it any wider operation.  To say that non-compliance “only means that the decision might have been the wrong one and might be set aside if reviewed” is not to limit the

avenues of review.  Certainly, those words are apt to include judicial review pursuant to s 75(v) of the Constitution.

The purpose of s 69 of the Act is to ensure that an applicant’s rights are to be ascertained by reference to the Minister’s decision unless and until set aside.  It says nothing as to an applicant’s statutory or constitutional rights to have a decision reviewed.  Still less does it purport to excuse non-compliance with the Act or the rules of natural justice.’  (Footnotes omitted.)

 

148               Section 57 provides:

‘(1)      In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

(a)   would be the reason, or a part of the reason, for refusing to grant a visa; and

(b)    is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and

(c)    was not given by the applicant for the purpose of the application.

(2)       Subject to subsection (3), the Minister must:

(a)   give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and

(b)   ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

(c)    invite the applicant to comment on it.’

149               Subs (3) provides, in effect, that s 57 did not apply to certain kinds of presently immaterial visas.

150               Section 57 may be compared, and in some respects, contrasted, with s 424A, recently considered by the High Court in SAAP.

151               Section 424A provides:

‘(1)      Subject to subsection (3), the Tribunal must:

(a)       give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)       ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)        invite the applicant to comment on it.

(2)       The information and invitation must be given to the applicant:

(a)       except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)        if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(3)       This section does not apply to information:

(a)        that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)        that the applicant gave for the purpose of the application; or

(c)        that is non-disclosable information.’

152               Textually, s 57 is actually more onerous than s 424A:  neither the invitation to comment nor the requirement to ensure that the applicant understands the relevance of the information is qualified by permitting the Minister to decide the appropriate manner of communicating them to the applicant.  In the case of s 424A it is only the requirement to ensure that is not so qualified.

153               However, s 424A(2) also applies to and further qualifies the subs (1) obligations to give information and invite comment.  The effect is to give the Tribunal, as McHugh J put it,  ‘a discretion as to which method to use for giving documents to an applicant … but requires the Tribunal to use one of those methods’:  SAAP at [65].  SAAP concerned an applicant in immigration detention; the same reasoning is, however, also apt in the case of an applicant not in immigration detention:  see SAAP at [67] per McHugh J.  Section 57 appears not to have been constrained by the necessity to give the information and the invitation in documentary form.  Nevertheless, the weighty obligation under s 57(2)(b) to ensure, as far as practicable, that the applicant understands why the information is relevant, would, as a practical matter, likely bear, in the case of an applicant who manifestly could not speak English, on the question whether he or she should be given the ‘relevant information’ in documentary form.

Consideration

(i)         Raising fresh points on appeal

154               As a preliminary point, the respondent submitted that none of the specific matters was raised before the primary Judge and that the Court should not allow these matters to be raised for the first time on appeal.  The respondent further says that some of the issues now sought to be raised involve issues that could have been the subject of evidence before the primary Judge, relying on Coulton v Holcombe (1986) 162 CLR 1 at 7 – 8 (‘Coulton’), in which Gibbs CJ, Wilson, Brennan and Dawson JJ stated:

‘In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards’.

155               The respondent also relied on Branir v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424(‘Branir’) where Allsop J, with whom Drummond and Mansfield JJ agreed, stated (at [37]) that this principle was ‘beyond question’.

156               It is now clear that appeals to a Full Court are by way of rehearing:  Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507, [75];  CDJ v VAJ (1998) 197 CLR 172, 199, 201 – 202 (‘CDJ’);  Allesch v Maunz (2000) 203 CLR 172, 180;  Cabal v United Mexican States (2001) 108 FCR 311, [222];  Branir, 432 – 435;  Warramunda Village v Pryde (2002) 116 FCR 58, [34].

157               Section 27 of the Federal Court of Australia Act 1976 (Cth)gives the Court, on an appeal, the power ‘in its discretion’ to receive further evidence.  In Branir (at [37]) Allsop J, speaking for a Full Court, said (echoing the statement in Coulton (at 7 – 8)):

‘It is beyond question that if a new matter is raised and evidence could have been given which by any possibility could have prevented the point from succeeding, the point cannot be taken: Coulton … at 7-8.’

158               However, in CDJ McHugh, Gummow and Callinan JJ, the majority Judges, considered a similar provision in the Family Law Act 1975 (Cth) (similar to s 27 of the Federal Court of Australia Act 1976 (Cth) and with the latter section also in mind – see [100]).  Their Honours (at 201 – 202) pointed out:

·                                            The ‘remedial nature’ of the provision: 

‘The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures’ (at [109]);

·                                            The ‘principle that a provision conferring judicial power upon a court should be construed liberally and without the making of implications or the imposition of limitations not found in the words used by the legislature.  That is so whether the limitation derives from the common law principles governing the grant of new trials upon proof of fresh evidence or from some other source’ (at [110]; emphasis added and footnotes omitted);

·                                            That ‘the Full Court’s jurisdiction is neither purely appellate nor purely original’ (at [111]);

·                                            The unlikelihood of a parliamentary intention that the provision should be construed so as to ‘have the practical effect of obliterating the distinction between original and appellate jurisdiction’ (at [111]);

·                                            The section exists to serve the demands of justice (at [111]); and therefore

·                                            Usually it is a necessity that the further evidence would have produced a different result if available at trial (at [111]).

159               Their Honours went on to say (at [114] – [116]):

‘No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard.  Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial.  In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge’s decision.  In that context, the likely effect of the further evidence on the Full Court’s view of the evidence before the trial judge is the important consideration.  Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial. 

Other limitations on the exercise of the power arise from the fact that the discretion which s 93a(2) confers must be exercised judicially. …

The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. … No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.’  (Emphasis added.)

160               Those considerations were set out in aid of the conclusion (at [108]) that:

 ‘Although the discretion to admit further evidence is not attended by any express words of limitation, the subject matter, scope and purpose of the appeal provisions in Pt X of the [Family Law Act 1975 (Cth)] and the issues involved in each appeal will point to the considerations which are or are not extraneous to the exercise of the power.’  (Emphasis added.)

161               Apart from constitutional settlements sometimes effected by judgments of the High Court, it is rare for judges to intend that their enunciations of general principles will be applied or construed like the words of a statute.  It is unlikely that that was the intention in Coulton and Branir.  In Branir itself Allsop J was at pains to say (at [38]):

‘… The possibility of evidence or the possibility that the hearing would have taken a different course, if not fanciful, may well suffice to deny raising of the new point.  These considerations should not be seen as not requiring counsel frankly and candidly to say that the trial would not have been conducted differently if he or she is of that view.’

162               Quite apart from a power to receive new evidence, what is the position of an appellate court rehearing a matter as to questions of law available on the materials before the trial judge but not raised at first instance?  An appellant wishing to raise fresh legal questions cannot, in the first place, be in a worse position than one seeking to augment the evidence itself.  Secondly, a party victorious at first instance is, in any case, liable to be defeated by a change in the law occurring before the appeal is heard;  that, indeed, is conventionally given as the main practical difference between a ‘strict’ appeal and one by way of rehearing.  The result of a new legal point being successfully raised is no harder for the litigant thereby defeated than if the defeat follows from some legal point newly raised.  Thirdly, however, there is undoubtedly great, general value in considerations of finality of litigation acting as a brake on appellate intervention, thereby preserving the integrity of the trial as the normal arena for final disposition of that case.  As a general statement of principle there is no conflict between what the Full Court approved in Branir and the approach in the cases next referred to.

163               In my respectful view, the correct approach, and the one generally adopted in practice in this Court, is that succinctly expressed in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 (‘VUAX’) by Kiefel, Weinberg and Stone JJ (at [46] – [48]):

‘Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir … at [20]-[24] and [38].

In Coulton …, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.  If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”

 

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters.  The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated.  Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.’  (Emphasis added.)

164               To similar effect, in Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 (‘Iyer’), Heerey, Moore and Goldberg JJ said (at [22] – [24]):

‘… We recognise that there is a particular sensitivity in refugee cases where an adverse decision may have very serious consequences for an applicant.

Although it is in the interests of justice that decisions be made on the true merits of the case sought to be argued, the structure and integrity of the appellate process must also be taken into consideration.  It is incumbent upon parties bringing applications to the Court to review decisions of tribunals such as the [Tribunal] to make it clear from the outset what are the substantive grounds of review relied upon … .

However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised.  That does not mean that an appellate court should enter upon a full consideration of the grounds.  To do so would make the requirement for leave meaningless.  It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success.  We also consider it appropriate to take into account whether the appellant had the benefit of legal representation at the hearing before the primary judge.’ (Emphasis added.)

165               It is no accident that the ‘practice’ spoken of in VUAX has often occurred in migration matters.  Especially is this so in relation to cases concerning claims to refugee status.  In the High Court and in this Court, judges have shown, as was recognized in Iyer, that they are acutely aware of what may be at stake if the claims made are genuine.  There is no longer a general system of legal aid for poor applicants, as many of them in such cases are, who are independently assessed as having reasonably arguable cases.  Often, unrepresented applicants who appear to be decent, genuine but impecunious people are reduced to floundering in complete incomprehension of the prevailing system of judicial review or the dangerous partial comprehension of those with a little knowledge of that system.  Unsurprisingly, Full Courts have been slower in such cases to assert the primacy of finality of litigation considerations than in many cases where the risk of very serious personal harm is not involved.  In saying this, I do not lose sight of the fact that, to degrees which may vary from place to place and time to time, there is a proportion of refugee claims which are simply legally unwarranted, and cynical attempts to subvert this country’s immigration system.  Even the cynic, however, has a right to lawful treatment.  In many areas of the law it is sometimes necessary, for the sake of the truly deserving, to accord concessions also to those ultimately shown to be undeserving.

166               Thus, relevant questions include:

1)                  Do the new legal arguments have a reasonable prospect of success?

2)                  Is there an acceptable explanation of why they were not raised below?

3)                  How much dislocation to the Court and efficient use of judicial sitting time is really involved?

4)                  What is at stake in the case for the appellant?

5)                  Will the resolution of the issues raised have any importance beyond the case at hand?

6)                  Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

7)                  If so, can it be justly and practicably cured?

8)                  If not, where, in all the circumstances, do the interests of justice lie?

167               As to 1), the prospects of success, it is enough, at the leave stage, to say that counsel for the appellant has been able to mount at least a respectable argument in relation to all of the grounds proposed (including the additional matter raised in submissions) and in relation to some grounds, on any view, an apparently strong argument.  The appellant surmounts that hurdle.

168               As to the second question, it is clear that the appellant sought to be legally represented but, through impecuniosity, was unable to achieve this. 

169               Thirdly, it is only possible and by no means certain or even likely that an appeal could have been avoided had the fresh points been raised below.  However, any appeal would have been more efficiently conducted had they been so raised.  Nevertheless, the case was short at first instance and, despite various alarums and excursions, will have occupied no large amount of time to hear the new points fully argued, and no very long judgment-writing time (an uncertain quantity in most cases, in any event).

170               Fourthly, the stakes for the appellant may be very high.  This is a case of a person claiming refugee status who has been able to produce independent material, which there is no apparent reason to depreciate, to support her case.  Although there are other factors which fairly raise questions as to her credibility, the delegate’s adverse determination on that score was, as a matter of fact, not aided by the appellant having had an actual opportunity to deal with those questions.  There is, therefore, some real possibility that an adverse decision on leave to appeal might have very serious consequences for her. 

171               Fifthly, the issues raised are apt to throw light for the respondent’s delegates (or for the Tribunal) on the manner of the discharge of their duties, though no new principles are involved, with the exception that the relevance of SAAP to delegates’ consideration would be involved.  There is a public interest in the primary assessment of refugee claims according to law, notwithstanding the usual availability of a merits review by the Tribunal.

172               Sixthly, on the question of actual prejudice, the following matters appear relevant:

·                                The respondent is not in the frequent position of a personal litigant, at private risk of solicitor and client costs, and subject to the personal strain of involvement in litigation.

·                                As a practical matter, an order that the impecunious appellant should, in any event, pay the respondent’s costs is not likely to defray them.

·                                The respondent has had the opportunity to point to any actual prejudice but on counsel’s advice, after ample notice, her solicitors have declined to make the simple enquiries necessary to establish whether any other actual prejudice might be advanced to the Court.

173               Seventhly, can any actual prejudice be cured?  Certainly not as to the wasted costs.  As to the possibility of calling further evidence, despite counsel’s mistaken view of his duty of fairness (discussed below), the Court can and should invite the respondent to say whether she wishes to call any further evidence:  any such evidence, it is very likely, would be short.  As there are reasons, indicated below (see [97] – [100] below), for doubting whether there is any such evidence, this matter can be dealt with by giving the respondent liberty to apply for a reconsideration of any adverse provisional decision on the appeal in the light of any further available evidence. 

174               Finally, as to the overall interests of justice, the possibility of very serious consequences for the appellant, and her circumstances, should be taken to outweigh the facts that costs may have been irremediably wasted (in a practical sense), that the time of four judges rather than one has regrettably been engaged on her case and that there has been an insult, even if unintended, to the structure and integrity of the proper functioning of the trial and appellate processes of the Court.

175               For these reasons, it is my view that this is a case, an exceptional case, where it is expedient and in the interests of justice to allow the appellant leave to put before the Court the further grounds stated in the intended amended notice of appeal and the appellant’s written submissions.  I would therefore grant the appellant leave to amend her application and notice of appeal.

(ii)        Natural justice (and s 57)

176               The question of natural justice having been raised, its content is to be ascertained, as Hill J points out at [40], by reference to, among other things, the statutory provisions.  Plainly one of them is s 57.  That provision received no attention in the submissions of either counsel.  Such however, is not a reason for us to decide the case as if s 57 did not exist.  It appears to me to have considerable relevance.  Among other things, at least some of the information that the delegate included in his letter of 16 April 2002 was information of kinds contemplated by s 57(1) and not falling within s 57(3).  Since the statutory provisions are so intimately bound up with the question of natural justice and, like s 424A, s 57 is a statutory partial expression of that very concept (see SAAP at [50] per McHugh J); it seems to me that we should proceed to decide the relevant questions.

177               Section 494A only applies if ‘a provision’ of the Act or Regulations requires or permits the Minister to give a document to a person.

178               Section 494B applies only for certain purposes, namely ‘the purposes of provisions’ of the Act or Regulations that both –

‘(a)      require or permit the Minister to give a document to a person (the recipient); and

(b)       state that the Minister must do so by one of the methods specified in this section;

… .’

179               Both of those sections, by the references to ‘provisions’, clearly enough contemplate express requirement or permission, as the case may be, by particular provisions of the legislation.

180               The heading to s 494C (though not part of the Act: s 13(3) Acts Interpretation Act 1901 (Cth)) may be legitimately referred to –

‘(a)      to confirm that the meaning of the [section] is the ordinary meaning conveyed by the text …, taking into account its context in the Act and the purpose or object underlying the Act; or

…

(b)        to determine the meaning of the provision when:

(i)         the provision is ambiguous or obscure;’ (s 15AB(1)(a) and (b)) ibid.

181               Under s 494C(1), s 494C only applies –

‘if the Minister gives a document to a person by one of the methods specified in s 494B (including in a case covered by s 494A).’

182               But, as ss 494A and 494B together only apply when (or for the purposes of) ‘provisions’ of the legislation require or permit the Minister to give a document to a person, in my opinion, the ordinary meaning of s 494C is that it is only concerned with –

·                                when the person is taken to have received a document

·                                which is otherwise required or permitted to be given to a person by a provision other than s 494C itself.

183               If that view is wrong, there is at least ambiguity about the matter and it is permissible to have regard to the heading to s 494C which is in the following terms: ‘When a person is taken to have received a document from the Minister’.  The heading clarifies the matter, so that the section has the meaning just proposed.

184               It may, because of s 57(2)(a) and ss 494A to 494C inclusive, be accepted that the delegate may not have been obliged to telephone or otherwise take alternative steps to the letter of 16 April to tell the appellant of the information that troubled him as to her possible lack of credit, insofar as s 57(2) obliged the Minister to give her certain information, to ensure her understanding and to invite her to comment on it.  Section 57(2)(a), in substance, permits the Minister to choose an appropriate way of giving that information.  Section 494A could therefore operate, and in turn so could ss 494B and 494C.  Section 62(1) then authorised the delegate to make the decision to grant or refuse the visa application without taking any further action to obtain the invited information.

185               However, s 62 applies not only where the Minister or delegate is required by s 57 to give information.  A delegate might, for example, regard it as fair and right, despite s 57(1)(b) or (c) or s 57(3), to invite comment or further information (pursuant to s 56) from an applicant, being information referred to in one of those paragraphs.  If an applicant is so invited, the Minister may, once the time limited for giving the information has passed, proceed to make the final decision without more ado.

186               Nevertheless, for s 62(2) to operate, the applicant must have been ‘invited’ to comment.  In relation to an invitation concerning information falling within s 57(1)(b) or (c), the method of invitation is, so far as it seeks additional information, permitted to be by documentary means:  see [89] above.  Sections 494A and 494B then would have the effect of permitting or requiring postage to the applicant’s last known address to be deemed to be an effective invitation, although in reality it may not have been.

187               However, the Act draws a distinction between ‘comment’ and ‘information’:  compare ss 57(2)(a), 57(2)(c) and 58(1).

188               It follows that what is an effective invitation to comment on the kinds of information referred to in s 57(1)(b) and (c) for the purposes of s 62(2), is not answered by any specific provision of the Act.  There is no equivalent in relation to s 57(2)(c), of s 424A(2).  On general principles, a statutory requirement of an ‘invitation’ to comment on information of relevance to one’s interests would be regarded as necessitating a real and effective invitation: see, for example, Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [30] and [31]; 183 ALR 188.

189               On the material before his Honour, there had not been, as was known to the delegate by 9 May 2002 (by the return of the letter of 16 April) before he proceeded to make his decision, an effective invitation to the applicant to comment.  The delegate also knew of an alternative means of communicating with the appellant, namely by her telephone number.

190               Although the Tribunal had no jurisdiction to deal with the appellant’s application to it, a legally effective conclusion as to such lack of jurisdiction could only be made by the Tribunal or a court.  The respondent’s departmental officers correctly recognized this by fulfilling the duty of the departmental Secretary pursuant to s 418.  Under that section, the Tribunal is to notify the Secretary of the making of an application to it.  The Secretary is then to give the Tribunal the statement of reasons for the decision sought to be reviewed:  s 418(2).  The section continues:

‘(3)      The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.’

191               The significance of this lies in the fact that, in the material given by the Secretary to the Tribunal, there is no file note or other indication that, after 9 May 2002, the delegate made any further effort of any kind to invite comment from the appellant.  Given the usual practices that attend public administration in such matters, the strong inference is that the delegate made no such attempt.

192               Despite notice of this matter, the respondent’s legal representatives deliberately refrained from making enquiry as to whether the delegate or any other departmental officer had made any such attempt, especially by telephone.  Counsel relied, in that regard, on the statements in Coulton and Branir that where ‘by any possibility’ other evidence might be called by the respondent, an appellant will not be permitted to raise new questions of law.  Evidently counsel overlooked what was also, and nevertheless, said in Branir at [38], set out again for convenience as follows:

‘The possibility of evidence or the possibility that the hearing would have taken a different course, if not fanciful, may well suffice to deny raising of the new point.  These considerations should not be seen as not requiring counsel frankly and candidly to say that the trial would not have been conducted differently if he or she is of that view.’

193               Obviously, in many cases counsel could not say such a thing without making due inquiry.  Where inquiries are within a narrow range and are easily made and answered, as would appear to be the case here, they should of course be made.  To say that is not to detract from the extreme undesirability of forcing any difficult, hindsight decision on counsel: Allsop J in Branir was, with respect, eloquent and compelling on that point.  The Court should be concerned with real prejudice or the lack of it where the actual position can readily be ascertained.

194               Nevertheless, when, as I think, a dispensation ought to be given to the appellant, it would be wrong, even at this late stage, to disadvantage the respondent for a mistake.  The matter can be dealt with by giving liberty to the respondent to apply to call further evidence and seek reconsideration of this issue.  If and when that happens, the appellant can re-apply to call her further intended evidence.  For the moment, as the latter evidence would not affect the result I propose, I would reject it.

195               Further, some (if not all) of the material on which the delegate sought to invite the appellant to comment was of the kinds referred to in s 57(1).  As to that, the delegate had power, between 9 and 28 May, to extend the period for a response by the appellant.  Nothing bound the delegate, when big things might be at stake, not to take further steps to inquire further and differently of the appellant.

196               In all the circumstances there was, in my opinion and subject to any further evidence being adduced, a denial of procedural fairness on this account.

197               So much does not touch the delegate’s not having invited the appellant to comment or produce material in relation to his intended reliance on information as to the return of the letter of 16 April.  The information concerned may be taken to be (a) the information that the letter had been returned unclaimed, and (b) the inferred information that (i) the appellant had ‘failed to make adequate arrangements in maintaining contact with the Department’ and (ii) in consequence, the appellant’s genuineness and the rational basis (‘well foundedness’ was the delegate’s term) for her claimed fear was thereby rendered at least doubtful.  Such information would fall within s 57(1).  The delegate’s not having issued such an invitation might possibly be either a denial of natural justice or a breach of s 57 or both.  In each case, the analysis depends on questions bound up with a concept necessary to the operation of s 57, namely whether the information concerned ‘would be the reason or a part of the reason’ for refusing the visa application. 

198               Sackville J recently summarised the authorities on the phrase ‘would be the reason or part of the reason’, as it appears in s 424A, in SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 769.  There is no reason to view the phrase in s 57 differently.  His Honour said (at [55]):

‘The following propositions relevant to this issue appear to be established by the authorities:

1.      In assessing whether information is the reason, or a part of the reason, for the [Tribunal’s] decision, the question is to be judged retrospectively, in the light of the [Tribunal’s] reasons.  This is so notwithstanding that s 424A(1) addresses the matter prospectively: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 (‘Paul’), at [94] per Allsop J (with whom Heerey J agreed); VAF [v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 206 ALR 471], at [29].

2.         Section 424A(1) requires identification of the reason for affirming the decision under review.  In one sense, the reason is usually the [Tribunal’s] lack of satisfaction that the applicant has a well-founded fear of persecution for a Convention reason.  However, some “unbundling” of the immediate reason for the decision is required for the purposes of s 424A(1): Paul, at [99]; VAF, at [31]. 

3.         The fact that the [Tribunal] acknowledges in its reasons that the information has some relevance to its determination does not necessarily mean that the information forms “a part of the reason” for the decision: VAF, at [30].  Nor is it ordinarily enough that the information has some “general adverse relevance”: Paul, at [94]. 

4.         The approach that should be taken is that set out in VAF, at [33]:

           

“It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision.  While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the tribunal’s decision.  Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition.  When a tribunal’s reasons are to be evaluated for s 424A(1) purposes, the court as a matter of judgment is required to isolate what were the integral parts of the reasons for the tribunal’s decision.  That task, necessarily, is an interpretative one.  In some instances the differentiation of the integral and the inessential may be by no means easy – and made the more so by less than explicit indications in the reasons themselves as to what the tribunal itself considered to be integral”.

The above passage was approved by the Full Court in VUAX … at [51]-[54]. 

5.         If the information, considered in the context of the [Tribunal’s] reasoning process and the aggregate of its findings, is “relatively minor and unimportant in the scheme of things” (VAF, at [4]), it is not likely to be a part of the reason for the decision.  A useful test is whether the information was:

           

“so integral to the reasoning process rejecting the [applicant’s] claim as to require as a matter of fairness that the [applicant] be told that information (cf s 424A(1)(a)) and why it was relevant to the review (cf s 424A(1)(b))’: VAF, at [41]; VUAX, at [53]-[54].”’

199               It will be obvious that ascertainment of what is ‘part of the reason’ for refusing a visa will often not be an easy matter. (It would plainly be wise, as well as fair, for the Tribunal and delegates to err on the side of caution.)  Further, as Sackville J’s fifth point shows, a judgment of what is ‘part of the reason’ is itself partly normative:  is it ‘so integral to the [adverse] reasoning process … as to require as a matter of fairness that the [applicant] be told that information and why it was relevant’?

200               ‘The reason’ (or relevant reason) for refusing the appellant a visa was rejection of her credibility.  Several sub-reasons, as it were, were given by the delegate for that reason.  The information in question was one of them.  The delegate did not indicate their comparative importance.  In my opinion, it is impossible to say that the material in question was not sufficiently important to the delegate’s reasoning process as not to require, as a matter of fairness, that the appellant be made aware of it.  It would not have been at all obvious to her that the delegate would take the bare return of the letter into account in the ways that he did.  There was at least a prospect that, had the delegate sought further information and comment, such information could ease his mind about the appellant’s diligence in keeping in touch with the Department (and also lead to her dealing with the earlier matters sought to be raised with her).

201               Following the High Court’s decision in SAAP, it seems clear that the Court should take no narrow view of such rights, in aid of procedural fairness, as are accorded to an applicant by a provision such as s 57 or s 424A.  The majority judges in SAAP were McHugh, Kirby and Hayne JJ.  McHugh J (at [50]) said:

‘The obligation on the Tribunal to give the invitation and to invite comment on the information is expressed in broad and general terms. … It applies to information received by the Tribunal from sources other than the applicant.  It also does not apply to all information that the Tribunal receives.  It only applies to information that the Tribunal considers “would form part of its reason for refusing the application for review”.  Nevertheless, the object of the section must be to provide procedural fairness to the applicant by alerting the applicant to material that the Tribunal considers to be adverse to the applicant’s case and affording the applicant the opportunity to comment upon it.’  (Footnotes omitted.)

202               In a footnote his Honour referred, with apparent approval, to the following paragraph from Merkel J’s judgment in Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919;  110 FCR 27 (at [39]):

‘Section 424A does not require the [Tribunal] to provide to an applicant all of the information upon which it proposes to act, other than information provided by an applicant for the purpose of the review.  Rather, the section requires the [Tribunal] to provide the applicant with “particulars of any information” that the [Tribunal] considers would form part of its reason for refusing the application for review, to explain to the applicant why that information is relevant to the review and to invite a response to it.  Thus, s 424A enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise: see … Miah …179 ALR 238 at 269 per McHugh J.  By enacting s 424A and its counterparts elsewhere in the Act, the legislature has accepted that fairness dictates that an opportunity must be provided to applicants for visas or for review to respond to, or deal with, the adverse information.’

203               Gummow J, though dissenting on the applicability of s 424A to the facts in SAAP, nevertheless considered (at [136]) that:

‘…s 424A mandates the fairness in the treatment of applicants for review which is an inviolable requirement attaching to the exercise of the jurisdiction of the [Tribunal] attracted by s 414 and continuing through to the preparation of the written statement of decision under s 430.’

204               In my opinion, it is clear from the materials that were before the primary Judge that s 57 was not complied with and, on the analogy of SAAP, that was an error of a kind to attract orders for the issue of the relevant constitutional writs.  There was also a corresponding denial of procedural fairness.

(iii)       Failure to ‘have regard’ to Mr Wei’s letter?

205               There is no doubt that the delegate was obliged to ‘have regard’ to the information from Mr Wei as s 54(1) and s 55 so required.

206               As to whether he did so have regard, two matters are relevant.  Firstly, the delegate was subject to a general requirement to give written reasons why the appellant was not a ‘refugee’ within the meaning of the Convention:  s 66(2)(c).

207               The second matter is the nature of the information from Mr Wei.  ‘Country information’ thought ‘[r]elevant’ by the delegate included:

‘A statement on the Falun Gong Bulletin Board indicates that “genuine Falun Gong practitioners seeking political asylum would obtain proofs through local Falun Gong assistance centers and local Falun Dafa Societies” (Public Notice Regarding Wu’s Political Asylum Case in New York, 8 June 1999, Falun Dafa Bulletin Board … .’

208               Mr Wei and his association apparently fit the profile of organisations who would be said to be supporting genuine Falun Gong adherents.

209               Mr Wei appears to have been at pains to stress his concerns that persons seeking protection as Falun Gong practitioners should be ‘genuine’; that there was only a quite small number (31) of such people of whom his organisation knew, after ‘careful examination’; and that, independently of any particular person’s claim, he had sent a list of the names of the 31 people, including the appellant’s name, to the Minister.

210               The ready inferences are that, if Mr Wei’s association was what it purported to be, it would be concerned to weed the genuine Falun Gong adherents claiming to be refugees from the mere opportunists;  would be in a good position to examine and judge such genuineness, and would have a clear, current understanding of what might await particular kinds of Falun Gong adherents in China.  Thus, the letter, if genuinely from a genuine Falun Gong (or Falun Dafa) organisation, would be powerful evidence for the appellant’s case.

211               If Mr Wei were bogus, it is highly unlikely that this would not be either readily known to the respondent’s department or readily checked, as would be the question whether the letter was forged. 

212               There was no independent requirement on the delegate so to check.  Nevertheless, given the potential importance of the letter and the delegate’s fleeting, uncritical references to it in his reasons, in my view the inference should be drawn that the delegate did not actually consider what significance and weight it deserved.  A decision-maker cannot be said to ‘have regard’ to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration.  As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 389;  109 FCR 152 at [58], a ‘decision-maker may be aware of information without paying any attention to it or giving it any consideration’.  In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration – had in Black CJ’s phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in ‘an active intellectual process’ in relation to the letter – yet remained silent about such consideration in the reasons he gave.  I am satisfied he did not do so.

213               Plainly, to have regard to all the available information is an inviolable duty of the Minister or delegate before refusing a visa.  The appellant is entitled to relief because of the delegate’s failure to do so.

(iv)       Delegate’s approach to claims as to appellant’s activities in Australia

214               The appellant’s claims (made on 22 March 2002) as to her activities in this country included that –

(a)                                                                Every morning, Monday to Friday, since the day after her arrival in Australia on 8 February 2002 she went to the well-known Chinese Gardens and the ‘Chinatown’ precinct in Sydney in order, among other purposes, to distribute ‘truth information’.

(b)                                                               In the afternoons, she participated in peaceful demonstrations outside the ‘Chinese Consulate-General’.

(c)                                                                In March 2002 she took part in ‘the grand Falun Dafa march held during [the] CHOGM [Commonwealth Heads of Government Meeting]’.

(d)                                                               On 11 March she attended in Canberra a memorial for a Falun Gong practitioner allegedly tortured to death by the Chinese Government.

(e)                                                                She and others were photographed by ‘Chinese spies’ outside the Consulate and the Embassy.

(f)                                                                 The CHOGM event was reported by many media organisations including the Chinese Guangming Daily which ‘filmed us’.

(g)                                                                Her name and photo were already in the hands of the Chinese authorities.

(h)                                                                ‘I don’t think they [would] let me off’.

215               The delegate dealt with these ‘sur place’ claims very briefly:

‘I am also not satisfied that she has been identified in Australia as a result of the protest activities nor that she would be at risk of persecution in China for that reason.’

216               Thus, the delegate apparently did not disbelieve the appellant as to her claims concerning the Australian events she had participated in and observed.

217               In Abebe v Commonwealth [1999] HCA 14;  197 CLR 510, Gleeson CJ and McHugh J said (at [82] – [83]):

‘Given the nature of the prosecutor’s claim for refugee status, the logical starting point for the Tribunal to determine whether the prosecutor had a well-founded fear of persecution because of her husband’s or her political opinions was whether the prosecutor or her husband had been detained as she claimed.  …  If satisfied that the prosecutor had been detained as she claimed, the next question for the Tribunal would have been whether she had been detained by reason of the political opinions she or her husband held or were suspected of holding.  If satisfied that she had been detained for holding or being suspected of holding such opinions, the Tribunal would then have been obliged to determine whether the fact or cause of her detention constituted persecution for reasons of political opinion.  Evidence that the prosecutor had been persecuted in the past would have given powerful support to the conclusion that the fear that she claimed that she held was well founded.

           

The prosecutor carried no onus of proof in relation to these matters, and the fact that she might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that her claim for refugee status must fail.  As Guomakes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution.  The Tribunal “must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution”.’  (Footnotes omitted) 

218               In Guo, six judges of the High Court had joined in the propositions thus cited and extracted.

219               North J and I discussed the relevant principles in Kalala v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 212, 214 – 216.  I adhere to what we there said at 215 – 216:

‘In such cases, the degree of probability, even if well below 50 per cent, that the subject events occurred and/or that they bore the subject character needs to be assessed to determine whether an applicant has a well-founded fear of persecution:  Abebe per Gleeson CJ and McHugh at 544-545 (cf Kirby J in Wu Shan Liang v Minister for Immigration and Multicultural Affairs (1996) 185 CLR 259 at 294).  If there is, in the sense mentioned, an unacceptable risk that the events occurred or had such character, they are to be taken into account in assessing whether there is a real chance of Convention-related harm to the applicant.  If there is a real chance that some event occurred or bore a certain character, that circumstance may powerfully affect the assessment of whether fear of future harm befalling an applicant, if returned to his or her country of nationality, is well-founded.

Such assessments of the degree of probability (it is actually the degree of possibility, unless the term probability is used in a mathematical sense) about past events and their characterisation will often be difficult.  Even where full judicial review might be available, it would be only sensible to allow some considerable scope for reasonable variation of individual approach on the part of decision-makers.  But these matters provide no reason for failure to insist that such assessment by undertaken.’

220               The delegate is presumed to have acted reasonably, absent any allegation to the contrary.  There may reasonably be attributed to him knowledge of notorious background facts about China:  that it is an authoritarian, indeed politically (though, not now, economically) totalitarian state.  The delegate apparently accepted that –

‘the active proponents or leaders of the Falun Gong movement as opposed to “ordinary” practitioners, … would be more likely to come to the notice of authorities. …’  (Emphasis added.)

 

221               On any view, the appellant’s claims as to events in Australia indicated that she claimed to have been an ‘active proponent’ of Falun Gong here.  In these circumstances, the delegate’s expressed lack of satisfaction that she had been identified by the Chinese authorities can hardly have betokened any confident and complete rejection of that proposition.  There was, therefore, according to settled legal understanding as to the requisite mode of making the assessment in refugee cases, no reason for him to dispense with the necessity to consider, despite his lack of satisfaction that the claimed identification had occurred, whether there was not, nevertheless, a real and substantial risk that it had, and in turn to make an estimate of future risk based upon any conclusion that such a risk of identification did exist.

222               However the delegate did not take that further step.  By that failure he misunderstood how he might be satisfied of the relevant protection visa criterion.  He failed to ask or answer the correct legal question.  That is, it is now well-settled, a jurisdictional error.

(v)        Other challenges by the appellant

223               Generally for the reasons given by Hill J, I agree that these have not been made out.

(vi)                                                 Discretion

224               For the reasons given by Hill J at [63] – [64] the usually powerful consideration that an appellant may have chosen not to exercise his or her right to a complete reconsideration of the merits of the case by the Tribunal and, instead, sought relief by any of the discretionary constitutional writs is not applicable here.  No other adequate discretionary ground for refusing relief has been shown.

Addendum

225               Should any occasion arise when the matter might become relevant, as to the appellant’s apparent sincerity, remarked upon by Hill J in his closing remarks, I wish to ally myself with his Honour’s sentiments.

Disposition

226               Accordingly, I propose that –

1.         The Refugee Review Tribunal be joined as the second respondent.

2.         Leave be granted to the appellant to file and rely on her proposed amended notice of appeal.

3.         That notice of appeal be deemed to have been further amended by the insertion of a ground that the respondent’s delegate denied her natural justice by not inviting her to comment on the use he proposed to make of the return of the letter of 16 April 2002.

4.         Except as to costs, the appeal be upheld.

5.         The decision of the delegate be quashed.

6.         The respondent by herself or a delegate (other than the delegate who has already considered this matter) consider and determine the appellant’s visa application according to law.

7.         The respondent is to pay the appellant’s costs of the appeal (but not at first instance) as assessed or taxed.

8.         Orders 4 to 7 inclusive are subject to the exercise of leave, now given, to the first respondent to file and serve within 14 days any further evidence and to seek reconsideration of those orders in the light only of such evidence.

I certify that the preceding one hundred and thirty-one (131) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:              24 August 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 627 OF 2003

 

BETWEEN:	NAJT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT   REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

 

JUDGE:	HILL, MADGWICK AND CONTI JJ
DATE:	24 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

            CONTI J:

227               I am indebted to Hill and Madgwick JJ for their respective reasons for judgment, which lead of course to different conclusions.

228               I should perhaps record that on the hearing day originally appointed for the hearing of this appeal, the appellant was so emotionally distraught that as a litigant then appearing in person, she was unable to utter a word when invited, to address the Full Court on the merits of her appeal from the primary judge.  The assistance which the Full Court subsequently received from pro bono counsel, appointed by the New South Wales Bar Association, extended well beyond what was provided to the primary judge for the purpose of his Honour’s review of the Refugee Review Tribunal’s decision, and understandably so, given the appellant’s entire absence of legal qualification on that earlier occasion of her appearance in person at first instance in the Federal Court.

229               I have had the benefit of comprehensive reasons for the differing judgments of Hill and Madgwick JJ, each of which exemplifies the outcome of considerable research and thought.  I have reached the conclusion that the appeal should be upheld, essentially for the reasons of Madgwick J.  I agree in particular that there is sufficient force in his Honour’s adoption, in the context of the present circumstances, of the kind or area of approach taken by the Federal Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]-[48], and earlier in Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCAFC 1788 at [22]-[24].  I would add that in the context of refugee case appeals, where the Court is able to perceive an apparency of genuineness in the circumstances of an appellant, the principles cited by the Minister, for which Coulton v Holcombe and Branir Pty Ltd stand as authority, may be conceivably susceptible to a degree of modification or alleviation.  The present somewhat unique context to this appeal tends I think to support that observation. 

230               I therefore agree with the orders proposed by Madgwick J.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:              24 August 2005

Counsel for the appellant:	Mr B M Zipser
Counsel for the respondents:	Mr T Reilly
Solicitor for the respondents:	Blake Dawson Waldron
Date of hearing:	3 May 2005
Date of judgment:	24 August 2005