FEDERAL COURT OF AUSTRALIA

SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107

MIGRATION – review of a decision to refuse protection visa – consent orders that matter be remitted from Federal Magistrates Court to the Tribunal for reconsideration – Tribunal to be differently constituted – whether Federal Magistrate had the power to make such an order – whether first Tribunal’s compliance with s 424A of the Migration Act 1958 (Cth) covered second Tribunal – whether second Tribunal failed to comply with s 424A

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 5, 411, 412, 414, 415, 421, 422, 422A, 424A, 441A, 457, 458, 460

Minister for Immigration & Multicultural Affairs v Wang (2003) 215 CLR 518 referred to

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162 referred to

SZEPZ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR

NSD2229 OF 2005

EMMETT, SIOPIS & RARES JJ

30 JUNE 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This appeal concerns the effect of certain provisions of Part 7 of the Migration Act 1958 (Cth) (‘the Act’).  Part 7 deals with review by the second respondent, the Refugee Review Tribunal (‘the Tribunal’), of protection visa decisions.  Section 424A of the Act, which is in Part 7, provides that, in certain circumstances, the Tribunal must give, to an applicant for review, particulars of certain information and invite the applicant to comment on the information.  The appeal is concerned with the circumstance where a decision of the Tribunal is set aside by a court order and the matter is remitted to the Tribunal for reconsideration according to law.  The question is whether the Tribunal must, before making a second decision, give such information to an applicant again if the information had already been given to the applicant prior to the first decision. 

PROCEDURAL HISTORY

2                     The appellant is a citizen of Bangladesh.  He arrived in Australia on 9 October 2000 and on 17 November 2000 applied for a protection (class XA) visa under the Act.  On 8 March 2001, a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs (‘the Minister’), refused to grant a protection visa.  On 3 April 2001, the appellant applied to the Tribunal for review of the delegate’s decision.  On 12 May 2003, the Tribunal affirmed the delegate’s decision.  The decision was published on 5 June 2003. 

3                     On 30 June 2003, the appellant commenced a proceeding in the Federal Court of Australia.  He claimed Constitutional writ relief under s 39B of the Judiciary Act 1903 (Cth) in respect of the Tribunal’s decision of 12 May 2003 (‘the First Decision’).  On 1 September 2003, the Federal Court ordered that the proceeding be transferred to the Federal Magistrates Court.  On 15 April 2004, the Federal Magistrates Court, by consent, made the following orders (‘the Consent Orders’):

‘1.        The application be allowed.

2.         The matter be remitted to the Refugee Review Tribunal differently constituted for reconsideration according to law.

3.         The respondent pay the applicant’s costs agreed in the sum of $1,600.’

4                     The Full Court was informed that the Minister had agreed to the Consent Orders on the basis that procedural fairness had not been accorded to the appellant in relation to independent country information concerning Bangladesh.  However, there is nothing formally before the present Full Court to indicate that the Tribunal was informed of the jurisdictional error that led to the making of the Consent Orders.  Further, the basis for the Consent Orders was not identified at the hearing before the primary judge.  It is incumbent upon parties who propose orders by consent setting aside administrative decisions to set out clearly and cogently the basis upon which the Court is being asked to act by consent.  The judicial officer concerned will then be in a position to make a properly considered decision as to whether to make the orders propounded by the parties (see Minister for Immigration & Multicultural Affairs v Wang (2003) 215 CLR 518 at 541-542 [74]-[77]).

5                     On 7 September 2004, the Tribunal, differently constituted, once again affirmed the decision of the delegate not to grant a protection visa to the appellant.  That decision was published on 5 October 2004 (‘the Second Decision’).  On 27 October 2004, the appellant commenced a proceeding in the Federal Magistrates Court.  In that proceeding, the appellant claimed Constitutional writ relief under the Judiciary Act in respect of the Second Decision.  An amended application was filed on 19 January 2005 and a further amended application was filed on 12 October 2005.  On 27 October 2005, the Federal Magistrates Court ordered that the Tribunal be joined as a respondent, that the proceeding be dismissed and that the appellant pay the Minister’s costs in the sum of $5,000. 

6                     By notice of appeal filed on 16 November 2005, the appellant appealed to the Federal Court of Australia.  The Chief Justice has directed that the appeal be heard by a Court consisting of three judges. 

THE LEGISLATIVE SCHEME AS RELEVANT

7                     Part 7 of the Act deals with review of protection visa decisions by the Tribunal.  Tribunal is defined in s 5 as the Tribunal established by s 457.  Section 457 provides that a Refugee Review Tribunal is established and s 458 provides that the Tribunal consists of:

• a Principal Member, and
• a Deputy Principal Member, and
• such number of Senior Members and other members as are appointed in accordance with the Act.

8                     Section 411 provides that a decision to refuse to grant a protection visa is an RRT-Reviewable Decision.  Under s 412(1), an application for review of an RRT-Reviewable Decision must be made in the approved form and must be given to the Tribunal within the period prescribed.

9                     Under s 414, if a valid application is made under s 412 for review of an RRT-Reviewable Decision, the Tribunal must review the decision.  By s 415, the Tribunal may, for the purposes of the review, exercise all the powers and discretions that are conferred by the Act on the person who made the decision.  In the present case, the Minister’s delegate made the relevant decision.  The Tribunal may affirm the decision, or vary the decision, or set the decision aside and substitute a new decision.

10                  Under s 460(1) of the Act, the Principal Member is the executive officer of the Tribunal and is responsible for the overall operation and administration of the Tribunal.  Under s 460(2)(b), the Principal Member is responsible for allocating the work of the Tribunal among the members, including himself or herself, in accordance with guidelines laid down by the Principal Member. 

11                  By s 421(1), the Tribunal is to be constituted, for the purposes of a particular review, by a single member.  The Principal Member is to give a written direction about who is to constitute the Tribunal for the purposes of a particular review.  Sections 422 and 422A deal with reconstitution of the Tribunal in particular circumstances. 

12                  Section 422 is enlivened if the member who constitutes the Tribunal for the purposes of a particular review either stops being a member or is not available for the purpose of the review at the place where the review is being conducted.  In such a case, the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.  If a direction is given under s 422, the Tribunal, as constituted in accordance with the direction, is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted. 

13                  Section 422A is enlivened if the Principal Member thinks the reconstitution of the Tribunal is in the interests of achieving the efficient conduct of a particular review in accordance with the objectives set out in s 420(1).  The Principal Member may direct that the member constituting the Tribunal for the particular review be removed and that another member constitute the Tribunal for the purposes of that review.  However, under s 422A(2), the Principal Member must not give such direction unless certain prerequisites have been satisfied. 

14                  One of those prerequisites is that, either the Principal Member is satisfied that there is insufficient material before the Tribunal for the Tribunal to reach a decision on the review, or a period equal to, or longer than, the prescribed period has elapsed since the Tribunal was constituted.  A further prerequisite is that the Tribunal’s decision on the review has not been recorded in writing or given orally and that the Principal Member has consulted the member constituting the Tribunal.  If a direction is given under s 422A, the member constituting the Tribunal in accordance with that direction is to continue and finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the member who previously constituted the Tribunal. 

15                  It is in the context of the scheme briefly described above that s 424A must be considered.  Section 424A(1) relevantly provides that the Tribunal must:

• give to an applicant particulars of any information that the Tribunal considers would be the reason, or part of a reason, for affirming a decision that is under review by the Tribunal; and
• ensure, as far as is reasonably practical, that the applicant understands why the information is relevant to the review; and
• invite the applicant to comment on the information.

16                  Under s 424A(2), the information, and the invitation to comment on it, must be given to the applicant by one of the methods specified in s 441A.  Section 441A provides for four methods of giving a document to a person.  Each of the methods consists of a member of the Tribunal, the Registrar or an officer of the Tribunal, or a person authorised in writing by the Registrar, doing something with the document.

THE FIRST DECISION

17                  The appellant claimed that he feared harm in Bangladesh as a Hindu and that the government of Bangladesh would not protect him.  He claimed that he had been an activist for Hindu rights since his student days and that he was detained and physically abused in February 1983, while fighting for minority rights.  He claimed that, since that time, he had continued to be a leading activist for Hindu rights.  The appellant also claimed that he had been physically assaulted twice by unidentified people and that there had been attempts on his life by fundamentalist Muslims. 

18                  The Tribunal accepted that the appellant was a student political leader and that he was detained and abused by the police in 1983.  The Tribunal was also prepared to accept that the appellant’s family, like many Hindus in Bangladesh, suffered material losses in the 1960s, 1970s and early 1990s.  However, the Tribunal found no evidence that state sanctioned seizure of the property of Hindus was continuing and was not satisfied that any harm would befall the appellant in the reasonably foreseeable future if he returned to Bangladesh. 

19                  In the course of his oral evidence before the Tribunal, the appellant said that, when in Bangladesh, he had endeavoured to obtain evidence of conduct motivated by anti-Hindu sentiments and that he had done so in his role as a social welfare worker for an organisation based in Dhaka, which he referred to as ‘the Minority Welfare Organisation’.  He said that the organisation was based in the Vhikhary Geor Akrah temple, in Sutrapur, Dhaka.  The appellant said that he had tried to gain documentation of property seizures but the people involved were afraid. 

20                  Following that evidence, the Tribunal wrote to the Australian High Commission in Bangladesh, seeking information about the Vhikhary Geor Akrah temple.  The High Commission responded on 8 April 2003.  The Tribunal then wrote to the appellant by letter dated 9 April 2003.  The letter was signed on behalf of the District Registrar of the Tribunal and relevantly said as follows:

‘The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa. 

The information is as follows:

On the basis of evidence supplied by you at the hearing, the Tribunal asked the following questions of the Australian High Commission in Bangladesh:

A.         DOES THE VHIKHARY GEOR AKRAH TEMPLE EXIST, SUTRAPUR EXIST?

B.         IS THE MINORITY (HINDU) WELFARE ORGANISATION BASED THERE?

C.        DOES THIS ORGANISATION KNOW [SZEPZ]?

On 8 April 2003 the High Commission provided the following information:

A)  THERE IS NO TEMPLE IN THE SUTRAPURA AREA CALLED THE VHIKHARY GEOR AKRAH TEMPLE.  HOWEVER, IN THE SUTRAPURA AREA, A TEMPLE CALLED THE SHREE SHREE BIHARILAL GEOR AKHRA [sic] TEMPLE DOES EXIST.

B)  THERE IS NO ORGANISATION CALLED THE MINORITY (HINDU) WELFARE ORGANISATION.  AN ORGANISATION KNOWN AS THE HINDU WELFARE TRUST EXISTS, BUT IN NAME ONLY.  IT IS NOT ACTIVE DUE TO LACK OF FUNDING.

C)  THE HINDU WELFARE TRUST HAS NO KNOWLEDGE OF [SZEPZ].

This information is relevant because the Tribunal finds that this information is evidence that your claims have been fabricated for the purposes of your application for a protection visa.

You are invited to comment on this information.  Your comments are to be in writing and in English.  They are to be received at the Tribunal by 2 May 2003.’ [Original emphasis]

21                  By letter of 30 April 2003, the appellant’s migration agent submitted a statutory declaration by the appellant addressing the specific information provided by the High Commission.  In the statutory declaration, the appellant suggested that the people spoken to by the High Commission would have been afraid to identify him. 

22                  The Tribunal found unconvincing, and it did not accept, the appellant’s explanation that the people spoken to by the High Commission in Dhaka would have been afraid to identify the appellant.  The independent evidence accepted by the Tribunal did not indicate that such a level of intimidation of people associated with temples and Hindu associations occurs in Bangladesh.  Accordingly, the Tribunal was not satisfied that the appellant had continued to pursue minority rights after his student days and concluded that the appellant is not a person to whom Australia has protection obligations. 

23                  The appellant has not suggested that there was a failure to comply with s 424A in relation to the First Decision. 

THE SECOND DECISION

24                  In its reasons for the Second Decision, the Tribunal, differently constituted, also referred to the information received from the High Commission.  It is clear from those reasons that that information was part of the reason for affirming the delegate’s decision.  However, no further written steps were taken, prior to the making of the Second Decision, to give the appellant, once more, particulars of the information received earlier from the High Commission or to invite the appellant to comment on that information (cf SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162).

THE REASONS OF THE PRIMARY JUDGE

25                  The primary judge considered that, even though there was no evidence of a direction by the principal member of the Tribunal under s 422, the proceeding before the Tribunal after the Consent Orders remained the same particular review as had been commenced when the appellant first applied to the Tribunal for review of the delegate’s decision.  His Honour held that the effect of the Consent Orders was to require or justify a direction reconstituting the Tribunal under s 422 and inferred, on the basis of a presumption of regularity, that a direction had been given under s 422 whereby another member of the Tribunal was appointed to constitute the Tribunal for the purposes of the review.  Accordingly, so his Honour held, by force of s 422(2), the second member of the Tribunal was authorised to continue the review and to exercise his discretion to have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.

26                  The primary judge also considered there was nothing in the language of s 424A that required that the actual person who gave the particulars had to be the person constituting the Tribunal at any particular time in the course of the reviewed proceeding.  In particular, his Honour considered that there was no express provision that the person who was to give the information was the last person who constituted the Tribunal at the time when the operative decision was made, namely, the Second Decision.

THE ISSUE ON THE APPEAL

27                  The ground of appeal is that the primary judge erred in construing s 424A of the Act as permitting the giving of notice, under s 424A for the purposes of the first decision, as being compliance with s 424A for the purposes of the later review by the Tribunal of the delegate’s decision.  The appellant contends that there was a failure to comply with s 424A(1) on the part of the Tribunal in making the second decision, since the information received from the High Commission was part of the reason for the second decision, but was not given to the appellant again after the making of the Consent Orders.

THE EFFECT OF THE CONSENT ORDERS

28                  The intent of the parties, in asking the Federal Magistrates Court to make the Consent Orders, is not entirely clear.  To order that ‘the application be allowed’ may signify an intention that all of the orders claimed in the originating application were to be made.  However, an examination of those orders indicates that that was not the intention.  The prayers for relief in the application in question were as follows:

‘On the grounds stated in my accompanying affidavit are as follows:

1.         A writ of Prohibition preventing the First Respondent or any officers in his department from taking any steps pursuant to the said decision.

2.         An Injunction preventing the First Respondent or any officers in his department from taking any steps pursuant to the said decision;

3.         A writ of Certiorari quashing the said decision;

4.         A writ of Mandamus that the Second Respondent (Tribunal) re-determine the applicant’s application for a Protection Visa in accordance with law;

5.         An order that the First Respondent pay the applicant’s costs of these proceedings; and

6.         Such further other orders as to the Court seems fit.’

29                  The second of the Consent Orders overlaps with prayer 4 above, and the third of the Consent Orders overlaps with prayer 5 above.  On the other hand, none of the Consent Orders purports to quash or set aside the first decision of the Tribunal.  Nevertheless, the second of the Consent Orders, requiring the matter to be remitted to the Tribunal for reconsideration according to law, clearly assumes that first decision will no longer be operative.  Thus, it is tolerably clear that the parties were intending that the Consent Orders would have the effect of quashing or setting aside the first decision of the Tribunal. 

THE RECONSTITUTION OF THE TRIBUNAL

30                  It is by no means clear that the Federal Magistrates Court had power or jurisdiction to direct that the Tribunal be constituted differently for the purpose of reconsidering the appellant’s application for review of the delegate’s decision.  As indicated above, the constitution of the Tribunal is a matter for the Principal Member.  However, there is no express power for the Principal Member to reconstitute the Tribunal, except as provided in ss 422 and 422A.  Of course, if the reconstitution of the Tribunal, following the Consent Orders, could be shown to have been carried out pursuant to the powers conferred by s 422 or s 422A, the question in issue in the appeal would not arise, having regard to the provisions of those sections briefly described above. 

31                  The Minister contends that the reconstitution must be taken to have taken place pursuant to s 422.  She says that, having regard to the terms of the second of the Consent Orders, the member who constituted the Tribunal for the purposes of the review up to the making of the First Decision was not available for the purpose of any further, or any continuation of, the review at any place, irrespective of where such review may be conducted.  The Minister does not suggest that the prerequisites of s 422A(2) had been satisfied. 

32                  The appellant, on the other hand, contends that the particular review that led to the First Decision has come to an end and that the effect of the second of the Consent Orders is to require a second particular review to be undertaken by the Tribunal.  On that analysis, s 421 was enlivened once again, such that the Principal Member was required to give a written direction about who was to constitute the Tribunal for the purposes of that second particular review. 

33                  There is no specific power conferred upon a court to direct how the Tribunal is to be constituted following the quashing or setting aside of a decision.  That is not surprising, having regard to the provisions of s 474 of the Act.  That section provides that a decision of an administrative character made by the Tribunal under the Act:

• is final and conclusive,
• must not be challenged, appealed against, reviewed, quashed or called in question in any court, and

·        is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

The Second Decision was clearly an administrative decision.  However, the ultimate question in the appeal is whether, on the ground advanced by the appellant, the Second Decision was not a decision made under the Act.  It was not a decision made under the Act if it was affected by jurisdictional error.  Failure to comply with s 424A is jurisdictional error.

34                  Section 474 might be contrasted with the former Part 8 of the Act, which conferred an express statutory right of review in respect of certain decisions of the Tribunal.  Section 481, in its former guise, authorised the Court to make, amongst others, the following orders:

• an order affirming quashing or setting aside the decision of the Tribunal,
• an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit,
• an order directing any of the parties to do, or refrain from doing, any act or thing, the doing, or the refraining of the doing, of which the Court considers necessary to do justice between the parties.

35                  The power, on referring a matter to the Tribunal, to give such directions as the Court thinks fit, did not include a power to give a direction as to how the Tribunal should be constituted.  To the extent that the Court had such a power, it arose under the rubric of directing the parties to do what the Court considered necessary to do justice between the parties.  Thus, for example, where a particular member exhibited bias, it would be necessary to give a direction that the Tribunal not be constituted by that member, in order to do justice between the parties.  Under the former regime, when a decision of the Tribunal was quashed or set aside, the Tribunal was obliged to undertake a further review of the delegate’s decision.  The Tribunal’s decision, upon that review, was to be made on the basis of the facts as they appeared in the course of that further review (see Wang at 525).  Whether any findings from the first review would be preserved would entirely depend upon the view formed by the Tribunal in conducting the second review.  On that second review, the visa applicant could be expected to appear to give evidence and present arguments as contemplated by the provisions of Part 7 (see Wang at 540). 

36                  Under the present regime, however, there must be real doubt as to whether the Federal Magistrates Court could direct how the Tribunal be constituted, having regard to the express power conferred upon the Principal Member by s 420.  Even an express statutory power to give directions might not override the provisions of s 420 (see Wang at 529-532).  Whether or not the Federal Magistrates Court had power to make the second order in those terms, the Tribunal was in fact reconstituted.  No question has been raised concerning the validity of the reconstitution of the Tribunal.  Rather, the appellant says that there was a different review from that which was conducted prior to the First Decision.

OPERATION OF SECTION 424A IN THE PRESENT CASE

37                  The appellant contends that, when s 424A refers to the Tribunal giving information, it must be construed as referring to the member by whom the Tribunal is constituted for the purpose of conducting the particular review.  He says that, since, following the Consent Orders, a second review was commenced by the Tribunal, constituted by a different member, the information must be given by that member.  He argued that it is not sufficient that the information had already been given to the appellant. 

38                  Upon the making of the First Decision, the review of the delegate’s decision undertaken pursuant to s 414(1) was at an end.  Assuming the effect of the Consent Orders was to quash or set aside the First Decision, it was incumbent upon the Tribunal to embark upon a review of the delegate’s decision according to law.  It was a review by the Tribunal that was required, not a review by a particular member of the Tribunal.  It was the decision of the Tribunal that was set aside, not the decision of a particular member of the Tribunal (see Wang at 529). 

39                  In any event, when ss 421, 422 and 422A refer to ‘a particular review’, they identify the review initiated under s 414(1) and culminating in a decision in accordance with s 430, being the review that a particular person, namely the applicant for review, has initiated in respect of an RRT-Reviewable Decision.  The expression does not depend upon the identity of the particular member constituting the Tribunal.  Rather, it refers to the function of the Tribunal to review a decision.  Until the Tribunal has made a valid decision on the review that has been initiated by a valid application under s 414, it has a duty to perform that particular review.  An invalid decision by the Tribunal is no decision at all but it does not follow that all steps and procedures taken in arriving at that invalid decision are themselves invalid.  The Tribunal still has before it the materials that were obtained when the decision that had been set aside was made. 

40                  Ultimately, the question raised on the appeal turns on the proper construction of s 424A(1)(a).  That section requires the Tribunal to give information to an applicant, to ensure that the applicant understands why the information is relevant to the review and to invite the applicant to comment on the information.  However, that requirement is limited to information ‘that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review’.  In so far as that provision refers to a state of mind or mental process, it must be taken to refer to the state of mind or mental process of the particular member constituting the Tribunal for the purposes of the review. 

41                  Thus, the provision contemplates that a particular member who constitutes the Tribunal for a particular review has turned his or her mind to the question of whether particular information would be the reason, or part of the reason, for deciding to affirm the delegate’s decision.  If that prerequisite is not satisfied, then there will be jurisdictional error, unless the Tribunal has given the review applicant particulars of the information, has ensured that the review applicant understands why the information is relevant to the review and has invited the applicant to comment on the information. 

42                  However, the information and invitation must be given by the Tribunal by one of the methods described in s 441A.  All of these methods contemplate that the information and invitation can be given by the Registrar or by an officer of the Tribunal or by a person authorised in writing by the Registrar, in addition to a member of the Tribunal.  Further, there is nothing in the scheme of Part 7 of the Act to suggest that the steps required by s 424A(1), as explained by s 424A(2), must be taken at any particular time.  So long as an applicant has been given information that the member of the Tribunal who is to make the decision considers would the reason, or part of the reason, for affirming the decision under review and so long as the applicant understands why that information is relevant and has been invited to comment on the information, s 424A will be satisfied. 

43                  Before the Second Decision, the appellant had, in fact, been given particulars of the relevant information, consisting of the response of the High Commission, and was invited to comment on it.  That was done by the letter of 9 April 2003.  Indeed, as indicated above, the appellant commented on the information.  The appellant has not suggested that he did not understand why the information was relevant to the Tribunal’s review of the delegate’s decision.  Accordingly, there was no failure to comply with s 424A in relation to the making of the Second Decision.  In the light of that conclusion, it is not necessary to determine whether or not the Tribunal was reconstituted under s 422. 

CONCLUSION

44                  The appellant has failed to establish jurisdictional error in relation to the Second Decision.  That is the conclusion reached by the primary judge in making the orders appealed from.  The appeal should be dismissed with costs. 

Associate:

Dated:              30 June 2006