FEDERAL COURT OF AUSTRALIA

BBS15 v Minister for Immigration and Border Protection [2017] FCAFC 61

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders of the Federal Circuit Court of Australia dated 16 August 2016 are set aside and in lieu thereof the decision of the Administrative Appeals Tribunal made on 20 May 2015 is quashed.

3.    The Appellant have his costs in this Court and in the Court below, payable by the First Respondent, as agreed or assessed.

4.    The application for review lodged on 21 August 2013 be remitted to the Administrative Appeals Tribunal for determination according to law.

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

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal of the Federal Circuit Court of Australia (FCCA) decision in BBS15 v Minister for Immigration and Border Protection [2016] FCCA 2117 (BBS15). The FCCA affirmed the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), made on 20 May 2015 not to grant the Appellant a Protection (Class XA) visa.

Background to this appeal

2    The single issue in this appeal is whether the FCCA was correct to hold that the Tribunal had not fallen into jurisdictional error when it made an adverse finding regarding the genuineness of the Appellant’s conversion to Christianity.

3    The Tribunal had relied on the fact that the Appellant had not provided any material to corroborate his church attendance, however, there was uncontested evidence before the primary judge that a supporting letter from the Appellant’s Pastor had been received by an officer of the Department of Immigration and Border Protection (the Department) as part of his application for a visa but, because of an administrative error, it was not provided by the Secretary of the Department (the Secretary) to the Tribunal with the review documents.

Ground 4: Judicial review

4    In the FCCA the Appellant, represented by Ms K Madgwick, advanced as a ground of judicial review (Ground 4) the contention that the Tribunal had failed to provide him with a reasonable opportunity to be heard in accordance with ss 422B and 425 of the Migration Act 1958 (the Act). That proposition was particularised to assert that the Tribunal, by representations made to him, had caused him to understand that the documents he had provided to the Department in support of his visa application and relevant to his review would be obtained by the Tribunal and then considered. He had relied on that understanding. In consequence he had conducted his part of the review on a false premise.

5    The Appellant submitted he had taken part in the review on the basis that a letter from his Pastor, Mr Payne, dated 10 June 2013 (the Pastor’s Letter) had been before the Tribunal when that was not the fact. The Tribunal, albeit inadvertently, had misled him to his disadvantage. The Appellant had thereby been deprived of the opportunity to controvert, by evidence and submissions, the adverse inference which had been drawn by the Tribunal. The process of review had thereby miscarried. Accordingly the primary judge had erred in failing to conclude that the Tribunal had fallen into jurisdictional error by denying him the hearing which s 425 of the Act required it to undertake.

6    It was submitted by counsel for the Appellant, Ms Sharp and Ms Madgwick, for that reason the appeal should be allowed. We agree.

7    There was evidence before the FCCA, not referred to by the primary judge, capable of supporting the following conclusions, as discussed below, that:

(a)    the Pastor’s Letter had been sent to and received by the Department by the Appellant’s Migration Agent, Ms Avery-Williams, as part of the Appellant’s visa application;

(b)    the Tribunal had represented to the Appellant that it would ask the Department to give to the Tribunal the documents relevant to his case;

(c)    Ms Avery-Williams had told the Appellant that she had provided the Pastor’s Letter to the Department;

(d)    the Appellant had participated in the hearing in the Tribunal on the understanding that the document Ms Avery-Williams had sent to the Department would be before the Tribunal;

(e)    that understanding had been induced by the Tribunal’s representations communicated to him by Ms Avery-Williams;

(f)    an adverse conclusion regarding the Appellant’s credibility had been drawn by the Tribunal by reason of his failure to provide documentary corroboration of the genuineness of his church attendance and participation in church activities; and

(g)    the adverse finding could not have been made by the Tribunal had the Pastor’s Letter been before it.

Given those circumstances, the decisions of the High Court of Australia in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82; 75 ALJR 52; 176 ALR 219 (Aala) and Muin v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966; 190 ALR 601; 68 ALD 257 (Muin) require the conclusion that the Tribunal thereby fell into jurisdictional error.

8    The decision in Aala also establishes that relief in consequence of jurisdictional error is discretionary.

9    In this instance there is no relevant discretionary reason not to allow the appeal.

10    The Appellant’s uncontroverted evidence before the primary judge was that, had he been aware of the true circumstances he would have made arrangements to ensure that the Pastor’s letter was made available to the Tribunal to corroborate the genuineness of his belief and, particularly, his attendance at church and his involvement in church activities. The state of the Appellant’s belief had been a critical issue in the Tribunal. It was not open to the FCCA, nor is it open to this Court, to discount the possibility that jurisdictional error could have deprived the Appellant of the possibility of a successful outcome.

11    Accordingly the appeal must be allowed. Our discussion of the evidence and our reasons for rejecting a number of specific submissions made by the First Respondent to the contrary are detailed below.

Background facts

12    The Appellant is a citizen of Iran. On 24 December 2012 he applied for a Protection (Class XA) visa in accordance with s 65 of the Act.

13    Among the claims the Appellant made for the grant of that visa was his conversion to Christianity. He claimed, because of his beliefs, to have a well-founded fear of being persecuted if he were required to return to his country of nationality.

14    The application process involved the Appellant being asked to attend an interview with Mr Waring, an officer of the Department, in Perth on 16 May 2013 (the interview).

15    The Appellant obtained the assistance of Ms Avery-Williams, a solicitor from the Refugee Advice and Casework Service (RACS). She accompanied him to the interview and assisted him prepare his post-interview submissions.

16    There was unchallenged evidence before the primary judge that following the interview Ms Avery-Williams asked the Appellant if there was anyone from his church who could provide a letter to support his account of his conversion to Christianity. The Appellant had approached his Pastor, Mr Payne, to ask him whether he would be prepared to provide such a letter. Mr Payne agreed.

17    The original of the Pastor’s Letter was given to the Appellant and a copy sent to Ms Avery-Williams.

18    That letter was in the following terms:

My name is Thomas Payne and I am the senior Pastor at The Potters House Christian Church in Beechboro WA. I am writing on behalf of [BBS15]. [BBS15] has been attending our church since December of 2012. During that month he made a profession of faith in Jesus Christ and was also Baptized in water. Since that time [BBS15] has been attending our English class, as well as our regular worship services, and community outreach events. In addition to him attending our events on the average of twice weekly, [BBS15] has demonstrated a sincere effort to integrate into Australian Society. Please feel free to contact me if I can be of any further assistance.

19    Ms Avery-Williams forwarded the Pastor’s Letter by email to the Department. In evidence before the primary judge was an email advising “that the Department received the email sent by Ms Amelia Avery-Williams to Mr Ian Waring on 11 June 2013”.

20    Mr Waring had been the officer of the Department who had conducted the interview with the Appellant in Perth. The transcript of the Appellant’s interview with Mr Waring was before the Court below.

21    Ms Avery-Williams informed the Appellant that she had forwarded the Pastor’s Letter to the Department of Immigration and Citizenship (DIAC) as part of his file.

22    On 8 August 2013 a Delegate of the Minister, Mr Michael Hutchinson, decided to refuse the Appellant the Protection (Class XA) visa.

23    The same day the Department wrote to advise the Appellant of that decision and to inform him of his right to seek review in the Tribunal. He was told that further information about merits review was available on the Tribunal website and ‘in the enclosed brochure R10 - Refugee Review Tribunal’.

24    That brochure, published by the Tribunal, was before his Honour. It contained information about applying for a review and advice regarding what to expect should an application for review be made:

The tribunal will send you a letter confirming that it has received your application and invite you to send any documents, information or other evidence you want the tribunal to consider.

The tribunal will ask the department to send us its documents relating to your case.

…

After considering the department’s documents and any further information you have given the tribunal, the tribunal will usually invite you to attend a hearing.

25    The Appellant was assisted by Ms Avery-Williams to prepare his application for review. The Tribunal received the application on 21 August 2013.

26    On 22 August 2013 the Tribunal wrote to the Appellant care of his authorised recipient to acknowledge his application. The Tribunal advised the authorised recipient that:

By providing you with these documents, the tribunal is taken to have given the documents to the applicant. You should ensure that the applicant is informed of this letter as soon as possible.

(Emphasis original)

27    A letter directly addressed to the Appellant was included with that correspondence. It informed the Appellant:

We have requested that the Department of Immigration and Citizenship (the department) provide us with all documents and files which they consider to be relevant to your application.

28    On 28 October 2014 the Tribunal again wrote to the Appellant. It informed him that it had considered the materials before it but had been unable to make a favourable decision on that information alone. The Tribunal invited the Appellant to appear at a hearing scheduled for 3 December 2014 to give evidence and present arguments relating to the issues arising in his case. The letter requested the Appellant to:

Please use this form or attach additional information if you have any requests or any new information which you wish the Tribunal to consider.

(Emphasis added)

29    At the commencement of his hearing the Appellant was informed by the Tribunal that the Tribunal’s job was to conduct an independent review and that it would be ‘undertaking a new examination of your application’. The Appellant was informed it was the task of the Tribunal ‘to examine all the evidence and to make a fresh decision’.

30    The Tribunal examined the Appellant regarding his various claims. As is relevant he was asked what had made him convert to Christianity and he responded:

At the beginning I just met a group of people in the city and they invited me to English classes which was held in a church. I participated in those classes and got familiar with those communities. I participated in all of their prayers. And I was surprised with the relaxation and it was very comfortable for me all of those moments I was with them. And also nothing was compulsory they didn’t ask me why I drink alcohol. But I was told that I would find out finally that I was wrong by drinking. And the signs after that for me, one of them is that I stopped smoking and another one I stopped drinking. And I don’t lie. So those sort of things happened a lot for me in the meantime.

31    He was asked what his favourite bible story was:

My favourite story is there was a woman who committed six relationships with someone and she was arrested, they brought her to Jesus and they told her that it was in the same condition that women must be killed. But Jesus said that ok anyone of you who has not done any crime can throw stone towards her. Jesus was saying that his face was down and when he just brought over his face again, he saw that no-one was there, those people. Jesus asked the woman where the others where they gone they woman said that the others had gone and nobody throwed stone towards me. So he said that they couldn’t punish you and I couldn’t punish you as well just don’t commit a crime again.

32    The Appellant told the Tribunal that he had been attending church regularly since he had been baptised in January 2013 and that he had read the bible in “Persian, Farsi” but accepted there were many things in the Bible he still could not understand. He was then asked about his knowledge of Christmas and Easter:

My knowledge is limited but I know that Jesus was born without his mother have any relationship with anyone just it was just an order or something from the god. My knowledge is very limited and I do not like to add something and to guess or to put something from myself.

What is the significance of Easter?

I don’t know.

33    He was asked about his baptism ceremony:

I was very interested in being baptised at the very first because I was interested in the church. A pastor told me that I should go to the church for a while and I need to show my interesting and one day finally I was told that I was eligible to be baptised.

…

We were six, seven or eight people. We went to a room and we wore white shirt and white trousers. There was small pool like with the lid and just for baptise they just open the lid so while it was open we went to the water one by one from the back but there were two people in the water one of the them was with the bible on his hand and the other one put his hand on our head and just prayed and they just put my head underwater for a few seconds and then lift my head up out of the water and the people who were there they just clapped for us and prayed for us.

34    He was asked about the significance of baptism:

It’s like tradition ceremony if someone wants to go to the place for baptism they need to be clear, they need to be innocent. And whenever, if someone does a crime being eligible to confess and to be baptise again. The meaning of that is just to cleaning your soul.

And why do you clean your soul?

To make a stronger relationship with god.

35    The Appellant was then asked about his church:

Did you ask anybody from the church to come along today or to give you anything to corroborate your evidence in respect to your Christianity claim?

I didn’t think that it was required to ask someone from the church to come along with me and I thought it might be ugly or it might be a bad thing to ask someone to come with me.

Why did you think it would be a bad thing?

Because someone either is faithful or is not and they don’t need anyone to support them. And also in the book it has been written if someone believes in god so they don’t need to be worried for anything or to be scared of anything.

…

How many people usually attend the church services?

I don’t know exactly but I think it might be like 300 people.

…

Do you know the pastor?

Yes, I do.

Do you often speak to him?

Yes, I do.

How often would you speak to him?

Each time we are going there he welcomes us and if we have a question he is happy to answer us. And whoever wants to do something or needs something goes and ask him and…

What do you mean need something, what sort of things do you ask him?

I mean like previously I lost my job I went to him and I let him know about the situation and he told me just I needed to pray and to pray.

36    On 22 May 2015 the Tribunal affirmed the decision under review not to grant the Appellant a Protection (Class XA) visa.

37    The Tribunal stated in its reasons dated 15 May 2005, at [45]:

Apart from the Certificate of Baptism, no supporting letters confirming his attendance and participation in Church or other Christian activities conducted by the Church were provided.

38    The Tribunal concluded, at [51]:

After considering all the evidence in this case, and for the reasons discussed, the Tribunal does not accept the applicant has abandoned Islam or would be imputed to have done so, or that he is a genuine convert to Christianity, or would be imputed as being so.

39    The Tribunal reasoned, at [52], that because the Appellant was “not a genuine Christian convert” there would be no chance of him being “persecuted for reasons of Christian beliefs” if he were to return to Iran.

The application for judicial review

40    The Appellant sought judicial review of the Tribunal’s decision in the FCCA.

41    Ground 4 of the Appellant’s further amended application was that:

…the Tribunal failed to provide the applicant with a reasonable opportunity to be heard in accordance with s 422B and 425 of the Act.

42    The particulars of that ground were:

                Particulars

The applicant had provided the Pastor’s Letter to the Minister on 11 June 2013.

The Tribunal represented to the applicant in its letter of Acknowledgement of Application dated 22 August 2013 that the Tribunal would obtain the documents relating to the applicant’s case from the Minister.

The Tribunal represented to the applicant at the hearing that it would consider all the evidence and make a fresh determination.

On that basis, the applicant was misled into believing that the Pastor’s Letter was before the Tribunal and he refrained from taking up an opportunity to provide a further copy of the Pastor's Letter or to otherwise be heard in relation to the Pastor’s Letter.

At paragraph [45] of the Tribunal Decision, the Tribunal states that no supporting letters were provided confirming the applicant’s attendance at church or his participation in the church or other Christian activities such that it should be inferred that the Pastor’s Letter was not before the Tribunal.

43    The Appellant contended before the primary judge, inter alia, that the Tribunal, while not responsible for the circumstance and unaware of it, had led him to believe that the Pastor’s Letter was before the Tribunal and would be taken into account by it.

44    It is now common ground that although the Appellant’s documentary evidence, relevant to his conversion to Christianity, in the possession of the Department (his certificate of Baptism) had been given to the Tribunal by the Secretary, the Pastor’s Letter had not been.

45    An explanation for that omission was given by counsel for the Minister in the proceedings before his Honour when the issue of costs arose:

…on any view – and certainly the view which I encourage the court to take – there was an administrative error by the department where a document was delivered to the department; it was relevant – I say not crucial, but it was relevant to the claims, and on my submission, it was not provided to the tribunal. That’s a matter which doesn’t reflect well on my client and may bear upon the question of whether it was reasonable to commence the litigation.

46    In the FCCA the Appellant put his judicial review case on alternative bases. Ground 3 was posited on the basis that the Tribunal had had the Pastor’s Letter before it and that the Tribunal had committed an error of law by failing to take it into account. Alternatively, Ground 4 was that the Pastor’s Letter had not been before the Tribunal and for that reason the Appellant had been misled.

47    Submissions regarding Ground 4 were made by counsel for the Appellant in the FCCA:

MS MADGWICK:    Then as to paragraph 4 [sic], we say that the applicant says that if that document wasn’t before the tribunal, it was not something of which he was aware, and if he had been aware, he would have raised; he would have taken certain actions to be heard on that point, and that’s set out in his affidavit - in the applicant’s affidavit of 20 November 2015. My friend---

HIS HONOUR:    What was the basis on which he had a belief it was before them?

MS MADGWICK:     The basis for the belief is set out in my written submissions. There were references in the materials provided by the tribunal, and then again a reference during the hearing to the tribunal looking at all of the evidence and making a decision.

HIS HONOUR:        Yes. But there’s no reference by the applicant in relation to the hearing before the tribunal as to why he believed the letter was there, other than referring back to the communications he had had concerning the delegate. He didn't say during the hearing, “Hold on. I’ve got a letter from the pastor that supports my conversion.” It wasn’t put in his submissions. There’s no identification of the reason why he believed it would be before the tribunal.

MS MADGWICK:    Your Honour, I would refer to paragraphs 14 - sorry, 15 of BBS15’s affidavit where he gets a letter and he understood it has been forwarded to the department.

HIS HONOUR:        Yes. But in relation to the review hearing, all he says was:

As … had told that the pastor's letter had been provided to the department, I understood the pastor’s letter would be part of my file for the RRT hearing.

There’s then no reference to it before the tribunal. There’s nothing conveyed to the tribunal that there’s such a letter that he places weight and significance on. He knows that there’s an issue relating to Christianity. It was well open to him to seek to adduce evidence in relation to the pastor or others before the tribunal, but anyway you maintain that the inference should be drawn that the letter was provided to the tribunal. Is there anything else you want to say in relation to ground 4?

MS MADGWICK:    So no, ground 4 is saying in the event that it was not provided, the applicant went to the hearing on the understanding that it was already before the hearing, and had he known that it was not already before the hearing, he would have sought to be heard on that point. That’s not saying - I’m not raising a section 183 point that says there has been some failure by the department to do something. It’s really saying similar to – more along the lines of the reason of the court in SZFDE that the section 425 hearing has not – ability to be heard has not really been properly exercised because he thought he was having a hearing on the basis that materials including that letter were before the tribunal and, in fact, the hearing proceeded on a different basis, that those materials were not there, and he was not aware of that fact.

HIS HONOUR:    Yes. Anything else you want to say on ground 4?

MS MADGWICK:    My friend says that the cases referred to in my submission, WZARH and Muin deal with really the procedural fairness/natural justice context, rather than the context that we’re in here where we have the prohibitive clauses in the Migration Act. In relation to that, it’s not a question here – we’re not raising this in terms of that there has been an application or misapplication of the prohibitive clauses immediately following section 422B. It’s really looking at the terms of section 425, and in light of the just and fair requirement in section 442B [sic]. In my submission, there’s no reason in that context as to just the ability to have what the hearing actually is, that WZARH cannot apply here, notwithstanding the prohibitive clauses, and I note the comments of the court in SZFDE at paragraph 31 that:

The importance of being invited to appear and give evidence is emphasised by     422B.

Would it assist the court to have a copy of this judgment while I read this?

HIS HONOUR:    No. I’m familiar with the decision. Thank you.

MS MADGWICK:    Thank you:

An effective subversion of the operation of section 425 also subverts the observance by the tribunal of its obligation to accord procedural fairness to applicants for review.

And it’s on that basis that we raise it, not in terms of procedural fairness at large, and I apologise if my submissions in not being more narrowly focused on that point have caused any confusion.

48    Counsel for the First Respondent below, Mr Knowles, was not called on in response.

The decision in the FCCA

49    The primary judge dismissed the Appellant’s contentions. His Honour’s brief reasons in BBS15 intermingle a discussion of Grounds 3 and 4. As relevant to these proceedings the primary judge’s findings and reasons are as follows, at [30] – [35]:

In relation to ground 3, there was some dispute as to whether or not a particular letter from a pastor, dated 11 June 2013, was before the Tribunal. On the evidence before the Court, the Court is satisfied that that letter was not before the Tribunal. No reference was made to the letter from the pastor in the submissions advanced on behalf of the applicant to the Tribunal. No reference was made by the applicant of that letter at the Tribunal hearing.

The Tribunal noted that it had not received any supporting material in relation to the applicant’s attendance and participation in church activities. The applicant was on notice of the issue of his conversion to Christianity from the hearing before the delegate.

I find that the letter dated 11 June 2013 was not material that was before the Tribunal…

In relation to ground 4, the proposition that the Tribunal’s failure to consider the Pastor’s Letter meant that the applicant was misled, is without substance. The applicant clearly was on notice of the nature of the issue relating to Christianity and his conversion to Christianity. There was no basis properly identified upon which the applicant could have believed that his letter was, in fact, before the Tribunal. Nor would the applicant have failed to identify and mention the letter if it had a significance to the applicant in relation to the conduct of the hearing.

On the material before the Court, the applicant had a genuine hearing and a meaningful opportunity to present his claims and evidence. Ground 3 is without any merit. Ground 3 fails to make out any jurisdictional error.

Ground 4 is also without substance. There was no contravention of s.425 of the Act by the Tribunal. Nor was there any departure from the principles in s.422B of the Act by the Tribunal in its conduct of the hearing. The applicant had a fair and just hearing before the Tribunal and, on the material before the Court, the Tribunal conducted its review in accordance with the statutory regime. Ground 4 fails to make out any jurisdictional error.

50    The issue now before this Court is whether that analysis is sound.

51    Save as to the conclusionary observations at [33] of the reasons, his Honour did not address the specific evidence relating to Ground 4. No findings, relevant to the matters we discuss below, were made.

Consideration and determination

Did the Appellant send the Pastor’s Letter to the Minister’s Delegate?

52    Counsel for the First Respondent, Mr Johnson SC and Mr Swan, disputed that the evidence in the FCCA could justify a finding that the Appellant had sent the Pastor’s Letter to the Department. They submit that the Appellant’s evidence did “not indicate that he personally provided the Pastor’s Letter to anyone’ (written submissions at [4]). We reject that submission.

53    The Appellant’s uncontested evidence before the primary judge was that he had had assistance through the Immigration Advice and Application Assistance Scheme to make his application for a Protection (Class XA) visa. Ms Avery-Williams assisted the Appellant to prepare for the interview, accompanied him on 16 May 2013, and assisted with his post-interview submissions. The Pastor’s Letter was provided by her to Mr Waring. She informed the Appellant that she had done so.

54    We are satisfied on the evidence that when Ms Avery-Williams sent the Pastor’s Letter to Mr Waring, she was acting as the Appellant’s agent, to his knowledge and with his express authority. There is no suggestion that her doing so was inconsistent with any provision of the Act or any subordinate legislation. We are accordingly satisfied that the Appellant sent the Pastor’s Letter to the Department.

Was the Pastor’s Letter a document that should have been given to the Tribunal?

55    It was submitted for the First Respondent that there was no evidence that the Pastor’s Letter had been among the documents before the Minister’s Delegate and the Delegate had not referred to it (written submissions at [4]).

56    If it were necessary to decide, we would conclude that the Pastor’s Letter was at least constructively before the Delegate.

57    The evidence before the FCCA was that the Pastor’s Letter had been received by the Department on 11 June 2013. It self-evidently had been provided as post-interview corroboration, from an independent and disinterested person, of the Appellant’s evidence during his interview. It was clearly sent to avoid his evidence being viewed as implausible self-serving assertions regarding his claimed conversion to Christianity.

58    The Pastor’s Letter was received in ample time for it to have been placed before the Delegate. The Delegate’s decision was made on 8 August 2013.

59    No submission was put by the First Respondent, nor could be plausibly contended, that there was a lawful basis for the Pastor’s Letter not to have been placed before the Delegate. Section 55 of the Act provides that until the Minister has made a decision to grant or refuse to grant a visa an applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.

60    However whether the Pastor’s Letter was or was not before the Delegate, constructively or otherwise, is ultimately immaterial to the resolution of the issue in this appeal. Nothing in this appeal turns on whether the Minister or the Delegate committed an error of law in refusing the visa: when an application for review is made to the Tribunal, the Tribunal hears and determines the application denovo. If a fair hearing was not provided by the Delegate but on review a fair hearing was provided by the Tribunal that is the end of the matter.

61    Nor does the answer to that question determine whether the document should have been before the Tribunal.

62    To facilitate the Tribunal’s conduct of a review, s 418(3) of the Act requires:

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.

63    We reject the First Respondent’s submission that the FCCA was entitled to proceed on the basis that the Secretary might have concluded that the Pastor’s Letter was not relevant to the Tribunal’s review and chosen not to give it to the Tribunal (written submissions at [19]). There was no finding to that effect, nor was there a basis for such a finding.

64    The Pastor’s Letter was clearly relevant. There is nothing to suggest that the Secretary misunderstood his legal duty. In the FCCA, counsel for the First Respondent, conceded that it was a relevant document. He did not dispute that it had been in the Secretary’s possession and control. It had not been given to the Tribunal as a result of an administrative error.

65    In our view the document should have been given to the Tribunal by the Secretary. The concession made before the primary judge establishes clearly that, but for that administrative error, it would have been so provided.

Did the Tribunal induce the Appellant to believe and act on a false basis that the Pastor’s Letter would be before it and considered?

66    The First Respondent’s submissions take issue, on two distinct bases, with the proposition that the evidence before the FCCA could justify a conclusion that the Tribunal, while not responsible for the circumstance and unaware of it, nonetheless misled the Appellant to believe, contrary to the fact, that the Pastor’s Letter was before the Tribunal and would be taken into account.

67    The first objection is that the evidence was insufficient to establish that the asserted representation had been made by the Tribunal to the Appellant. The First Respondent submitted that to the extent the Appellant had an understanding that the Pastor’s Letter would be before the Tribunal the evidence was that that understanding had been based on what he had been told by Ms Avery-Williams, rather than anything he had been told by the Tribunal.

68    The First Respondent’s second objection is that, whatever the Appellant’s initial understanding had been, the questions asked of him by the Tribunal put him fairly on notice that evidence to corroborate his account of his church attendance and his participation in church activities was required and that no such evidence had been before the Tribunal.

The first objection

69    The objection expressed in the First Respondent’s written submissions (at [5]) is that :

…the Appellant’s affidavit does not support a finding that the Appellant relied on the Tribunal’s letter dated 22 August 2013 (AB 113). Rather, the Appellant’s belief about the Pastor’s Letter being before the Tribunal was, he says, based on his agent’s advice. At SAB16 [19], the Appellant said “As [the agent] had told me that the Pastor’s Letter had been provided to [the Department], I understood that the Pastor’s Letter would be part of my file for the RRT hearing”.

70    That submission, in our opinion, misapprehends what can be inferred from the Appellant’s evidence. Ms Avery-Williams and the RACS were assisting the Appellant. He lacked English language skills. The primary judge had the transcript of each of the two interviews the Appellant had participated in. Both reveal that the Appellant was assisted by a translator. A non-English speaking applicant necessarily requires any letters and other communications from the Department and the Tribunal to be translated and explained. That does not convert a communication so translated and explained into an independent representation made by his or her agent.

71    As set out above, the Tribunal’s letter of 22 August 2013 was sent to the Appellant’s authorised recipient at RACS, along with a letter addressed to the Appellant. Moreover there was evidence before the primary judge that the Appellant had previously been provided with information from the Tribunal and after his visa had been refused the Department had sent him a letter enclosing a brochure from the Tribunal in which the Tribunal’s procedures had been explained.

72    In the context of a non-English speaking applicant, it is not possible to construe the Appellant’s sworn testimony as establishing that Ms Avery-Williams had given him an unauthorised assurance upon which he had unwisely relied. Any letter would need to be translated and communicated to him by a third party. The import of the Appellant’s evidence was that as Ms Avery-Williams had told him that she had sent the Pastor’s Letter to the Department what she later told him had led him to understand that the Pastor’s Letter would be before the Tribunal. Understood in context, the inference to be drawn from the Appellant’s evidence is that Ms Avery-Williams had conveyed to him the effect of what he had been advised by the Tribunal in its communication. For those reasons we reject the First Respondent’s submission (written submissions at [15]-[17]) as based on a premise not shared by this Court.

73    This Court is entitled to proceed on the basis that the Tribunal itself also had no reason to anticipate that the Appellant’s full file was not before it. Had it been otherwise we are confident that the Tribunal, so as to ensure the fairness of its proceeding, would have either itself taken steps to secure the further documents from the Secretary or advised the Appellant that certain documents he had given to the Department were absent.

74    The Tribunal, in the absence of evidence to the contrary, was entitled to assume that it had the documents sought from the Secretary who had a statutory duty to give the Tribunal every document considered relevant to the review. There is no suggestion that there was anything in the file which was given to the Tribunal to put it on notice that that duty had been imperfectly performed. Yet, unfortunately, it had been.

75    For completeness, we acknowledge, as the First Respondent submits, at [5], that the Tribunal’s letter of 22 August 2013 did not contain an express assurance that all of the documents he had given to the Department would be before the Tribunal. But the Tribunal’s communications with the Appellant created that expectation. The evidence clearly establishes that the Tribunal, without fault, had advised the Appellant that it would seek the documents relevant to his proceedings from the Department and that those documents would be considered. The natural inference to be drawn from those representations is that such documents as he had already provided would not need to be duplicated and re-submitted. That natural inference was strongly reinforced by the Tribunal’s correspondence dated 28 October 2014.

76    In consequence of an unfortunate administrative error, of which the Tribunal was unaware, the natural inference that had been conveyed by the Tribunal’s representations to the Appellant became misleading in so far as the Pastor’s Letter was concerned.

77    The evidence before the primary judge required a finding, subject to the second objection discussed below, that the Tribunal, without fault on its part, had induced the Appellant to take part in his review on the false premise that the Pastor’s Letter would be considered.

78    We reject the first objection.

The second objection

79    The second objection by the First Respondent was that “in any event the issue of whether the Appellant had corroboration from the Church of his Christianity claim was fairly raised with the Appellant” (written submissions at [5]).

80    It was submitted (at [8], [9] and [11]) :

…the Tribunal asked the Appellant (inter alia) if he had asked anyone from the Church “to give you anything to corroborate your evidence in respect to your Christianity claims” (Transcript, p21). This question was a clear sign that the Tribunal was not aware of the Pastor’s Letter. Moreover, it was clearly raising the issue of whether there was anything from the Church to corroborate the Appellant’s Christianity claim and was an indication that the Tribunal may consider such information relevant. Later on the same page of the transcript, the Tribunal also asked “Is there anything else you’d like to tell me about your conversion to Christianity?”.

These questions gave the Appellant an opportunity to draw the Tribunal’s attention to the Pastor’s Letter. Neither he nor his agent (who was also present) did so.

…

Also, the delegate’s decision put the Appellant on notice (AB 97-98) that there was an issue as to whether the Appellant had “embraced Christianity”, was “genuinely interested in Christianity” or was “a genuine, committed Christian”. In reaching his finding that the Appellant was not a “genuine Christian convert”, the delegate referred to the Certificate of Baptism from the Church that the Appellant had provided but did not refer to the Pastor’s Letter (AB 97-98). That was a sign that the delegate may not have been aware of the Pastor’s Letter, or may have thought that it was irrelevant, with the result that the Pastor’s Letter would need to be mentioned by the Appellant to the Tribunal if the Appellant was relying on it.

81    If the question referred to by the First Respondent, at [8] of the written submissions, is quoted in full with the Appellant’s response to it (see [35] above), then the submission that there was a “clear sign” that the Tribunal was not aware of the Pastor’s Letter cannot be sustained.

82    The question was asked towards the conclusion of the hearing. It was preceded by extended testing by the Tribunal of the Appellant’s understanding of the tenets of his claimed faith and by his having been asked about the facts of his baptism and his understanding of its significance.

83    It may be observed that the first question (as set out in [35] above) embraced two distinct queries; it was what is colloquially described as a ‘rolled up’ question. Rolled up questions inherently are productive of misunderstanding, so it is for that reason they are objectionable in proceedings subject to the rules of evidence. While the Tribunal is not bound by such rules the same underlying difficulty can be encountered, especially where an interpreter is required.

84    The first query contained in the question was whether the Appellant had asked anybody from the church to attend the hearing; the second was whether he had asked for anything to corroborate his evidence of his faith. The Appellant’s responses appear to relate only to the first query; evidencing his understanding of the intent of the question. The Tribunal did not pursue the second query.

85    Moreover, seeming lack of common understanding aside, there was nothing in the second query, in context, to justify it being characterised as a “clear sign that the Tribunal was not aware of the Pastor’s Letter”. To that point the principal focus of the Tribunal’s questioning of the Appellant’s asserted conversion had related to whether or not he had an understanding of the tenets of his professed Christian faith and whether his asserted belief was sincere. The second query which asked if he had anyone to corroborate his claim must be understood in that context. So understood the Appellant’s answer to the effect that if someone believes in God they don’t need anyone to support them or be worried or scared was a complete, if naïve, response to that query.

86    It will be recalled that the relevance of the Pastor’s Letter is that it addressed the Appellant’s attendance and participation in church and church society activities. In our opinion, having regard to context, there was nothing in the questioning by the Tribunal to have put the Appellant fairly on notice that those basic facts, rather than the genuineness of his claimed faith, were the subject of the query.

87    We make the same observation regarding the First Respondent’s submissions, at [11], that the Appellant was on notice by the Delegate not focussing on the Pastor’s Letter. It is to be accepted that both the Delegate and the Tribunal had focussed their attention on the issue of whether the Appellant had “embraced Christianity,” was “genuinely interested in Christianity” or was “a genuine, committed Christian” but nothing in those regards suggests that the mechanical facts relating to the Appellant’s attendance at church or participation in church related activities had been in issue.

88    Indeed, as the First Respondent submits, the Delegate may have thought the Appellant’s record of formal church attendance was not relevant to that issue. However, on that assumption, as a matter of logic, that could not be a reason for the Appellant to have been on notice that the Pastor’s Letter had not been before the Delegate or later not before the Tribunal.

89    We also note the First Respondent’s submissions, at [6]-[7] and [12], that the Tribunal’s several statements that it was very important for the Appellant to tell it everything he wanted it to know about his application had put him on notice and that he must turn his mind to the possibility that the Pastor’s Letter might not be before it. That submission cannot be accepted. The statements were inadequate to give rise to any such inference.

90    We reject the second objection.

91    In the event, whatever might have been the opinion of the Delegate, the Tribunal undoubtedly considered the Appellant’s church attendance and participation in its activities to be relevant. The finding that the Appellant was not a “genuine Christian convert” expressly relied, inter alia, on the absence of any corroboration from his Church.

Breach of section 418(3) by the Secretary

92    Section 418(3) of the Act states that it is the Secretary’s duty to provide to the Tribunal “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.”

93    It was submitted for the First Respondent that a breach of that duty does not found jurisdictional error in the Tribunal: WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103; 151 FCR 413; 232 ALR 78 (WAGP); Applicants S487/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1309 (Applicants S487/2002); SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; 191 FCR 123; 276 ALR 247; 120 ALD208 (SZOIN); Applicant S1693/2003 v Refugee Review Tribunal [2004] FCA 1512 (Applicant S1693/2003). That may be accepted, however none of the cases cited on behalf of the First Respondent involved a party being misled by a Tribunal regarding the materials before it so as to have caused them to conduct their part in a hearing to their substantive disadvantage.

94    Justice Sackville decided Applicants S487/2002 expressly on the basis that, unlike in Muin, there was nothing to show that the applicant had been misled by anything done or not done by the then Refugee Review Tribunal (at [33]). In those circumstances a breach of s 418(3) had not constituted jurisdictional error.

95    In Applicant S1693/2003 French J endorsed Sackville J’s reasoning, in Applicants S487/2002, and concluded that of itself a contravention of s 418(3) of the Act did not constitute jurisdictional error. In that case his Honour was satisfied that any failure by the Secretary to have transmitted the documents that the appellant asserted had not been given to the Tribunal would have made no difference to the outcome, ie there was no practical consequence (at [34], [42]).

96    The case of SZNZK v Minister for Immigration and Citizenship [2010] FCA 651; 115 ALD 332 (SZNZK) is not relevant. It is an application of the principle mentioned above that the Tribunal hears a matter de novo such that if a fair hearing was not provided by the Minister’s delegate but on review a fair hearing is provided by the Tribunal there can be no cause for complaint. In SZNZK a delegate of the Minister had considered and made a decision mistakenly having had regard to a statement that had been made by a different applicant. Ultimately the correct file, including the applicant’s own statement had been provided by the Secretary and considered by the Tribunal (at [23]). In those circumstances the review had cured the earlier defect.

97    WAGP involved a document thought to have been lost but later located after a search by officers of the Department (see [30]-[33]). Once found it should have been given to the Tribunal but it had not been. Justices Moore, North and Mansfield concluded that the Tribunal had not committed jurisdictional error merely by reason of that fact. Their Honours held that the duty under s 418(3) was not imposed on the Tribunal but on the Secretary. The Secretary’s failure to comply with that obligation had not vitiated the Tribunal’s decision (at [51]).

98    However it is important to note that in WAGP, before addressing whether a breach of s 418(3) simpliciter could constitute jurisdictional error, the Court had considered, and rejected, the applicant’s submission expressly advanced on the basis of Muin that he had been denied natural justice (see [34]-[40]).

99    There was no suggestion in WAGP that the applicant had been misled by the Tribunal to conduct his part in the hearing on a false premise regarding the materials which were before the Tribunal. In WAGP both the applicant and the Tribunal shared a common understanding. They both knew there was a missing document and in any event, as the Court noted at [40], the Tribunal had assumed in the applicant’s favour that the missing document would have confirmed the applicant’s evidence.

100    Therefore in contradistinction to the circumstances applying in Muin, there had been nothing to suggest that the applicant had been misled or disadvantaged by anything done or not done by the Tribunal. That consideration is also relevant to their Honours’ observations at [65]:

There may be some analogy between the obligation imposed upon the Secretary under s 418(3) with that imposed upon a prosecuting authority to disclose to the defendant all material which may be of relevance to the defence, including material which may be helpful to the defendant:  See R v Ulman-Naruniec (2003) 143 A Crim R 531 at [136]-[137]. The breach of that obligation may lead to a conviction being quashed: see e.g. Grey v R (2001) 184 ALR 593. But it is not quashed because the court committed jurisdictional error; rather it is quashed because the accused has been unfairly prejudiced and may have lost a fair chance of acquittal: Grey v R at [26]-[27].

101    We are satisfied, read as a whole, their Honours’ reasons reinforce the law expressed by Sackville J in Applicants S487/2002.

102    The Full Court in SZOIN was invited to reconsider WAGP but declined to do so. The relevant facts in that case were that certain medical reports had come into the Secretary’s possession after the Secretary had sent the relevant materials held to the Tribunal. Those later acquired reports were not given to the Tribunal. The Court, divided as to whether the Secretary’s duty pursuant to s 418(3) had an ongoing operation, the plurality (Bennett and McKerracher JJ) holding that it did; Rares J finding that the Secretary’s duty had been exhausted once, having been notified of the review, the Secretary had provided the materials to the Tribunal.

103    However, the plurality appears to have accepted that there might be an extreme case where the Secretary’s failure to give the Tribunal a document would be “so clearly critical that it could only be inferred that failure to supply it to the Tribunal meant there was no discharge of the obligation to form a view” (at [54]). Moreover, the plurality, at [64], cited with approval Perram J’s reasoning in SZNZK at [20] that:

an error in the performance of a function under s 418 by the Secretary cannot result, at least without something more, in a jurisdictional error by the Tribunal.

In our opinion the caveat expressed by the words “at least without something more” in that passage recognises and accommodates the exceptions required by the High Court’s decisions in Muin, Aala and SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189; 81 ALJR 1401; 96 ALD 510 at [65].

104    We note that counsel for the First Respondent accept that the Full Court in WAGP had been correct to conclude that although s 425 has been amended, the essence of the powers and obligations considered by the High Court in Muin remain in the Act such that the High Court’s reasoning has not been weakened (written submissions at [20]).

105    The cases cited for the First Respondent settle a question not resolved by Muin, that is, whether in and of itself a failure of the Secretary to comply with his or her duty is sufficient to constitute jurisdictional error in the Tribunal. They resolve that question in the negative, subject to the possibility of an extreme case as adverted to in SZOIN.

106    None of the cases purports to narrow the principle established by the High Court in Muin and Aala. That is, it is a failure of s 425 of the Act if the failure to provide information causes the Tribunal (even innocently) to mislead an applicant to mistakenly believe that a state of affairs exists and that in turn affects the manner in which the case is conducted to the applicant’s detriment. In any event we would be bound by the hierarchy of precedent to apply the reasoning of the High Court.

107    To the extent that the First Respondent’s submissions (at [20]-[27]) suggest that a different conclusion might be open to us, we are satisfied that that would involve a misreading of the cases cited and we reject that proposition.

Conclusion

108    The circumstances of this matter materially are indistinguishable from those that arose for decisions by the High Court in Muin and Aala.

109    As Callinan J noted in Aala at [206]:

This is not a case in which a Tribunal has merely misapprehended a fact and therefore has only made an error of fact within jurisdiction… [the Tribunal] mistakenly, but nonetheless prejudicially to the prosecutor, caused him to believe that a state of affairs relating to the manner in which he might choose to conduct his case existed when in fact that state of affairs did not exist.

110    The FCCA is burdened with a high volume of applications for judicial review in respect of decisions made by the Tribunal. Many such applications may be lacking in merit. We would not want to discourage its judges making oral decisions. Oral decisions will often be appropriate, even necessary, to deal with such matters in a busy court.

111    However there is an irreducible obligation upon any judge to give at least brief reasons for the conclusions they have reached. As we note that duty was not performed with respect to Ground 4 by the primary judge.

112    It is concerning that his Honour then sought submissions relevant to s 486E of the Act. That section applies only to proceedings lacking any reasonable prospect of success. Had such a finding been made, the Appellant’s pro-bono counsel might have been made personally liable for the Appellant’s costs. Counsel for the First Respondent, Mr Knowles, robustly but very properly, opposed that course. His conduct in that regard was exemplary. It was consistent with the Minister’s duty as a model litigant. It provides an example of counsel’s duty to the Court being honourably discharged.

113    For completeness we note, that no ground of appeal was advanced that the primary judge failed to give adequate reasons. Had that ground been advanced the decision might have been set aside on that basis without the requirement of this Court descending to the analysis as set out above. However the parties each approached this appeal on the basis that this Court should examine the evidence and make any requisite findings. We are satisfied given that all of the relevant evidence was documentary and not subject to cross-examination that this appeal court was as well positioned as the primary judge to draw the conclusions of fact necessary to dispose of this appeal. The conduct of the parties in relation to this appeal proceeded on the basis that we should do so.

114    The appeal must be allowed. The orders of the FCCA dated 16 August 2016 be set aside and in lieu thereof it be ordered that the decision of the Tribunal made on 20 May 2015 be quashed and his review application remitted to the Tribunal for determination according to law. The Appellant is entitled to have his costs in this Court and the Court below paid by the First Respondent.

Associate:

Dated:    13 April 2017