FEDERAL COURT OF AUSTRALIA

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 577

MIGRATION - application for protection visa - review of decision of Refugee Review Tribunal – whether Tribunal failed to accord the applicant procedural fairness - whether Tribunal failed to comply with provisions requiring it to notify the applicant in writing of information upon which it based its decision.

ADMINISTRATIVE LAW – review of decision of Tribunal – whether failure of Tribunal to comply with legislative requirements amounted to reviewable error – effect of privative clause.

Judiciary Act 1903 (Cth), s 39B

Migration Act 1958 (Cth), ss 414, 418, 420, 423, 424, 424A, 426, 427, 474

Migration Regulations regs 4.41, 5.01, 5.02, 5.02A

Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 - referred to

Craig v State of South Australia (1995) 184 CLR 163 - considered

Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 - referred to

Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 - referred to

Minister for Immigration &Multicultural Affairs v Al Shamry [2001] FCA 919 - referred to

NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 - referred to

NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281 - referred to

Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196 - referred to

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 - referred to

R v Coldham; Ex parte The Australian Workers' Union (1982) 153 CLR 415 - referred to

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 - considered

R v Murray; Ex parte Proctor (1949) 77 CLR 387 - referred to

Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 - considered
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 - referred to

Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 - referred to

Sook Rye Son v Minister for Immigration & Multicultural Affairs (1991) 161 ALR 612 - referred to

Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167 - referred to

Zhang v Minister for Immigration Local Government and Ethnic Affairs (1993) 45 FCR 384 - referred to

SAAP & ANOTHER v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S.204 of 2001

MANSFIELD J

10 MAY 2002

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application is dismissed.

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

REASONS FOR JUDGMENT

1                     This is an application under s 39B of the Judiciary Act 1903 (Cth) to set aside a decision of the Refugee Review Tribunal (the Tribunal) given on 18 October 2001.  The Tribunal affirmed the decisions of a delegate of the respondent made on 19 June 2001 refusing to grant to the applicant and her daughter protection visas for which they had applied under the Migration Act 1958 (Cth) on 25 April 2001, shortly after their arrival in Australia on 24 March 2001.  It is plain that the second applicant, the daughter of the first applicant, is only of young years and did not herself have a claim to be a refugee.  She sought a protection visa solely on the basis of being a member of the family of the first applicant.  It is only necessary on this application to address the contentions of the first applicant, who I will now call the applicant.

the claims

2                     The basis of the application was that the applicant is of a religion known as Sabian-Mandean, and by reason of her religion she was subjected to harassment, and discrimination in employment, in education, and in the way the legal system operated in Iran by reason of the practise of her faith.  The Sabian-Mandean religion is a pre-Christian religion.  Although the numbers of its adherents as estimated varies significantly, there are many thousands of Sabian-Mandeans in Iran.

3                     Counsel for the applicant, in his helpful submissions, identified the circumstances upon which the applicant relied as evidence of having a well-founded fear of persecution.  They are the harassment and discrimination applying to Sabian-Mandeans in Iran including by the abduction and forced conversion to Islam or the disappearance of a number of Sabian-Mandeans, by the fact that during a religious ceremony in July 2000 the applicant’s husband had lost the sight of an eye when he was hit by a rock thrown by one of a group of Muslims, by the fact that the applicant’s elder daughter had been the subject of an abduction attempt by Iranian authorities with a view to forcibly converting her to Islam, and by the fact that, in August 2000, the applicant was discovered by Iranian authorities working as a hairdresser in circumstances where Sabian-Mandeans are not entitled to work as hairdressers in Iran because she came into contact with Muslims.  The applicant was thereupon dismissed and subsequently fined, and her hairdressing salon was burnt down.  The applicant told the Tribunal that she was or would be suspected of eavesdropping on Muslim clients and of misusing the information that she then obtained.  The applicant claimed that she too had been the victim of an assault some years before by reason of her religion.

the tribunal’s reasons

4                     The Tribunal’s reasons follow the conventional course of referring briefly to the nature of the visa sought, the relevant legislation, and the definition of “refugee” in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention).  In addition, the Tribunal in this matter referred to the definition of persecution in s 91R of the Act.

5                     The Tribunal then turned to the applicant’s claims and evidence.  It recited the information she provided at her initial interview on 8 April 2001, in her application for a protection visa dated 25 April 2001, and at the hearing before the Tribunal on 5 September 2001.  At the Tribunal the applicant was also accompanied by her elder daughter who attended to support her mother, and by two witnesses Mr Toaumeh Zahrooni and Mr Ahmed Al Tamimi.  In the course of the hearing, the applicant’s elder daughter also gave evidence in circumstances to which it will be necessary to refer below.  The applicant was also accompanied at the hearing by a migration adviser.

6                     After referring to independent country information concerning Iran, including in particular concerning the Sabian-Mandean religion in Iran, the Tribunal addressed its findings and conclusions.  It identified the applicant’s claims for refugee status as being on the grounds of an imputed political opinion, and her religion.  Based upon the contention of her migration adviser, it also identified three incidents which particularly illustrated her vulnerability to persecution if she were to return to Iran:  the loss of her husband’s eye in the incident referred to above, her treatment when identified as an unlicensed hairdresser, and the flight of her elder daughter from Iran.

7                     The Tribunal, having reminded itself of the need to adopt a liberal attitude in relation to proof of refugee status, and to be cautious in forming an adverse view as to the assessment of the credibility of a visa applicant given the difficulties often faced by asylum seekers in presenting their claims, was nevertheless not prepared to accept the applicant as a reliable witness.  It said:

“However, the Tribunal is not satisfied on all the evidence that the applicant is at risk of persecution by the Iranian authorities for the reason of her religion or an imputed political opinion.  The Tribunal has come to this conclusion for the reasons discussed below, including, [sic] that the applicant is not credible in respect of the main elements of her claims for protection.  The Tribunal is led to conclude that she is not in genuine fear of persecution nor that there is a real chance that she will suffer persecution on return to Iran.”

8                     After referring to independent country information briefly, the Tribunal accepted that the applicant and her family have always been practitioners of the Sabian-Mandean religion.  It also accepted that, because of their religion, they have suffered discrimination and harassment in their community, especially in respect of the children’s education.  It also accepted that the applicant’s husband had lost the sight in one eye as a result of a member of the community throwing a stone at him during a baptism ceremony at a local river.  It rejected the applicant’s evidence that that had occurred in July 2000, and pointed out that her elder daughter had told the Tribunal that it had occurred five or six years ago, and that the applicant “accepted that her daughter would know the correct date”.  Consequently, the Tribunal found that incident to have occurred five or six years ago, and to have demonstrated a hatred for and lack of tolerance of Sabians by individual members of the local Muslim community.  It did not consider that that incident was a sufficiently serious one to have created in the applicant some years later a genuine fear of persecutory harm under the Convention.  The Tribunal’s use of the word “genuine” in that context must be taken as a finding by the Tribunal that the applicant, by reason of that incident alone, does not have a subjective fear of persecution by reason of her religion.

9                     The Tribunal noted that independent country information on the treatment of Sabian-Mandeans did not confirm the applicant’s claim of attempts to force conversions upon such persons through kidnappings, and that there is no independent evidence that Sabians are pressured into converting to Islam in that way.  Although it referred to information that pressure had been brought to bear on the Sabian community, that pressure did not include the violent and forced conversions claimed by the applicant or her elder daughter and the witness Mr Zahrooni.  In the light of the independent country information, and the Tribunal’s assessment of the credit of the applicant and her witnesses, it did not accept that all the incidents referred to by the applicant of harassment, discrimination and violent conversions to the Muslim faith had taken place.  It did not accept that there is systemic harassment or persecution of Sabians in the applicant’s area of Iran in the way claimed by the applicant.

10                  The Tribunal rejected the applicant’s claim to have come under suspicion as a spy through over-hearing conversations while her clients were having their hair done as “highly implausible”.  It was not a fear which she put forward when she was first represented, nor in her application for a protection visa.  The Tribunal did not accept that she was, or would be considered, a spy against the government by virtue of having worked as a hairdresser.  It specifically rejected the evidence of the two witnesses referred to as being unconvincing and inconsistent.

11                  The Tribunal then turned to the evidence from the applicant’s elder daughter.  It had been claimed by the applicant that the family had decided generally to escape from Iran to find a safer life, and that her elder daughter had been chosen as the first to leave because she is an attractive young woman.  The Tribunal commented upon the elder daughter’s evidence in the following terms:

“In evidence before the Tribunal [she] gave very unconvincing and inconsistent testimony … about the circumstances that lead her to leave Iran and seek protection from the Australian government.  Her evidence and that of the applicant was most unconvincing and conflicted seriously on where and how an attempt or attempts to abduct and convert [her] were made and on the issues of whether [her] departure from Iran was caused by [her]husband being drug addicted and in respect of [her] difficulties in obtaining a divorce.  On the evidence, the Tribunal is not satisfied that any attempt was made to convert [her] to the Muslim faith, nor that there was an attempt or attempts to abduct her for this purpose.

It was clear from the evidence of [the elder daughter] that she and her siblings were educated at the Khoramshahr Public School but the requirement to study Islam was a major reason for them not progressing further at school or to a university education.  The Tribunal accepts [her] evidence on this issue and finds that the applicant’s claim in her written statement dated 22 April 2001 that all her children were refused admission to a school in Iran to be a substantial exaggeration of the true position.  The Tribunal finds on the evidence that the applicant’s children have not been deprived of a school education and is not satisfied that they or the applicant have suffered persecution on this ground.”

12                  The Tribunal found that the applicant, like many Sabians, is not eligible for employment positions that would be open to Muslims, including in the Iranian civil service.  However, as the applicant had been able to earn a livelihood, and her capacity to do so had not been presented as an issue on her claims, it found that this was not a matter of substantial concern to her.  It noted the applicant’s husband was still employed as a jeweller.

13                  It also addressed the claimed sexual assault suffered by the applicant.  It accepted that she was sexually assaulted in Shiraz many years ago when the family lived in that city, but it was not satisfied that the applicant knew her attacker or attackers, or that they were members of any Iranian authority, or that she was assaulted because of her Sabian faith.  It was not satisfied that that particular assault advanced the applicant’s claim for protection.

14                  Further, it did not accept that the applicant had left Iran illegally, as it had no reason to believe that she left Iran other than legally and on her own properly issued Iranian passport.  It did not accept her reasons for her departure for Australia.  It noted that the penalty for an illegal departure in her circumstances is likely to be a fine.  Similarly, it decided that the act of applying for asylum in Australia would not produce much more than verbal harassment as the applicant did not have a significant political profile.  She would therefore be able to return to Iran without being persecuted for having left Iran.  The Tribunal also was not satisfied, in the light of its adverse findings about her credibility and its rejection of the key elements of her claims, that the authorities will impute or might impute a dissident political opinion to her or that she would be of any interest to the authorities because of her religion.

15                  The Tribunal concluded:

“The Tribunal has carefully considered all the problems the applicant has experienced, including the harm, discrimination and harassment she and her family experienced.  The Tribunal is not satisfied that either individually or cumulatively these difficulties are sufficiently serious to amount to persecution under the Convention.”

It specifically said that it was not satisfied that the applicant is in genuine fear of persecution because of her religion or because of any imputed political opinion arising out of her employment as a hairdresser.  It also found that it was not satisfied there is a real chance of her being persecuted for those reasons if she were to return to Iran.  Consequently, the criterion specified in s 36(2) of the Act, namely that the applicant is a person to whom Australia has protection obligations under the Convention, was not satisfied.

the grounds for the relief claimed

16                  The applicant alleges that the Tribunal acted outside its jurisdiction, and so committed jurisdictional error in a way which is reviewable, notwithstanding s 474(1) of the Act, in two respects.  The first was by relying upon the evidence from the applicant’s daughter “which it had obtained unlawfully”.  The second is by failing to give to the applicant particulars of information obtained from her elder daughter which it considered would be part of the reason for affirming the decision under review, and by failing to invite the applicant to comment on that information, as required by s 424A of the Act.  It is appropriate to address those two matters in turn.

(a)        The alleged unlawful obtaining of evidence

17                  At the commencement of the hearing on 5 September 2001, although the applicant’s elder daughter was present, it was not intended by the applicant that she give evidence.  She had not been required by the Tribunal to be present.  However, the Tribunal member indicated that he may want to take some evidence from her.  She was therefore sworn to give evidence.

18                  At the time no objection was taken to that course either by the applicant or by her adviser.  In the course of his introductory remarks, the Tribunal member also said:

“During the hearing I will tell you about any information I have that is adverse to your claim, and you will have an opportunity to comment on that information, and so will your adviser.”

After the two independent witnesses had given evidence, the Tribunal member indicated that he wished to hear evidence from the elder daughter and that he would do so in the absence of the applicant.  Arrangements were made for the applicant to leave the hearing room for a short time.  Again, no objection to that course was raised at the time either by the applicant or by her adviser.

19                  It is contended that the evidence of the daughter was obtained unlawfully, and was used then by the Tribunal to find adversely to the applicant on her credibility and to reject many of her claims about persecution.  The argument runs that the Tribunal is empowered to compel the giving of oral evidence by way of “summons” to appear to give evidence under s 427, and is not otherwise empowered to compel the giving of oral evidence.  The daughter did not attend the hearing for the purpose of giving evidence, but rather simply to support her mother.  Thus, it was the Tribunal which unlawfully requested the daughter to give evidence without having formally summonsed her.

20                  I do not accept that the Tribunal acted unlawfully in procuring the evidence from the applicant’s daughter in the way in which it did so.  It is charged by s 420 to carry out its functions fairly, justly and informally.  It is not bound by technicalities, but must act according to substantial justice and the merits of the case.  Its functions, and the way it may exercise its powers to fulfil its functions, are contained in Part 7 of the Act. Once a competent application for review is made to the Tribunal, it is obliged to review the decision:  s 414(1).  The Registrar of the Tribunal is obliged to notify the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs of the application and the Secretary then is obliged to give to the Registrar a copy of a statement about the decision under review that sets out the findings of fact made by the person who made the decision, refers to the evidence on which those findings were based, and gives reasons for the decision:  s 418(2).  The Secretary is also obliged to 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:  s 418(3).  The applicant is entitled to give information to the Tribunal by statutory declaration and by written arguments:  s 423(1).  The Tribunal is empowered by s 424 to seek additional information that it considers relevant, provided it then has regard to that information in making its decision.  It is empowered to invite a person to give additional information.  Section 424(3) describes how the Tribunal should invite a person to give information.  However, s 424 does not otherwise prescribe the means by which the Tribunal may get information from other persons.  Section 424(1) provides:

“In conducting the review, the Tribunal may get any information that it considers relevant.  However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.”

Section 424(2) commences with the words “Without limiting subsection (1)” and then permits the Tribunal to invite a person to give information.  The information gathering process is clearly not confined to that involving an invitation under s 424(2) given in accordance with s 424(3) and as further explained in s 424B.  Nor is the obligation to give certain information to the applicant under s 424B confined to information obtained under the “invitation” process, although s 424A(1)(a) and (c) limit the sort of information to which s 424A applies.  Depending upon the nature of the information it procures, it may be obliged to notify the applicant of that information and to give the applicant an opportunity to comment on it:  s 424A.  Section 426 entitles an applicant to give the Tribunal written notice when responding to an invitation to appear before the Tribunal, that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice, and the Tribunal is obliged to have regard to those wishes.  It appears in this case that the two persons concerned were so nominated and, by arrangement, attended to give evidence.  The Tribunal is also is empowered by s 427 to take evidence on oath or information, and to “summon a person to appear before the Tribunal to give evidence”:  s 427(3)(a), provided that person is in Australia.

21                  I do not consider that, under that scheme, the Tribunal is precluded from calling evidence from any person unless that person is nominated by an applicant under s 426 of the Act.  The applicant did not contend to the contrary.  Once it is accepted that the Tribunal may call evidence from a person who it considers may assist it in deciding an application for a protection visa, I do not accept that under the procedural scheme, the Tribunal is not entitled to procure oral evidence on oath or affirmation from such a person unless that person is summonsed to give evidence by the exercise of the power under s 427(3)(a) by being obliged to attend under subpoena.  There is no reason why the legislature should have intended that restriction upon the Tribunal’s powers.  The procedure prescribed in s 426(2) entitles the Tribunal to invite a person nominated by an applicant to give evidence at a hearing to attend that hearing.  That person may choose to attend voluntarily.  If not, the Tribunal may summons that person to compel attendance.  However, it does not follow that a person attending a hearing voluntarily may not give evidence unless summonsed.  There is no reason why that should be the case.  Section 427 provides a means whereby the Tribunal may, if necessary, procure the attendance of a person to give evidence by summons.  But it does not follow that that is a procedure by which the Tribunal must, in all circumstances, procure the attendance of a person to give evidence.  If a person nominated by the applicant to give evidence may attend the hearing voluntarily at the request of the Tribunal, and may give evidence without being summonsed under s 427(3)(a), I can see no reason why the Tribunal should be prevented from calling any person to give evidence if that person is willing to do so without a summons.  The coercive power in s 427(3)(a) is an aid to procuring evidence, but is not a necessary precondition to the Tribunal procuring evidence.

22                  It may not be a common circumstance that the Tribunal has the opportunity to procure, on a consensual basis, evidence from a person other than the applicant or a person nominated by an applicant under s 426(3) of the Act.  This is one of those circumstances.  The applicant’s elder daughter was present at the hearing, and in the Tribunal’s view could give relevant evidence.  In my view the Tribunal did not contravene any provision of the Act by inviting her to do so, and permitting her to do so without formally issuing a summons directing her attendance.

23                  I reject the alternative argument on behalf of the respondent that the word “summon” in s 427(3) does not refer to some compulsory means of procuring the attendance of a person at a hearing to give evidence.  The point was made that the word used is “summon” rather than “summons” or “subpoena”.  I think that is a semantic difference only.  In my view s 427 is designed to empower the Tribunal, where necessary, to procure the attendance of a person at a hearing for the purposes of giving evidence by issuing a summons or subpoena to that person, and should be read in that sense.

24                  In view of the conclusion I have reached that the evidence of the applicant’s elder daughter was not unlawfully obtained, it is not necessary to address the contention on the part of the applicant that, in the circumstances, the use of “unlawful evidence” gave rise to a jurisdictional error, or amounted to the Tribunal acting outside its jurisdiction by having exceeded its area of operation or by having ignored mandatory requirements for, or restraints upon, the exercise of its power:  see e.g. Craig v State of South Australia (1995) 184 CLR 163.  The question in relation to whether such alleged conduct on the part of the Tribunal renders the Tribunal amenable to any order under s 39B of the Judiciary Act, notwithstanding s 474(1) of the Act also does not arise.

25                  I note the respondent’s further contention that, if the Tribunal erred by receiving the evidence of the applicant’s elder daughter in the circumstances, it erred only in admitting in evidence material which might not have been properly admissible.  That, the respondent contends, cannot constitute a jurisdictional error.  It points out that under s 420 of the Act, the Tribunal is not obliged to comply with legal form or the rules of evidence.  I do not need to address that contention.

(b)        The alleged failure to comply with s 424A

26                  The contention is that the Tribunal did not comply with s 424A of the Act because it failed to give to the applicant information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review and by failing to invite the applicant to comment upon it.  Section 424A relevantly 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 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.”

It is not suggested that subs (3) operates in this matter so as to exclude the information about which the applicant’s contentions are based from the scope of s 424A(1) and (2).

27                  The argument runs that, as the applicant was not present during the evidence of her elder daughter, the Tribunal in the course of that evidence obtained material which formed part of the reason for the Tribunal affirming the decision under review, in respect of which it did not give to the applicant particulars of that information or an opportunity to respond to it.  The applicant then contends that the failure to do so amounted to a failure to comply with s 424A, and that that failure is itself a breach of the primary rule of procedural fairness imposed by the legislation.  She further contends that the failure to comply with that rule is a ground of jurisdictional error as the Act did not at the time abrogate the obligations upon the part of the Tribunal to accord procedural fairness to the applicant:  see per Gaudron and Gummow JJ (with whom Gleeson CJ agreed) in Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at [38-42], per Kirby J at [142], and per Hayne J at [169] (Aala).  Compliance with s 424A is argued to have been intended to be an essential pre-condition to the valid exercise of power by the Tribunal, being an aspect of procedural fairness recognised by the legislation.  It is further contended that that obligation is such a fundamental requirement that the legislature did not intend it to be avoidable by the operation of s 474(1) of the Act, i.e. the legislature did not intend to increase the jurisdiction of the Tribunal to make a valid decision when it had not complied with s 424A of the Act.

28                  Before addressing that matter, it is necessary to explore whether s 424A in fact applied in the circumstances of this matter, and if so, whether it was contravened by the Tribunal and in what respect.  It is only in the light of conclusions on those questions, that the effect and operation of the privative clause in s 474(1) of the Act should be addressed.

29                  It has been decided that s 424A operates not simply prior to but in the course of the hearing: Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919  (Al Shamry) per Ryan and Conti JJ at [20] and per Merkel J at [38].  In Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196 (Paul), the Full Court confirmed that s 424A has an ongoing operation until the Tribunal delivers its decision.  There is no earlier point in time at which the need to comply with that section “crystallises” and is then spent.  That is partly because s 424A applies to information which the Tribunal considers “would” be the reason or part of the reason for affirming the decision under review.  As both Emmett J at [42-43] and Allsop J (with whom Heerey J agreed) at [94] said, ultimately it is the Tribunal’s reasons for decision which will disclose whether information has that particular character, and it is by reference to those reasons that the Tribunal’s compliance with s 424A will be measured.  I reject the respondent’s contention that the operation of s 424A is spent at the latest once the hearing commences, based upon the sequence of provisions in Div 4 of Pt 7 of the Act for the reasons given by Emmett and Allsop JJ in Paul with which I respectfully agree.  Moreover, as Merkel J said in Al Shamry at [39], s 424A enacts a basic principle of procedural fairness that a person whose interests are likely to be affected by an exercise of power should be given an opportunity to deal with information adverse to that person’s interests.  There is no reason why the legislature would not have intended that that principle should be excluded in respect of adverse information of which the Tribunal learns only at or during the hearing.

30                  In any event, the respondent contends, the requirement of s 424A was complied with.  The means of notification dictated by s 424A(2)(a) did not apply to the applicant because she was at the time in immigration detention.

31                  Section 424A(2)(b) obliges the Tribunal to give to the applicant, as a person then in immigration detention, particulars of any information to which s 424A(1) applies, and the opportunity to comment on that information

“ … by a method prescribed for the purposes of giving documents to such a person.”

Regulation 5.02 of the Migration Regulations is in the following terms:

“For the purposes of the Act and these Regulations, a document to be served on a person in immigration detention may be served by giving it to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf.”

The term “document” is defined in reg 5.01 to include a notification.  There is a reasonable argument that the use of the permissive word “may” in reg 5.02 is intended to enable service only by giving the document under consideration either to a person in immigration detention personally or to an authorised person.  It may not be intended to leave open some other means of service of the document upon either of those two categories of person, for example by post.  I note that there is no other provision of the Regulations directly applying to the service of documents such as a notification required by s 424A on persons in immigration detention (compare reg 2.16).  Regulation 4.41 dealing generally with the service of documents is expressed to apply only if no other provision as to the manner of giving or serving the document is made by the Act or the Regulations:  reg 4.41(1)(b).  See per Burchett J in Sook Rye Son v Minister for Immigration & Multicultural Affairs (1991) 161 ALR 612 at 615-616.  Moreover, reg 5.02A(2)(c) states that, in the case of a notice of cancellation or proposed cancellation of a visa to a person in immigration detention, the notice “must” be given in the manner mentioned in reg 5.02.  In that context, it is not likely that the use of the word “may” in reg 5.02 is intended to leave open some other non-expressed form of service when the mandatory word “must” in reg 5.02A(2)(c) is part of the chain of communication.  It is more likely that reg 5.02 provides alternative means of service, one of which must be complied with.

32                  However, I do not need to decide that question.  It is clear that the notification required by s 424A in the case of a person in immigration detention must be given in writing.  That is because s 424A(2)(b) refers expressly to a method prescribed for the purposes of giving documents.

33                  In this matter, the respondent acknowledges that no such notification was given.  However, he contends that the applicant was in fact given particulars of the information which the Tribunal considered would be part of the reason for affirming the decision in part by questions asked by the Tribunal and in part by the presence of her migration agent during the course of the whole of the hearing and by that migration agent having been given the opportunity to comment upon it or to ask her questions upon it.

34                  It is apparent that the Tribunal had some difficulty in obtaining a coherent version of events from the applicant in the course of her evidence.  The Tribunal had the benefit of earlier interviews with the applicant, including her written statements and the written submissions of her migration agents.  At the hearing, as the transcript reveals, the applicant did not express herself in a fully coherent and logical way.  That was not through any fault of the Tribunal, or through any pressure on its part.  The way the hearing evolved was clearly in part influenced by the difficulties the applicant had in expressing herself.  When she came to give evidence, it said:

“I won’t need to take evidence from you at length but I did want to clear up a few matters with you.  The first thing is I’ve just taken evidence from your daughter and there are three incidents that have been raised on your behalf as bases for your claim for protection.”

The interpreter then indicated that, whilst able to translate exactly what had been said, the interpreter considered that the applicant would not be able to cope with what is being said.  The Tribunal member then put the matter another way:

“Your daughter has just given evidence to me.  There are three matters I wanted to raise with you.  The first matter is the loss of your husband’ s eye.  As far as the timing of that is concerned, your daughter has told me it happened five or six years ago.  Is that correct?”

The subsequent exchange indicates that the applicant did not provide a clearly responsive answer.  It suggests that the elder daughter attempted to contribute to the discussion at that point, but was asked not to do so.  The applicant is recorded as having said, through the interpreter, that she could not recall the exact date, but she thought it would be four to five to six years ago.  She said she did not really recall the time, but that her daughter knew about it.  She agreed it happened during the war.  She reaffirmed that she thought it was four or five or six years ago.  There is further discussion, when the Tribunal member seeks to confirm with the applicant that it did not happen only one year or so ago, but no clear and unequivocal response is received.

35                  The Tribunal next raised the question of how the applicant could be a hairdresser and known as a Sobi (Sabian) at the same time.  The applicant was asked how she was able to work as a hairdresser with her Sobi name for so many years?  She answered, through the interpreter, that she was known as [name omitted], her father’s name, and she did not use the name Sobi at the end of her name.  The Tribunal endeavoured to ascertain why in the light of that answer, the applicant might fear being suspected of working as a spy.  Again the responses indicate that the applicant had difficulty in comprehending and responding to that questioning.

36                  Thirdly, the Tribunal said that the daughter had given evidence that she had gone to school and that her siblings also had gone to school.  The response through the interpreter was that they did go to school.  The answer is recorded in the transcript as follows:

“Basically (indistinct) when they went to school.  Even my youngest daughter I took at that school but after paying – however when they know that she is from the (indistinct) sect, she was closed out.”

37                  Finally the Tribunal member directed the applicant’s attention to the allegation that the authorities tried to abduct her elder daughter.  Again, from the response provided through the interpreter, it appears that the applicant had difficulty understanding and responding to that question.  The subsequent exchange indicates that the applicant said that that may have occurred at a place called Mohamara, and when it was suggested that she had previously said that that attempted abduction had occurred elsewhere, the applicant nominated the place Ahvaz.  The Tribunal then endeavoured to clarify the matter and was told that the attempt had been made apparently in Ahvaz and also in Mohamara.  The Tribunal then completed the hearing after some more questions in the following terms:

“I won’t ask you any further questions about that but I may ask your adviser to inform me further. … I have no further questions.  Could I suggest that we adjourn the matter.  I am prepared to close the hearing now and receive written submissions, unless you want especially to make oral submissions.  I am happy to arrange another hearing time to receive oral submissions but in the circumstances I would prefer written submissions and I’d write to you indicating what matters I’d like to hear first.”

The Tribunal member concluded by telling the applicant that he would give close consideration to everything raised and that he would be talking with her migration adviser about other aspects of the case which he needed to hear about.

38                  Counsel for the applicant pointed to the passage referred to in [11] above of the Tribunal’s reasons indicating the way in which the Tribunal used the evidence of the applicant’s elder daughter.  It is submitted that that evidence provided information of which the Tribunal made use on the following topics:

·        the attempts of the authorities to convert her elder daughter to Islam;

·        the attempts of the authorities to abduct her elder daughter;

·        the circumstances of her elder daughter’s departure from Iran;

·        the information obtained from her elder daughter about the schooling of the applicant’s children.

39                  I accept that each of those matters save for the elder daughter’s reasons for leaving Iran involved to some degree information that the Tribunal considered were part of the reason for affirming the decision under review.  Each of those matters save for the elder daughter’s reasons for leaving Iran was said by the Tribunal to involve serious conflict between the evidence or claims of the applicant and the evidence of her elder daughter.  The elder daughter’s evidence about why she had left Iran was assessed as inherently contradictory, but that evidence did not concern the applicant’s credibility in a direct way.  In the light of that passage in the Tribunal’s reasons, I do not accept the respondent’s particular contention that the inconsistent evidence about whether the applicant’s children had been able to receive schooling in Iran was of no significance to its assessment about the reliability of her claims.

40                  However, in my judgment, the respondent is correct in its contention that in substance the applicant was aware of the nature of the evidence of her elder daughter, and that it might be of significance to the Tribunal’s assessment of her claims, and that she had the opportunity of commenting upon that evidence.  The Tribunal took evidence from the applicant’s elder daughter and from the two other witnesses before hearing the applicant’s evidence.  During the evidence of her elder daughter, the applicant was not present but her migration agent remained in the hearing room.  Through him, the applicant had the opportunity of knowing what her daughter said, including whether any of her evidence was different from that of the applicant.  When the applicant gave evidence, the Tribunal specifically drew to her attention for her comment what her elder daughter had said about the timing of the incident when the applicant’s husband was struck in the eye with a stone, and what her elder daughter had said about her schooling and that of her siblings.  It also invited her comments upon the claims that her elder daughter had been abducted in an endeavour to persuade her to convert to Islam. 

41                  At the conclusion of the hearing, the Tribunal said to the applicant and her migration agent the words quoted in [36] above.

42                  No further written submissions were made on behalf of the applicant and no request was made by the applicant for the opportunity to present oral submissions to the Tribunal.  Although the Tribunal had said that it would write to indicate “what matters I’d like to hear first”, it did not do so.  Nor was it requested to do so.  The contrary is the case.  By letters of 10 and 18 October 2001, the applicant’s migration agent requested the Tribunal to make its decision as soon as possible, following the hearing on 5 September 2001.

43                  In the circumstances, assuming the rules of procedural fairness at common law apply to the decision-making processes of the Tribunal (see Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 (Miah), I do not consider that those common law rules were breached by the Tribunal in this instance.  The applicant had an opportunity to put her case, and was aware of the matters which were of significance to her case which emerged from the evidence of her elder daughter.  She also had an opportunity of responding to those matters, partly by what was put to her during the hearing and partly by being able to make submissions about those matters following the hearing:  see e.g. Miah at [99] per Gaudron J and the cases cited by her Honour.

44                  I do not therefore have to address the question whether a breach of the common law rules of procedural fairness of the nature alleged gives rise to jurisdictional error as discussed in Craig v South Australia (1995) 184 CLR 163 (Craig) and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 (Yusuf) so as to enliven the Court’s power to set aside the Tribunal’s decision under s 39B of the Judiciary Act.  Nor do I have to address the question whether that power could be exercised in the face of s 474(1) of the Act.  In NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263, Gyles J decided that it could not, but Wilcox J in Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 declined to follow that decision.  In that latter case, Wilcox J took the view at [63-64] that, upon the proper construction of the Act, jurisdictional error as explained by the High Court in Craig and in Yusuf empowers the Court to grant relief under s 39B of the Judiciary Act notwithstanding s 474(1) of the Act.

45                  I have found that the Tribunal did not, however, comply with s 424A of the Act because it failed to give to the applicant in writing particulars of the information obtained from the applicant’s elder daughter which it considered would be part of the reason for affirming the decision not to grant to the applicant a protection visa, nor did it invite the applicant in writing to comment upon that information.  The significance of that failure to comply with s 424A must, however, be measured in the light of the applicant learning of the evidence of her elder daughter by being present through her migration agent when that evidence was given, and by being asked about the significant features of it.  It must further be measured in the light of the applicant having an opportunity to comment upon that material again in part by being asked to comment on it when she herself was giving evidence, and in part by being given the opportunity to make submissions about it.

46                  The respondent’s failure to comply with s 424A, in the circumstances, has not in fact deprived the applicant of the opportunity to learn of material adverse to her claim or to comment upon it.  In practical terms, she has had the opportunity which s 424A is intended to provide.  The breach of s 424A is, in my view, not one which affected or which might have affected the outcome of her claim.

47                  The respondent contends that the privative clause in s 474(1) of the Act precludes the Court from making an order setting aside the Tribunal’s decision on this matter.  It is contended that s 474(1) precludes such an order where there has been a failure to comply with s 424A of the Act, whatever the nature of the failure.  I propose, however, to consider his contention only in the context of the particular non-compliance with s 424A which has been established, and in the context of the findings about the significance of that context.

48                  The respondent accepts that the apparent breadth of s 474(1) must be read subject to the Hickman principles:  R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 per Dixon J at 615-616.  In this matter, I accept that the decision by the Tribunal is a bona fide  attempt to exercise its power, that the decision of the Tribunal relates to the subject matter of the Act, and that the exercise of power by the Tribunal is reasonably capable of reference to the power given to it under the Act.  Consequently, the decision of the Tribunal does  not fall under any of the three provisos contained in the Hickman principles.

49                  It must also be recognised that the scope of operation of a privative clause such as s 474(1) of the Act is a matter of construction:  R v Murray; Ex parte Proctor (1949) 77 CLR 387 per Dixon J at 398.  Certain contraventions of the Act may escape the ambit of s 474(1) because it is the legislative intention that compliance with the particular statutory obligation is a precondition to the valid exercise of the power:  e.g. Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167.  As noted in [42] above there are inconsistent judgments of the Court about whether, on the proper construction of the Act, s 474(1) inhibits the power of the Court to grant relief under s 39B of the Judiciary Act in cases of jurisdictional error.

50                  In this matter, I do not consider that the Tribunal’s error is one in respect of which I would grant relief under s 39B of the Judiciary Act in any event.  The grant of such relief is discretionary:  Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; Zhang v Minister for Immigration Local Government and Ethnic Affairs (1993) 45 FCR 384; Aala at 91-92.  I have found that, in substance, the objective of s 424A has been achieved.  That is, I have found that the applicant has been provided with the degree of procedural fairness which the legislature intended.  The only missing feature is that she was notified of the information adverse to her claim and given the opportunity to comment upon it in a manner different from that which s 424A prescribed.  But the objective of the manner of notification in s 424A is to ensure that that notice and that opportunity were given.  Where that objective has been fulfilled, I regard the complaint of the applicant as a technical one only so that the particular breach has not deprived her of any benefit which she was intended to receive.  In the circumstances, I would decline to make any order under s 39B of the Judiciary Act even if it were not necessary to address s 474(1) of the Act.

51                  I do not, therefore, need to finally decide whether the particular breach of s 424A amounted to jurisdictional error on the part of the Tribunal.  But for s 474(1) of the Act, it is an apparently attractive proposition that each of the procedural prescriptions in Div 4 of Pt 7 of the Act is an essential precondition to the exercise of the decision-making power (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93-100]) or that each imposes “imperative duties” (an expression used in Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 per Gaudron and Gummow JJ at 632), so that contravention results in reviewable jurisdictional error.   That was the approach adopted by Wilcox J in Boakye-Danquah.  The particular contravention of s 424A in this matter might however suggest that it is necessary to look beyond the section itself to the nature of the particular procedural irregularity before categorising the contravention as a jurisdictional error.  It is also appropriate to note the respondent’s contention that the effect of s 474(1) of the Act is to broaden the lawful authority of the Tribunal so that its jurisdiction is limited only by the provisions in the Hickman principles:  The Queen v Coldham; Ex parte The Australian Workers’ Union (1982) 153 CLR 415 per Mason ACJ and Brennan J at 418-419.  The decision of Tamberlin J in NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281 would seem to support that contention.  As I have said, it is not necessary to finally resolve those issues as I would decline relief in any event.

conclusion

52                  For the reasons I have given, I have reached the view that the applicant has not established a basis upon which the Court should exercise its power under s 39B of the Judiciary Act.  I consider that this application should be dismissed.  I so order.

Associate:

Dated:              7 May 2002